To put it differently, if the trial of a person accused of an
offence which is triable by a Sessions Court is not concluded
within any specified time frame, such a person cannot seek for
bail. In other words, in respect of the trial of persons accused of
committing offences triable by a Sessions court, the length of
the trial would have no bearing at all. Even if the trial is not
concluded for a reasonably long period of time, the accused
cannot seek for the grant of bail in the same manner as an
accused who is facing a trial of offences which are triable only
by the Magistrate. This clear distinction made by the statute in
respect of offences triable by the Sessions and by the Magistrate
would only indicate that no accused can have a right to demand
that he be released on bail because there is a delay in the
conduct of his trial. If read in this context, the Proviso under
Section 346(2) would lose all its relevance and no accused, who
is accused of committing an offence which is exclusive trial by
Sessions Court, can demand that he be remanded only to a
period below 15 days. {Para 127}
128. We may hasten to add that this does not mean that the
Sessions Court has the discretion to conduct the trial a leisurely
pace. The general provision relating to inquiries and trials which
mandate trial to be conducted on a day-to-day basis will have to
be adhered to and reasons will have to be assigned, if the matter
is being adjourned beyond the following day. This rigor would
always remain, but at the same time, the non-adherence to this
requirement of conducting a trial on a day-to-day basis would
not transform into a right for the accused to contend that his
detention or remand to custody is illegal and that he should be
released on bail forthwith.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 15962 of 2025
VINODBHAI TILAKDHARI TIWARI Vs STATE OF GUJARAT & ORS.
CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and HONOURABLE MR.JUSTICE D. M. VYAS
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
Citation: 2026:GUJHC:2986-DB
I. Facts of the case 3-8
II. Submissions on behalf of petitioners 8-12
III. Submissions on behalf of State 12-15
IV. Questions that arise for consideration 15
V. POINT 1: Maintainability of a Habeas
Corpus writ 15-22
A. An overview of the BNSS in the context
for arrest and custody of law 22
(i)
At the time of arrest 23-25
(ii)
After the arrest 26-29
(iii)
Concept of “Custody of law” 29-30
a. Custody of law during investigation 30-39
b. Custody of law after investigation is
complete
VI. Concept of “Bail” 44-45
VII.
Framing of charge and trial by the
Sessions Court 45-48
VIII.
An overview of Chapter XXVI of the
BNSS 48-57
IX. ENTITLEMENT TO BE RELEASED ON BAIL
AFTER THE COMMENCEMENT OF TRIAL
58-63
1. The father of Vipul Tiwari and Pratik Tiwari has presented this
petition seeking for issuance of a writ of habeas corpus
contending that his sons have been under illegal detention and
are therefore required to be set at liberty forthwith.
I. FACTS OF THE CASE
2. Vipul Tiwari was arraigned as accused No.1 and Pratik Tiwari
was arraigned as accused No. 2 in a crime which was registered
on 23.09.2024 against them for offences under sections 189,
189(2), 115(2), 296(B), 103(2), 76 and 61(2) of the BNS and
Section 135(1) of the G.P. Act. There was also another accused
(A-3) namely Brijeshkumar S/o Ravindrakumar Shrikrishna
Tiwari.
3. On 26.09.2024 Vipul Tiwari was arrested, and he filed an
application seeking for bail on 07.10.2025 before the Sessions
Court. However, by an order dated 06.11.2025 this bail
application was rejected and as against the rejection of the bail
application, Vipul Tiwari has filed Cr.M.A No. 24597 of 2025
before this Court and the same is stated to be pending
consideration.
4. Pratik Tiwari, the second accused, was filed an application
seeking for anticipatory bail on 04.10.2024, but the Sessions
Court rejected the same on 18.10.2024. He, thereafter,
approached this Court in Cr.M.A No. 21543 of 2024, but this
application was also withdrawn by the applicant, on
28.10.2024. He was thereafter arrested on 09.12.2024.
5. Pratik Tiwari, thereafter, filed a bail application before the
Sessions Court on 13.01.2025. However, the Sessions Court
rejected this regular bail application on 07.02.2025 and he
thereafter approached this Court in Cr.M.A No. 3581 of 2025
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but this Court also rejected this regular bail application on
26.03.2025.
6. As against the rejection of his bail applications by this Court,
Pratik Tiwari approached the Hon’ble Supreme Court in SLP
Criminal No. 7637 of 2025, but the Hon’ble Apex Court rejected
this application. Thus, the request of Pratik Tiwari to be
enlarged on bail was rejected by the District Court and was
thereafter affirmed by this Court and by the Hon’ble Apex Court.
7. Pratik Tiwari filed a second bail application before the Sessions
Court on 17.09.2025, but the same was also rejected on
01.10.2025. He thereafter approached this Court in Cr.M.A No.
21425/2025 seeking for a bail for the second time and this was
also rejected by this Court on 13.11.2025.
8. Thus, it is clear from the above set of facts that both Vipul
Tiwari and Pratik Tiwari were arrested in connection with
committing a crime and their request for being enlarged on bail
has been refused and they are therefore in the custody of the
law.
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9. During the pendency of the above-mentioned proceedings
relating to grant of bail, the police on completion of their
investigation have laid a charge-sheet on 17.12.2024.
10. As the offences alleged against the accused were
exclusively triable by the Sessions Court, the Magistrate, on
01.01.2025, committed the case to the Sessions Court. The
Sessions Court, thereafter, registered the case as Sessions case
No. 126/2025 on 13.01.2025.
11. The Sessions Case, thereafter, framed a Charge against
the accused on 18.06.2025 and the framing of charges was
challenged by Vipul Tiwari before this Court in Cr.M.A.
12883/2025. This Court, by an order dated 07.07.2025 set
aside the said order framing charges and directed charges to be
framed after hearing the matter afresh.
12. This order framing charge was challenged before this
Court in Cr.M.A No. 17958/2025 but the said application was
withdrawn with liberty to file a fresh application. Pursuant to
the liberty granted by this Court, Vipul Tiwari filed another
application in Cr.M.A No. 18503/2025 but the same was
withdrawn. The Sessions Court, thereafter, on 29.07.2025
framed charges against the accused.
