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...

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

Ananya Tangri

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