S.346(2) BNSS | Remand Beyond 15 Days Of Accused Already In Custody Not Illegal, Habeas Corpus Won't Lie In Every Case: Gujarat High Court

The Gujarat High Court has observed that remand of an accused already in custody beyond the 15-day period prescribed under first proviso to Section 346(2) BNSS is not illegal, and a habeas corpus will not lie unless the remand order is shown to be patently illegal, without jurisdiction or passed mechanically.

For context, Section 346 BNSS refers to power of the court to postpone or adjourn proceedings. 

A Division Bench of Justice N.S. Sanjay Gowda and Justice D.M. Vyas were hearing two connected habeas corpus petitions filed by Vinodbhai Tilakdhari Tiwari (father of the detenus), seeking the release of his sons, who were in judicial custody in connection with a criminal case registered under various provisions of the BNS and the Gujarat Police Act.

The court referred to difference in the terminology in Section 346(2) and the first proviso of section 346(2) and said that it gives a clue as to why the terminology used in the provision are different thereby making the difference in terminology relevant.

"Section 346(2) contemplates a postponement or an adjournment of a trial, for which reasons have to be recorded. The reason why the proviso provides for a Court to remand an accused person to custody is fundamentally because it is quite possible that the trial is being adjourned or postponed due to some act attributable to the accused. In other words, there could be an attempt to protract the trial by the accused who is facing the trial and in such a situation the legislature has thought it fit to empower the Session Court to remand the accused to custody.  It may be possible that the accused may have been on bail until then and yet he could be making attempts to protract the trial by ensuring that the witnesses do not turn up, etc. It is for this reason that power has been conferred upon the Session Court to remand the accused to custody with the obvious intention of facilitating an expeditious conduct of the trial and to remove any impediments that is being caused for the conduct of the trial.

Section 346(2) basically clears that ambiguity and makes it clear that while postponing or adjourning the trial the Session Court does have the power to remand an accused to custody who is causing impediments for the conduct of the trial.  If he has been taken to custody due to the postponement of the trial, obviously, his detention cannot be for a lengthy period thereby delaying the trial and frustrate the intent of the legislature in ensuring a speedy trial. It is specifically for this reason that the remand period is fixed as 15 days when the accused is being taken into custody while postponing or adjourning the trial. If, however, the accused has already been in custody by virtue of the rejection of his request for bail, he is already under detention and there would be no such impediment for continuing the said detention. It must be kept in mind that by rejecting the request for bail, the Court had already come to the conclusion that incarceration of the accused was in the interest of justice. It is for this reason no time limit is prescribed while remanding a person, who is already in custody, while adjourning or postponing the trial". 

The court said if a person is already in custody after the investigation is completed his custody is not limited by any timeline, and it would be till the conclusion of the trial. It is for this reason. The court observed that Section 346 (2) simply states that the person in custody is to be remanded in custody and no time limit for the remand is stated.

The court clarified that under BNSS, it is only when a person is arrested or is being detained for the first time when the investigation is incomplete and underway, the period of detention is explicitly stated as 24 hours and not more than 15 days at a time and on the whole for 60 or 90 days.

"It is this period of 15 days, which is contemplated during the investigation stage, that is incorporated in the first proviso to S. 346 (2) when the trial is being postponed or adjourned. This period of 15 days can apply only when the Court decides to remand an accused to custody while adjourning the matter. If the accused is already in custody, all that the Court is required to do is to remand him once again in custody by issuance of a warrant and there is no question of setting a timeline for the remand," the bench said.

The detenus had been arrested in September and December 2024. Their applications for regular bail were repeatedly rejected by the Sessions Court, the High Court and, in one case, even by the Supreme Court. After filing of the charge-sheet and framing of charges, trial commenced before the Sessions Court, but had not progressed within reasonable time according to the petitioners.

After the examination of the first prosecution witness, the Sessions Court adjourned the matter and remanded the accused to custody for a period exceeding 15 days, allegedly in violation of the first proviso to Section 346(2) of the BNSS. The first proviso to Section 346(2) of the BNSS prohibits remand to custody for more than 15 days at a time. It was argued that such remand rendered their custody illegal and entitled them to immediate release through habeas corpus.

Appearing for the detenus, Advocate Bhargav Bhatt submitted that once the statute limits remand to a maximum of 15 days at a time after commencement of trial, any order extending custody beyond that period becomes non est, or invalid. Further orders extending such detention are also similarly invalid. He contended that when detention is contrary to an express statutory mandate, a writ of habeas corpus is maintainable without the detenus being required to separately challenge the remand orders. Further, Mr. Bhatt contended that the scheme of the BNSS envisages expeditious completion of trial and that once a trial has commenced, prolonged custody on account of delay in the conduct of trial renders the detention unlawful.

Opposing the petitions, Public Prosecutor Hardik Dave submitted that the custody of the accused was pursuant to judicial orders and could not be treated as illegal merely because of an alleged procedural irregularity. He further argued that, on the date of return of notice, fresh orders extending custody had been passed and the detention was lawful.

The Court held that habeas corpus lies only in exceptional situations where the remand itself is wholly illegal.

“If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction… or passed in an absolutely mechanical manner, the person affected can seek the remedy of habeas corpus. Barring such situations, a habeas corpus petition will not lie,” noted the Bench.

Importantly, the Court clarified that an order of remand passed by a criminal court cannot be indirectly set aside through a writ of habeas corpus, unless it is shown that the order is without jurisdiction or in total disregard of mandatory safeguards.

At the same time, the Court was careful to note that this does not mean that the Sessions Court is free to conduct trials at a leisurely pace. The Bench reiterated that the general provisions mandating day-to-day trial and the requirement of assigning reasons while adjourning matters continue to apply.

On facts, the Bench found that the detenus were continuously in custody under judicial orders and that their remedy, if any, lay in seeking bail or challenging the remand orders in accordance with law. The habeas corpus petitions were accordingly dismissed.

Case title: Vinodbhai Tilakdhari Tiwari v State Of Gujarat & Ors.

Case no.: R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 15962 of 2025 and connected petition

Counsel for petitioner: Advocates Mr Bhargav Bhatt, Mr. Devarsh Pandya, Mr. Manan S Doshi, Mr Kishan R Chakwawala

Counsel for respondent: Mr. Hardik Dave, Public Prosecutor, Additional Public Prosecutors Mr. Chintan Dave, Ms. Monali Bhatt, and Mr. Pranav Dhagat

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