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13. It may be pertinent to state here that applications were
made for compliance of Section 230 of the BNSS i.e., for supply
of documents in the month of March, 2025 and the same was
allowed in the month of June, 2025. However, in the month of
July, 2025, applications were also made by Vipul Tiwari For
transfer of the case under Section 448 of the BNSS, but the
same was rejected on 23.07.2025. As against the said order a
Special Criminal Application No. 11138 of 2025 was also filed
before this Court for transfer of the presiding officer in Sessions
Case No. 126 /2025 and the same pending for its adjudication.
14. It is also forthcoming from the pleadings that on
28.07.2025, the accused made an application seeking recusal of
the presiding officer, but the same was rejected on 29.07.2025.
On 30.07.2025, an application is also being preferred before the
unit judge alleging grievances and apprehensions against the
presiding officer. It is, therefore, clear that the accused did seek
for transfer of their case and on their failure to obtain orders,
they also sought for transfer of the presiding officer.
15. On 12.01.2025, the Sessions Court commenced the Trial
and PW-1 (the original first informant) was examined in chief
and the Sessions Court thereafter proceeded to adjourn the
matter to 01.12.2025 i.e., beyond the period of 15 days.
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16. The father of petitioners, Vipul Tiwari and Pratik Tiwari,
has at this stage presented these petitions seeking for issuance
of a writ of habeas corpus on the ground that they have been
illegally detained on the premise that the Sessions Court could
not have remanded them to custody beyond 15 days and are
hence entitled to be released from the illegal detention.
II. SUBMISSION ON BEHALF OF THE PETITIONERS:
17. Shri Bhargav Bhatt learned Counsel appearing for the
petitioners basically contended that the order remanding the
petitioners to custody beyond a period of 15 days was a flagrant
violation of the First Proviso to Section 346 of the Bharatiya
Nagarik Suraksha Sanhita (for short ‘BNSS’), 2023 and
therefore, they had a right to invoke the habeas corpus
jurisdiction of this Court and they are required to be set at
liberty forthwith.
18. Learned Counsel elaborated on his submissions to the
effect that whenever the custody of any person is illegal or
contrary to a statutory provision, the same would be an illegal
confinement entitling the detenue to seek for liberty by filing a
petition under Article 226 of the Constitution of India. He
contended that the order of remand which gave the custody a
color of legality need not be challenged since it was a non est
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order and this Court could direct such illegal detention to cease
and the detenues be set at liberty. He relied upon a series of
judgments to emphasize his proposition of law. The same are
narrated in a tabular column for the sake of convenience.
Citation Proposition of Law relied upon
(1953) 1 SCC
389:
Ram Narayan
Singh v. State
of Delhi and
Ors. :
To contend that if an order of remand was
not passed, the detention of a person could
be illegal and a writ of habeas corpus
could be issued.
(2022) 13 SCC
542:
Gautam
Navlakha v.
National
Investigation
Agency :
To contend that if a remand was absolutely
illegal or that the remand was afflicted
with the vice of lack of jurisdiction, an
habeas corpus petition would be
maintainable and so also, if an order of
remand is passed in an absolutely
mechanical manner.
(2024) 3 SCC
51:
V. Senthil
Balaji v. State
represented by
Deputy
Director and
Ors.:
To contend that a writ of habeas corpus
petition is maintainable when there is noncompliance
of the mandatory provisions
along with a total non-application of mind
while passing an order of remand and a
habeas corpus petition would not be
maintained only if the reasoning for
remanding the person was being
challenged.
1971 SCC
Online Pat 155:
(Patna High
To contend that the Magistrate could not
remand an accused person to custody for a
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Court):
Babu Nandan
Mallah v. The
State:
term exceeding 15 days at a time.
1974 SCC
Online Ker 26:
(Kerala High
Court):
K. P. Vasu and
Ors. v. The
State
To elaborate on submissions that a bail
order is not a final order and the mere
rejection of a bail application would not be
of any consequence since bail can be
granted at any time or be rescinded or
modified.
(1974) 02 CAL
CK 0019:
Champalal v.
State of West
Bengal:
To contend that an order of bail is neither
prospective nor retrospective, neither
anticipated nor suspended and takes effect
immediately from the time it is granted.
Writ Petition
No. 54/2025:
Hanumant
Jagganath
Nazirkar v. The
State of
Maharashtra
(High Court of
Judicature at
Bombay
Criminal
Appellate
Jurisdiction) :
To contend that if the arrest was illegal, a
habeas corpus petition could be
maintained even if the bail application had
already been rejected and an order remand
had been passed.
(2001) 4 SCC
667:
State of U.P. v.
Shambhu Nath
Singh & Ors.:
To contend that a trial could not be
adjourned when all the witnesses are
present and to emphasize the fact that a
trial should be conducted on a day-to-day
basis and any order of remand made after
the trial was commenced should not
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exceed 15 days.
Criminal Misc.
Case No.
797/1982:
(High Court of
Allahabad)
Janki v. Stae of
U.P.:
To contend that Section 309(2) could apply
to cases even when enquiry or trial was
pending.
2011 (0) AIJELSC
50737:
State of Punjab
v. Devinder Pal
Singh Bhullar:
To contend that if the initial action was not
in consonance with law, all subsequent
and consequential proceedings would also
fall through and consequently since the
initial order of remand in the present case
was illegal, all subsequent orders of
remand would also be illegal.
1989 (0) AIJEL
– HC 212791:
(High Court of
Gujarat)
Suresh
Ramtirth Yadav
v. State of
Gujarat:
To contend that under the Code of
Criminal Procedure, 1973, Section 309(2)
was applicable only to a Magistrate and
not to a Session Judge but by the use of
the term Court in BNSS, 2023, it is made
applicable to all courts including the
Sessions Court and consequently even the
Sessions Court is bound by the mandate of
first provision of Section 346(2).
Writ Petition
(CRL.)
No.491/2022:
Bilkis Yakub
Rasool v. Union
of India & Ors.:
To contend that fraud would unravel
everything and the action of the
prosecution in securing an order of
remand after the filing of this writ petition
amounted to fraud.
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19. The sum and substance of the argument of Shri Bhatt is
that when the order remanding a person to custody is illegal
and contrary to an express provision, this Court is obliged to
undo the wrong and set the person who has been illegally
confined to liberty. He specifically contended that though the
order of a Court could lawfully detain a person, the moment
that the said order violated a statutory bar, in so far as it
related to a timeline for custody, the same would become an
illegal detention, entitling the detainee to be released.
