Power of a Criminal Court in remanding an accused during inquiry and Trial:

The Criminal Procedure Code as well as Bharatiya Nagarik Suraksha Sanhita, 2023, both have a particular provision dealing with the matter of remanding the accused in custody while exercising the power to postpone or adjourn proceedings of a criminal case.

Section 309 (2) CrPC speaks “If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.”

So, Section 309(2) CrPC empowers a Court to remand an accused time to time while in custody at the time of postponement or adjournment of proceedings during inquiry and trial. However, a Court of Judicial Magistrate was barred from remanding an accused for more than 15 days at a time. Thus, the Criminal Courts other than the Courts of Judicial Magistrate like, Sessions Court, Special Court (NDPS), Special Court (POCSO) etc. were empowered to remand an accused for more than 15 days at a time during inquiry and trial.

Said provision has been inserted in the new law i.e. BNSS with a significant change that no Court shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

In this provision the term 'Magistrate' has been replaced by the word 'Court' confining the power of each and every Criminal Court within the limit of 15 days while remanding any accused in custody. So, it is no more open to the Higher Courts like Sessions Court etc. to remand an accused for a period of more than 15 days at a time. Thus, question arises, having no such power, whether a Criminal Court can grant a petition of Custodial Trial of an accused by passing an order that the accused shall remain in custody till conclusion of the trial, which is equivalent to passing an order remanding an accused for an uncertain period.

Commencement and Conclusion of Trial:

Though the term 'Trial' has been used in various provisions of CrPC and BNSS, but the same has not been defined any where in those statutes mentioning the stage of its commencement and conclusion. However, we have the precedents which dealt with such matters time and again.

In Hardeep Singh vs State Of Punjab & Ors^[1] it was held, “Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf.”

This case law further laid down, “the law can be summarised to the effect that as 'trial' means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the 'trial' commences only on charges being framed.”

So, as per the observation made by the Apex Court in Hardeep Singh case, in a criminal case 'Trial Commences' only after the framing of charge.

In another celebrated case between Sukhpal Singh Khaira vs The State Of Punjab^[2] it was ruled that in a criminal case trial concludes with the pronouncement of judgment if all the accused persons are acquitted. But if any of the accused persons is convicted, the trial shall continue upto hearing on sentence and shall come to an end only on pronouncement of sentence.

So, according to the above authority trial shall continue till delivery of judgment and in case of conviction it shall continue till pronouncement of sentence order. Thus, granting a petition to hold Custodial Trial of an accused means keeping the accused in the judicial custody till conclusion of the trial.

Order granting Custodial Trial and Court's power to review its order:

Neither the scheme of the Criminal Procedure Code nor the Bharatiya Nagarik Suraksha Sanhita, 2023 provides any scope for a criminal Court to review its own order except to correct an arithmetical or clerical error. Section 362 of CrPC corresponding to Section 403 of BNSS though specifically restrains a Court from reviewing its own judgment and final order disposing a case, but at the same time judgments of various High Courts and Supreme Court settled the position that a criminal Court cannot review its own order except 'Procedural review'.

In this respect in a case between Ganesh Patel vs. Umakant Rajoria^[3] it was held when it comes to procedural review, the rigour of Section 362 of CrPC will not be attracted.

Referring the said judgment and also the judgment laid down in the case between Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others^[4], in another case between Vikram Bakshi v R.P. Khosla^[5] Honble Apex Court viewed, “This Court, however, in exceptional cases, has carved out limited scope for exercise of review power by criminal courts. In Grindlays Bank Ltd. (supra),it was observed that review can be distinguished between “procedural review” and “substantive review”. A “procedural review” is inherent or implied in a court to set aside a palpably erroneous order passed under misapprehension by it, however, a “substantive review” is when error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense, this Court, held that no review lies on merits unless specifically provided under a statute”.

So, when a matter has been decided on merit by a criminal Court, it has no authority to review the same on its merit.

On the said aspect In Adalat Prasad vs Rooplal Jindal & Ors^[6] it was held, “Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.”

Thus, Adalat Prasad case also clarifies that a criminal Court has no authority to recall its own order even if subsequently same is found to be an erroneous one.

From the above authorities and statutory provision, it is clear that once an order passed by a criminal Court granting the petition of holding Custodial trial of an accused, said Court becomes Functus Officio. In other words, once a Court decided that the accused shall be kept in custody till conclusion of trial, its power to grant bail to that accused at a subsequent stage shall be ceased.

Custodial Trial and statutory right to get bail:

Section 437(6) CrPC corresponding to Section 480(6) BNSS enumerates If in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail, to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

So, the question arises if a Court of any Judicial Magistrate grants a petition of the investigating officer to conclude the trial keeping the accused in custody and after granting of the same trial could not be completed within 60 days, whether, in that case, said Court shall have power to release the accused on bail under Section 437(6) of CrPC?

Said question has been answered by High Court of Tripura in a case between The State Of Tripura vs Sri Saikat Talapatra^[7] with following words, where after granting a petition of holding custodial trial bail was granted to the said accused under Section 437(6) of CrPC:

“From the aforesaid observation of the Learned Trial Court, it appears that considering the materials on record the Learned Trial Court initially allowed the prayer of the prosecution on the ground of possibility of hampering and tampering of evidence, chance of absconsion and also on the ground of having some other cases against him with further expectation that the prosecution can take step to control the trial but as no effective step was taken by the prosecution, so, bail was granted, which in my considered opinion was not proper on the part of the Learned Trial Court. Because once the Trial Court passes an order for holding custody trial and that order still stands good and until and unless that order remain unchallenged or without recording evidence of material witnesses, in my considered view it was not proper on the part of the Learned Trial Court to grant bail to the accused, since in view of Section 362 of Cr.P.C., there is no scope to review or modify its own order and thus, clearly bars the Learned trial Court to review its earlier order by the subsequent order passed.”

So, from the above decision it is clear that once a prayer to hold custodial trial is granted, said Court shall have no authority or jurisdiction to grant bail to the accused.

Similarly, Section 479 of BNSS corresponding to Section 436A of CrPC with some changes provides that an accused can be detained in custody for not more than one-half of the maximum period of imprisonment specified for the offence charged and if the accused is a first time offender he must be released on bond if he already undergone one-third of the maximum period of imprisonment specified for the offence charged. However, reasons to be recorded period of detention can be extended by the Court, but in no case such detention period shall exceed the period of imprisonment specified for the offence charged.

Now, if any of the situations mentioned in the aforesaid provision accrues after granting of a prayer of Custodial Trial of an accused, said Court shall become functus officio in granting bail or releasing the said accused on bond which may cause prejudice to the accused in spite of accrual of a statutory right to get bail.

In conclusion it can be said that the concept of “Custodial Trial” is neither a statutory evolution nor a mandatory compulsion, but a product of long practice. But where there is no fixed period of completion of trial of a criminal case having so many statutory restrictions as discussed above, how far it is justified to consider a prayer of the prosecution to allow holding of Custodial Trial of an accused?

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1. AIR 2014 Supreme Court 1400. ↑

2. 2022 LiveLaw (SC) 1009 ↑

3. S.L.P. (CRL.) NO. 9313 OF 2021↑

4. 1980 INSC 233. ↑

5. 2025 LiveLaw (SC) 844↑

6. AIR 2004 Supreme Court 4674. ↑

7. Decided on on 14 November, 2025 in BA NO.30 of 2025. ↑