III. SUBMISSIONS ON BEHALF OF THE STATE:
20. Learned PP, on the other hand, submitted that a writ of
habeas corpus cannot be entertained when the accused had
been remanded to custody under judicial orders. He submitted
that so long as the custody of an accused was pursuant to a
judicial order, it can never be argued that the custody was
illegal.
21. Learned PP also submitted that though the petitioners
had been remanded to custody by an order dated 12.11.2025 to
01.12.2025, which was no doubt beyond 15 days, but, on
01.12.2025 the custody of the accused was extended by a
further period of 15 days and thus, their custody as on the date
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of return of the notice of this petition, was lawful and the
petition could not therefore be maintainable. He submitted that
the detention as on the date of the return of the notice was
relevant and not as on the date of presentation of the writ
petition.
22. Learned PP also contended that once it was admitted that
the remand of the petitioners was under a judicial order, a writ
of habeas corpus was not maintainable.
23. He also relied upon the following citations to emphasize
his contentions and proposition of law.
Citation Proposition of Law relied upon
(2001) 4 SCC 667:
State of U.P. v.
Shambhu Nath
Singh & Ors:
(Also relied upon by
the learned Counsel
for the Petitioners)
To contend that a trial by Sessions
Court would have to be conducted on a
day-to-day basis and cannot be
adjourned for the mere asking.
(2014) 13 SCC 436:
Saurabh Kumar
through his Father
v. Jailor, Koneila
Jail and Anr.:
(2018) 9 SCC 745:
State of
To contend that if there is an order of
remand, a writ of habeas corpus cannot
be maintained and the order of remand
cannot be subjected to a scrutiny in a
petition under article 226 of the
Constitution of India.
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Maharashtra & Ors.
v. Tasneem Rizwan
Siddiquee:
(2019) 5 SCC 266:
Serious Fraud
Investigation Office
v. Rahul Modi &
Anr.:
1989 (0) AIJEL –
HC 212791:
Suresh Ramtirth
Yadav v. State of
Gujarat
(High Court of
Gujarat)
(Also relied by the
learned Counsel for
the Petitioners)
To contend that merely because no
reasons are given for remand, the
continued imprisonment of the accused
was illegal.
1983 SCC Online
All 895:
Surjeet Singh v.
State of U.P.:
To contend that the custody referred to
Section 309(2) would be considered
both legal as well as illegal custody.
1971 SCC Online
Pat 155:
Babu Nandan
Mallah v. The State:
(Patna High Court):
To contend that to determination the
lawful custody would be dependent on
the custody as existed on the date of
return of the rule nisi and not the date
on which the order to remand was
passed.
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24. In reply, Learned Counsel Shri Bhatt contended that if the
original order detaining the accused was non est, a subsequent
extension cannot cure this fatal defect and the custody would
always remain unlawful. In other words, he submitted that if
the original order of detention dated 12.11.2025 was non est, all
subsequent orders would stand automatically nullified since the
subsequent orders are on the basis of the non est order dated
12.11.2025.
IV. QUESTIONS THAT ARISE FOR CONSIDERATION:
25. Whether a petition seeking for issuance of a writ of habeas
corpus would be maintainable if the custody of the detenue was
pursuant to a judicial order of remand?
26. Whether the custody of an accused during trial be rendered
invalid or illegal because it was contrary to the timeline set in the
Proviso to Section 346(2)?
V. REGARDING THE MAINTAINABILITY OF WRIT PETITIONS
SEEKING FOR ISSUANCE OF A WRIT OF HABEAS CORPUS:
27. Article 22 of Part III of the Constitution of India reads
as under:
22. Protection against arrest and detention in certain cases-
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(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a
period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court
of the magistrate and no such person shall be detained in
custody beyond the said period without the authority of a
magistrate.
3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien;
or
(b) to any person who is arrested or detained under any
law providing for preventive detention.
(4) No law providing for preventive detention shall authorise
the detention of a person for a longer period than three
months unless—
(a) an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as, Judges of a
High Court has reported before the expiration of the said
period of three months that there is in its opinion sufficient
cause for such detention:
Provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period
prescribed by any law made by Parliament under subclause
(b) of clause (7); or
(b) such person is detained in accordance with the
provisions of any law made by Parliament under subclauses
(a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order
made under any law providing for preventive detention, the
authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order
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has been made and shall afford him the earliest opportunity
of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making
any such order as is referred to in that clause to disclose facts
which such authority considers to be against the public
interest to disclose.
(7) Parliament may by law prescribe—
(a) the circumstances under which, and the class or classes
of cases in which, a person may be detained for a period
longer than three months under any law providing for
preventive detention without obtaining the opinion of an
Advisory Board in accordance with the provisions of subclause
(a) of clause (4);
(b) the maximum period for which any person may in any
class or classes of cases be detained under any law
providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an
inquiry under [[sub-clause (a) of clause (4)].
28. As could be seen from the above, Article - 22 guarantees a
protection to every person against an arrest and against
detention unless the procedure stipulated therein is followed.
29. The Article does not bar the detention of any person but
categorically states that on a person being arrested, he is
required to be immediately informed of the grounds for which he
is arrested, and he shall also not be denied the right to consult
and be defended by a legal practitioner of his choice. Thus,
immediately on the arrest of a person, the police are required to
be informed of the reason for which he is being arrested and he
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shall also have the right to consult a legal practitioner, which
will have to be acceded to by the Police. Thus, there is a
constitutional requirement for the Police to follow two
procedural safeguards meant to protect a person at the time of
his arrest.
30. Article 22 (2) also provides for a safeguard regarding the
extent of detention after the event of arrest. It declares that
every person who is arrested and detained in custody should be
produced before the nearest Magistrate within a period of 24
hours of such arrest. It also states that no such person can be
detained beyond a period of 24 hours without the authority of a
Magistrate. It also clarifies that the time taken for journey from
the place of arrest to the Magistrate would have to be excluded.
31. Thus, firstly there is a fundamental right guaranteed to
every person, that he is to be informed of the grounds of arrest
the moment that he is arrested and that he should not be
denied the right to consult a legal practitioner of his choice.
32. Secondly, and more importantly, the fundamental right
makes it clear that the detention of a person arrested by the
police can only be for a period of 24 hours and the person
arresting him would have to necessarily produce the arrested
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person before a Magistrate and only if the Magistrate authorizes
the extension of the detention, the detention be valid. In other
words, the Police can detain the person arrested beyond 24
hours only if he has been produced before the Magistrate and
the Magistrate has authorised his further detention i.e., beyond
the period of 24 hours from the time of the arrest.
33. Article - 22 (3), however, provides an exception to the
protection granted under Article - 22 (1) and (2) and makes it
clear that the protection would not be available to an enemy
alien or to a person who is detained under any preventive
detention law. To put it in another way, every person in the
country is guaranteed protection as aforesaid under Article - 22
in the event of his arrest except an enemy alien or a person who
had been detained under any preventive detention law.
34. Article 22 would fundamentally indicate that the right of a
person to be free is one of the most important freedoms
contemplated under Part – III. This article stipulates that even if
a person were to be detained, stringent safeguards are to be
followed not only at the time he was detained but immediately
thereafter during his period of detention, which is also explicitly
stipulated. This armor of protection being a constitutional
safeguard, it would obviously override and prevail over every
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other statute, except, of course, as provided under the
subsequent sub clauses of Article 22, which relate to preventive
detention.
35. As any infringement of the safeguards provided under
Article - 22 would clearly be a violation of a fundamental right,
the aggrieved person would have the constitutional remedy to
approach the Supreme Court under Art 32 and the High Court
under Article - 226. Thus, the right of a person who has been
arrested or detained in contravention of Article - 22 can
definitely maintain a writ petition either under Art 32 or Article -
226 of the Constitution.
36. In fact, this proposition of law has been explicitly stated
by the Apex Court in a recent decision, after noticing and
considering a long line of decisions in respect of illegal detention
even under judicial orders, in the following terms:
80. Thus, we would hold as follows: If the remand is
absolutely illegal or the remand is afflicted with the vice of
lack of jurisdiction, a Habeas Corpus petition would indeed
lie. Equally, if an order of remand is 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.
37. In fact the same proposition is also reiterated and it is
also clarified as to when a writ for issuance of a habeas corpus
would not lie in the case of V. Senthil Balaji v. State represented
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by Deputy Director & Ors. reported in (2024) 3 SCC 51 where it
is held as follows:
28. A writ of Habeas Corpus shall only be issued when the
detention is illegal. As a matter of rule, an order of remand by
a judicial officer, culminating into a judicial function cannot be
challenged by way of a writ of Habeas Corpus, while it is
open to the person aggrieved to seek other statutory remedies.
When there is a non-compliance of the mandatory provisions
along with a total non-application of mind, there may be a
case for entertaining a writ of Habeas Corpus and that too by
way of a challenge.
29. In a case where the mandate of Section 167 of the CrPC,
1973 and Section 19 of the PMLA, 2002 are totally ignored by
a cryptic order, a writ of Habeas Corpus may be entertained,
provided a challenge is specifically made. However, an order
passed by a Magistrate giving reasons for a remand can only
be tested in the manner provided under the statute and not by
invoking Article 226 of the Constitution of India, 1950. There
is a difference between a detention becoming illegal for not
following the statutory mandate and wrong or inadequate
reasons provided in a judicial order. While in the former case
a writ of Habeas Corpus may be entertained, in the latter the
only remedy available is to seek a relief statutorily given. In
other words, a challenge to an order of remand on merit has
to be made in tune with the statute, while noncompliance of a
provision may entitle a party to invoke the extraordinary
jurisdiction. In an arrest under Section 19 of the PMLA, 2002
a writ would lie only when a person is not produced before
the Court as mandated under subsection (3), since it becomes
a judicial custody thereafter and the concerned Court would
be in a better position to consider due compliance.
38. The Learned PP however sought to rely upon the
judgment rendered in the case of Saurabh Kumar through his
Father v. Jailor, Koneila Jail and Anr. reported in (2014) 13 SCC
436 and in the case of State of Maharashtra & Ors. v. Tasneem
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Rizwan Siddiquee, reported in (2018) 9 SCC 745 to contend that
once an order of remand had been passed and the custody of
the person was relatable to the order of remand, a writ seeking
for habeas corpus would not lie. It is to be stated here that the
Apex Court has basically stated that an order of remand cannot
be questioned by filing a writ of habeas corpus and it has not
laid down the proposition that a writ petition seeking for habeas
corpus would not be maintainable. As already observed if it is to
be urged that the detention is in violation of a constitutional
safeguard or of a specific statutory mandate, a writ of habeas
corpus would be maintainable since it would basically be a
complaint about the infringement of a constitutional safeguard
or a statutory mandate.
39. In the light of the above discussion, it is manifestly clear
that a writ petition seeking to invoke the habeas corpus
jurisdiction to question the detention made pursuant to a
judicial order will be maintainable and the arguments of the
Learned PP cannot be sustained. The 1st question is accordingly
answered.
A. AN OVERVIEW OF THE BNSS ACT IN THE CONTEXT OF
ARREST & CUSTODY IN LAW [BOTH DURING
INVESTIGATION AND TRIAL]
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(i) AT THE TIME OF ARREST
40. BNSS 2023 is a statute enacted for the purposes of
defining the procedure which is to be adopted by the
investigating authority for investigation of any offence and the
procedure to be adopted by the criminal courts over the
investigating authorities both during the course of investigation
and also while trying a person who is accused of the
commission of offences.
41. BNSS consists of 39 chapters and is divided into 531
sections.
42. The provisions of the BNSS Act, abide by the
constitutional safeguards provided to a person while being
arrested. Chapter - V of the Act is an indication of this aspect.
Section 35 of the Act empowers a police officer to arrest a
person without a warrant if the 10 situations mentioned therein
are found to exist.
43. Section 35(2) also makes it clear that if a person is
accused of committing a non-cognizable offence, the police
officer cannot arrest the person without a warrant.
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44. Section 35(3) also makes it clear that if the situations
contemplated under 35(1)(a) to (j) do not exist, he would have to
only issue a notice directing upon that person to appear.
45. Section 35(7) also makes it clear that an arrest is
permissible if the offence is punishable with less than 3 years
only if the police officer has secured the permission of the
Deputy Superintendent. These provisions would thus indicate
stringent statutory safeguards are provided under the BNSS to
ensure a person arrested on the suspicion of committing an
offence is treated fairly, while at the same time, enabling the
police to investigate a crime.
46. Section 36 describes the procedure for arresting a person
and narrates the details, the duties that the officer are required
to comply with, while making the arrest. Firstly, the Police
officer is required to be identifiable to the arrested person.
Secondly, a memorandum of arrest would have to be prepared,
which is required to be attested by at least one witness who is a
member of the family of the arrested person or a respected
member of the locality. This memorandum should state that an
arrest is being made, and this memorandum should also be
required to be countersigned by the arrested person.
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47. Section 36(c) casts an obligation on the police officer to
inform the arrested person that he has a right to have a relative
or a friend or any other person named by him to be informed of
his arrest (if the memorandum of arrest has not been attested
by a member of his family).
48. These provisions would indicate that a police officer who
is arresting a person who is suspected of committing an offence
complies with certain requirements, which are essentially
adherence to the constitutional safeguard provided under
Article 22 of being informed about the grounds of arrest and in
furtherance of his right to engage a counsel of his choice.
49. It must be stated here that the Magistrate under Section
41 is also conferred with the power to arrest and commit the
offender to custody if the offence has been committed in his
presence.
50. The actual way an arrest is to be effected is also
enumerated in Section 43 of the BNSS and it permits a police
officer to get in physical contact with the person and also
permits him to use all such necessary force if the person resists
arrest.
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(ii) AFTER THE ARREST
51. Section 47 of the Act mandates that every police officer
arresting any person without warrant should forthwith
communicate to him the full particulars of the offence for which
he is being arrested and the other grounds for such arrest. If
the police officer is arresting a person for an offence, which is
bailable, he is also obliged to inform the arrested person that he
is entitled to be released on bail and that he may arrange for
sureties in his behalf.
52. Section 48 (1) of the Act goes one step beyond the
Constitutional safeguard provided under Article 22 (about the
arrested person being informed of the arrest and its grounds)
and stipulates that the police officer making the arrest is
forthwith required to give information regarding the arrest to
any of the relatives or friends or such other persons whom the
arrested person discloses or nominates for the purpose of giving
information. The designated police officer of the district is also
required to be informed of the arrest and the place where the
arrested person is being held. Thus, the statutory provision
creates an additional obligation on the police over and beyond
the Constitutional safeguard of just the arrested person being
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informed about the grounds of arrest and his right to be
defended by a legal practitioner.
53. S. 48 (2) obligates the police officer to inform the arrested
person of his rights conferred under S. 48 (1) i.e., the factum of
the arrest and the place where the arrested person is held, to
the relatives or friends of the arrested person.
54. Section 48(3) mandates that an entry of the factum of
arrest having been informed to the friends or relatives of the
arrested person is to be made in a separate book prescribed by
the government.
55. S. 57 of the BNSS mandates that the police officer making
an arrest without warrant should without unnecessary delay
ensure that the arrested person is produced before a Magistrate
having jurisdiction in the case or before the officer in charge of
the police station.
56. S. 58 of the BNSS declares that a person arrested shall
not be detained for more than 24 hours unless there is a special
order of the Magistrate.
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57. It is thus clear that exhaustive provisions are provided in
Ch V which are designed to prevent the abuse of the power of
arrest and the detention of an arrested person by the Police. The
logic behind these provisions is clear and that is to provide a
person, who has been arrested, to seek for release on bail and in
the event of the offence being non-bailable to enable him to
secure legal help through his friends and relatives to seek for
his release. The legislature was conscious of the fact that an
arrested person can effectively be kept in custody by denying
him the right to have access to legal aid for securing bail and
hence elaborate measures are also provided to ensure that the
friends or relatives of the arrested person are informed of the
arrest.
58. It is rather plain and obvious that this entire set of
provisions in Ch V are meant to ensure compliance of the
safeguards provided under Article 22 of the Constitution and to
ensure that the person arrested and detained is afforded every
opportunity to secure his release in the manner known to law.
The explanation of the above provisions relating to the arrest of
a person and his detention immediately thereafter has become
necessary, for this case, to emphasize the degree of seriousness
that is ascribed by the law when it comes to the liberty of a
person being curtailed.
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59. The concept of arresting a person is basically to
investigate the offence that he has committed by subjecting him
to interrogation and to ensure that he does not get a chance to
tamper with the evidence or to intimidate the witnesses who
may have witnessed his crime or to flee from the jurisdiction of
the court. Ultimately, it is to ensure that there is a smooth
investigation conducted by the Police without there being any
impediment.
60. Since the detention of a person infringes on his
constitutional right to be at liberty, the statute has provided an
elaborate mechanism to ensure that this detention is monitored
at every stage and every attempt is made to ensure that the
detention of a person is always within well-defined parameters.
(iii) CONCEPT OF CUSTODY OF LAW
61. As already explained above, Article - 22 grants a certain
degree of protection when a person is arrested and is being
detained. The moment the safeguards provided under Article -
22 and the provisions of Ch V of the BNSS are adhered to, the
person arrested is legally deprived of his right to be free and his
liberty stands curtailed. This arrest and detention of a person,
thereby depriving him of the right to be free is what is known as
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the “custody of law”. It simply means that the normal right of a
person to be free is lost when he has been arrested and he has
been taken into the custody of the police or by investigating
authorities.
a. ‘CUSTODY OF LAW’ DURING INVESTIGATION
62. Ch XIII of the BNSS contains the provisions relating to the
information to the Police and their powers to investigate. As a
first step, the Police officer, under S. 173, is required to reduce
the information in writing, if given to him orally and is required
to read it over to the informant and obtain his signature. If the
information is given by electronic communication, it is required
to be taken on record and he is also required to get the
signature of the person giving it. The Police officer, thereafter, in
both cases referred to above, is required to enter the substance
of the information in a book which is required to be kept by him
in the form prescribed. The copy of the information so recorded
is required to be given to the informant forthwith and free of
cost. This procedure is commonly referred to registration of a
FIR. A separate procedure is prescribed for offences against
women.
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63. In respect of cognizable offences which are made
punishable for three years and not exceeding seven years, on
receipt of information, instead of registering a FIR, the Police
Officer with the approval of Deputy Superintendent of Police is
permitted to conduct a preliminary enquiry within 14 days to
ascertain whether there exists a prima facie for proceeding
further and if there exists a prima facie case, he can proceed
with the investigation.
64. If the officer in charge of a police station refuses to record
the information given to him, the informant is given the right to
send substance of the information by post to the
Superintendent of Police and he can thereafter either himself
investigate the case or direct his subordinate to investigate the
case. If the SP fails to act on the information provided to him by
post, the informant under S. 173 (4) is permitted to move an
application to the Magistrate.
65. S. 174 deals with the information that is provided to the
Police of non-cognizable cases and their power to investigate the
same. This provision stipulates that the Police officer is required
to record the information in a book prescribed by the
Government for such non-cognizable cases and he is required to
refer the informant to the Magistrate. S. 174 (2) bars a Police
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officer to investigate a non-cognizable case unless there is a
specific order by the Magistrate permitting investigation.
66. S. 175 deals with the power of the Police Officer to
investigate a cognizable case without securing the permission of
the Magistrate. S. 175 (3) empowers a Magistrate to order
investigation in cases where an application is made by the
informant after the SP has failed to order an investigation after
the information was sent to him by post.
67. S. 176 deals with the procedure for investigation by a
Police officer and it mandates that the Officer in charge of a
police station, on receipt of information about the commission of
a cognizable offence, to send a report to the nearest Magistrate
and thereafter proceed either in person or send his subordinates
to the spot to investigate the facts and circumstances of the
case. The police officer is also empowered to take steps for the
discovery and the arrest of the offender.
68. S. 187 of the BNSS stipulates the procedure to be followed
when investigation cannot be completed within 24 hours. The
said provisions reads as follows:
Section 187. Procedure when investigation cannot be
completed in twenty-four hours.
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(1) Whenever any person is arrested and detained in custody,
and it appears that the investigation cannot be completed
within the period of twenty-four hours fixed by section 58,
and there are grounds for believing that the accusation or
information is well-founded, the officer in charge of the police
station or the police officer making the investigation, if he is
not below the rank of sub-inspector, shall forthwith transmit
to the nearest Magistrate a copy of the entries in the diary
hereinafter specified relating to the case, and shall at the
same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded
under this section may, irrespective of whether he has or has
no jurisdiction to try the case, after taking into consideration
whether such person has not been released on bail or his bail
has been cancelled, authorise, from time to time, the detention
of the accused in such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days in the whole, or in parts,
at any time during the initial forty days or sixty days out of
detention period of sixty days or ninety days, as the case
may be, as provided in sub-section (3), and if he has no
jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to
be forwarded to a Magistrate having such jurisdiction.
(3) The Magistrate may authorise the detention of the accused
person, beyond the period of fifteen days, if he is satisfied
that adequate grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused person in custody
under this sub-section for a total period exceeding—
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or
imprisonment for a term of ten years or more;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days,
or sixty days, as the case may be, the accused person shall
be released on bail if he is prepared to and does furnish
bail, and every person released on bail under this subsection
shall be deemed to be so released under the
provisions of Chapter XXXV for the purposes of that
Chapter.
(4) No Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
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produced before him in person for the first time and
subsequently every time till the accused remains in the
custody of the police, but the Magistrate may extend further
detention in judicial custody on production of the accused
either in person or through the audio-video electronic means.
(5) No Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall authorise
detention in the custody of the police.
Explanation I.—For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period
specified in sub-section (3), the accused shall be detained in
custody so long as he does not furnish bail.
Explanation II.—If any question arises whether an accused
person was produced before the Magistrate as required
under sub-section (4), the production of the accused person
may be proved by his signature on the order authorising
detention or by the order certified by the Magistrate as to
production of the accused person through the audio-video
electronic means, as the case may be:
Provided that in case of a woman under eighteen years of
age, the detention shall be authorised to be in the custody
of a remand home or recognised social institution:
Provided further that no person shall be detained otherwise
than in police station under police custody or in prison
under judicial custody or a place declared as prison by the
Central Government or the State Government.
(6) Notwithstanding anything contained in sub-section (1) to
sub-section (5), the officer in charge of the police station or the
police officer making the investigation, if he is not below the
rank of a sub-inspector, may, where a Magistrate is not
available, transmit to the nearest Executive Magistrate, on
whom the powers of a Magistrate have been conferred, a copy
of the entry in the diary hereinafter specified relating to the
case, and shall, at the same time, forward the accused to
such Executive Magistrate, and thereupon such Executive
Magistrate, may, for reasons to be recorded in writing,
authorise the detention of the accused person in such custody
as he may think fit for a term not exceeding seven days in the
aggregate; and, on the expiry of the period of detention so
authorised, the accused person shall be released on bail
except where an order for further detention of the accused
person has been made by a Magistrate competent to make
such order; and, where an order for such further detention is
made, the period during which the accused person was
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detained in custody under the orders made by an Executive
Magistrate under this subsection, shall be taken into account
in computing the period specified in sub-section (3):
Provided that before the expiry of the period aforesaid, the
Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of
the entries in the diary relating to the case which was
transmitted to him by the officer in charge of the police
station or the police officer making the investigation, as the
case may be.
(7) A Magistrate authorising under this section detention in
the custody of the police shall record his reasons for so doing.
(8) Any Magistrate other than the Chief Judicial Magistrate
making such order shall forward a copy of his order, with his
reasons for making it, to the Chief Judicial Magistrate.
(9) If in any case triable by a Magistrate as a summons-case,
the investigation is not concluded within a period of six
months from the date on which the accused was arrested, the
Magistrate shall make an order stopping further investigation
into the offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the
interests of justice the continuation of the investigation
beyond the period of six months is necessary.
(10) Where any order stopping further investigation into an
offence has been made under sub-section (9), the Sessions
Judge may, if he is satisfied, on an application made to him or
otherwise, that further investigation into the offence ought to
be made, vacate the order made under sub-section (9) and
direct further investigation to be made into the offence subject
to such directions with regard to bail and other matters as he
may specify.
69. It specifically states that in cases where a person has
been arrested and detained in custody and the investigation
cannot be completed within 24 hours the police officer is of the
view that the accusation or information is well founded, he
should transmit to the Magistrate a copy of the entries in the
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specified diary and shall also at the same time forward the
accused to the Magistrate.
70. Thus, from the time of the arrest, the Police officer has a
right to detain the accused and have him in his custody for a
maximum period of 24 hours. This arrest and the power to
detain for a maximum period of 24 hours is the commencement
of the custody of law of a person who is accused of committing
an offence.
71. S. 187 (2) of the BNSS empowers a Magistrate before
whom the arrested person is produced for the first time to
authorize the detention of the accused (arrested person) in such
custody as he deems fit. This detention cannot however be
authorised for more than 15 days at a time and the maximum
initial period of detention that can be authorised can only be 40
days or 60 days out of the maximum detention period of 60
days (for offences other than those punishable by death or life
imprisonment) or 90 days (for offences punishable by death or
life imprisonment).
72. Thus, the Magistrate before whom an arrested person is
produced within 24 hours of his arrest is empowered to
authorize the detention of the arrested person for a maximum
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period of 90 days (for offences punishable by death and life
imprisonment) or 60 days (for other offences). However, the
detention can only be for a period of 15 days at a time in the
first 40 or 60 days of the initial detention. This detention, being
under the authority of the orders of the Magistrate would be the
retention of the custody of the person and would thus be
custody of law.
73. It must be noticed here that S. 187 (2) empowers the
Magistrate to authorize the detention of the arrested person to
the custody of the person to whom the Magistrate thinks fit. It
must also to be noticed here that the Magistrate also has the
option of releasing the arrested person on bail or denying him
bail and remanding him to custody. If a person is denied bail,
he simply continues to be in the custody of law.
74. At this stage a brief overview of the kinds of custody of an
arrested person who is in the custody of law would be
necessary.
75. The custody of law over an arrested person can be broadly
classified into two categories, i.e., Police custody and Judicial
custody. If the custody of the arrested person is made over to
the police/investigating authorities under the authority of the
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orders made by the Magistrate. This custody, in normal
parlance, is termed as Police custody.
76. If, however, the Magistrate feels that there is no
justification for the Police to have the custody of the arrested
person for investigative purposes and the release of the arrested
person would have a detrimental effect to the investigation or to
the victim, the Magistrate would authorize the continuation of
the detention of the arrested person in prison i.e., he would
remand the arrested person to the Prison authorities and this is
termed in normal parlance as ‘judicial custody’.
77. It must also be kept in mind that when a person accused
of committing an offence is enlarged on bail, he is, in fact, still
under the custody of the court but the court has merely
released him subject to him executing a bail bond and usually
subject to the furnishing of sureties who basically undertake to
the Magistrate that they would ensure that the person enlarged
on bail attends the Court as and when required and if he
defaults, they would be subjected to certain consequences. In
other words, even if an accused is enlarged on bail, his freedom
is not absolute and is curtailed and contained by conditions.
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78. It should be noted here that the custody of the arrested
person, whether he is in Police custody or Judicial custody,
would always be a custody of law. Thus, a person is in the
‘custody of law’ the moment he is arrested, and this ‘custody of
law’ continues when the Magistrate authorizes the extension of
his detention, either with the Police or in the Prison or even
when he is released on bail.
79. To summarize, the custody of the law over a person
accused of committing an offence, commences from the moment
he is arrested and continues under the authority of the orders
of the Magistrate. The custody of the law over such a person,
during investigation, is however subject to specific and rigid
timelines set by the provisions of S. 187 and is further subject
to his production before the Magistrate who would authorize the
detention of the person by either the investigating officer or the
jail authorities. If the investigation is not concluded within the
specified time-period of 60 days or 90 days, the arrested person
is entitled for being released on bail statutorily. In a sense, the
custody of law over a person accused of committing an offence
during the investigation phase is circumscribed by conditions
and an outer limit of 60 days or 90 days.
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b. CUSTODY OF LAW AFTER THE INVESTIGATION IS
COMPLETE
80. The entire process of arrest and detaining the person
arrested during the stage when the offence is still being
investigated would however have a completely different
complexion the moment the investigation is complete, and a
final report i.e., a charge-sheet is laid against the person
accused of the offence.
81. It is in this context that the definition of ‘bail’ becomes
relevant and the same is reproduced as under:
(b) “bail” means release of a person accused of or suspected
of commission of an offence from the custody of law upon
certain conditions imposed by an officer or Court on execution
by such person of a bond or a bail bond.
82. As could be seen from the definition of bail it essentially
means it is the release of a person accused of or suspected of
committing an offence “from the custody of law”. This definition
would therefore presuppose that the moment a person is
arrested he is under the custody of law. If a person is under the
custody of law, it will always be lawful custody and can never be
termed as unlawful custody. It is no doubt true that the lawful
custody is subject to the provisions of the act relating to the
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custody aspect itself i.e., ensuring that the person arrested and
who is in the custody of law is not detained beyond the periods
specified during the course of investigation. This is only being
stated to emphasize the fact that the moment a person is
arrested, he is always in the custody of law.
83. Section 193 of the BNSS stipulates that a police officer on
completion of the investigation must file a report commonly
referred to as the “charge-sheet”. On the final report under
Section 197 being filed before the Magistrate, the Magistrate is
empowered to take cognizance of the offence on the basis of the
arrest report under section 210(1)(b). If the Magistrate finds that
the offence alleged against the person is triable by only the
Sessions Court, he is required to commit the same to the
Sessions Court under Section 232 of the BNSS which reads as
under:
232. Commitment of case to Court of Session when offence is
triable exclusively by it.—When in a case instituted on a police
report or otherwise, the accused appears or is brought before
the Magistrate and it appears to the Magistrate that the
offence is triable exclusively by the Court of Session, he shall
—
(a) commit, after complying with the provisions of section
230 or section 231 the case to the Court of Session, and
subject to the provisions of this Sanhita relating to bail,
remand the accused to custody until such commitment has
been made;
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(b) subject to the provisions of this Sanhita relating to bail,
remand the accused to custody during, and until the
conclusion of, the trial;
(c) send to that Court the record of the case and the
documents and articles, if any, which are to be produced in
evidence;
(d) notify the Public Prosecutor of the commitment of the
case to the Court of Session:
Provided that the proceedings under this section shall be
completed within a period of ninety days from the date of
taking cognizance, and such period may be extended by
the Magistrate for a period not exceeding one hundred and
eighty days for the reasons to be recorded in writing:
Provided further that any application filed before the
Magistrate by the accused or the victim or any person
authorised by such person in a case triable by Court of
Session, shall be forwarded to the Court of Session with
the committal of the case.
84. As could be seen from above, the Magistrate on noticing
that the offences are triable exclusively by the Sessions Court, is
required to commit the case to the Sessions Court, subject to
the provisions of the BNSS relating to grant of bail. The
Magistrate is also empowered to remand the accused to custody
until such commitment is made. He is also further empowered
to remand the accused to custody during and until the
conclusion of the trial. He is thereafter required to send to the
Court the record of the case and the documents and articles
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and notify the public prosecutor of the commitment of the case
to the Court of Session.
85. It is to be noticed here that the Magistrate is empowered
to remand the accused to custody till either commitment of the
case is made to the Sessions Court or during and till the
conclusion of the trial by the Court of Session. If the Magistrate
takes a decision to remand the accused to custody till the
conclusion of the trial, it is obvious that the accused is in the
custody of the law till the conclusion of the trial.
86. Since the investigation is complete and the Police have
come to the conclusion that the accused is guilty of commission
of an offence, the question of the Police seeking for the custody
of the accused will not arise and the Magistrate can ensure that
the custody remains with the Prison authorities without any
timeline, as compared to the timelines stipulated during the
process of the investigation. It is for this reason S. 232 uses the
expression during and until the conclusion of trial. This would
therefore mean that once the investigation is complete, the
Magistrate would have the authority to continue the detention
till the conclusion of the trial. Thus, the custody of a person
who is ordered to be remanded to custody till the conclusion of
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the trial would be the custody of law and this custody would
necessarily be without reference to any timeline.
VI. CONCEPT OF BAIL & EFFECT OF REFUSAL TO GRANT
BAIL
87. Bail, as already observed above, is the release of a person
who has been arrested with an accusation of committing an
offence, from the custody of law upon certain conditions
imposed by the Court and on his execution of a bond.
88. If a person against whom an accusation is made of
commission of an offence and the competent Court takes
cognizance of this allegation and refuses to release him on bail
as provided under the provisions of the Act, such a person
obviously continues to be in the custody of law. The refusal of a
Court to release a person on bail simply means that that the
said person continues to be in “the custody of law”.
89. To put it differently, from the date of the arrest till the
accused is ordered to be released either on bail or on other
grounds such as discharge or acquittal, his custody shall
always be a custody of law and it can never be said that the
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custody of that person is either unlawful or it amounts to illegal
confinement.
VII. FRAMING A CHARGE AND TRIAL OF CASES BY THE
SESSIONS COURT
90. The provisions of Chapter – XIX stipulate that the trial is
to be conducted by the public prosecutor and the prosecution is
required to open its case by describing the charge brought
against the accused, when the accused appears or is brought
before the Court pursuant to a commitment of the case to the
Sessions Court. The prosecution is required to state what
evidence it proposes to adduce to prove the guilt of the accused
(Section 249).
91. The accused is thereafter entitled to make an application
seeking for discharge within 60 days from the date of
commitment under S. 250 and if such an application is made,
the Sessions Court on consideration of the record and the
documents and after hearing both the accused and the
prosecution, can come to the conclusion that there are no
sufficient grounds for proceeding against the accused and it can
discharge the accused and record the reasons for so doing.
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92. If, on the other hand, on consideration of the record and
the documents the Sessions Court is of the view that there is
ground for presuming that the accused has committed an
offence, he is required to frame a charge under Section 251 and
record the plea of the accused.
93. If the accused pleads not guilty and claims to be tried,
under Section 253, the Sessions Court is required to fix a date
for the examination of witnesses, and it is also empowered to
pass orders on the request of the prosecution for compelling the
attendance of any witness or the production of any document or
thing.
94. Thereafter, under Section 254, on the date fixed, the
Sessions Court is required to take all such evidence as may be
produced in support of the prosecution. The said provision also
confers discretion on the Sessions Court to permit the cross
examination of any witness to be deferred until other witnesses
have been examined.
95. It may be pertinent to state here that Section 254 which is
found in the chapter relating to trial by a Court of Session, there
is no prescription of any time limit as such and it only states
that on the date fixed for examination of witnesses, the
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witnesses are to be examined. There is no express stipulation
barring the adjournment or adjourning the matter beyond a
particular time.
96. Section 255 thereafter provides for the Sessions Court to
record an order of acquittal if he finds that the evidence
adduced by the prosecution and after examination of the
accused and hearing the Counsel there is no evidence that the
accused has committed the offence.
97. If, however, the Sessions Court does not record an
acquittal under Section 255, it is required to call upon the
accused to enter his defense and adduce any evidence that he
wishes to adduce under Section 255 and if the accused
produces any evidence, the prosecutor is required to sum-up
his case and the counsel for the accused is required to give his
reply.
98. The Sessions Court after hearing the arguments of the
counsel for the prosecutor and the counsel for the accused is
required to render a judgement as to whether the accused is
guilty or not. As could be seen from Section 258, the Sessions
Court is required to render a judgement within 30 days from the
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date of completion of the arguments or within a maximum
period of 45 days for valid reasons.
99. It is therefore clear from the reading of the provisions in
Chapter - XIX, there is no specific provision which dis-entitles
the Sessions Court from adjourning the matter or for restricting
the adjournment to a specified period once the trial has
commenced.
VIII. AN OVERVIEW OF Ch XXVI OF THE BNSS RELATING
TO GENERAL PROVISIONS RELATING TO TRIALS &
INQUIRIES
100. Chapter - XXVI of the BNSS relates to the general
provisions of as to inquiries and trials. The very nomenclature of
heading of this chapter would indicate that these are general
provisions regarding the inquiries and trials that will be
conducted under the BNSS, and they are not exactly referable
only to a trial by a Sessions Court. It is settled law that specific
and express provisions relating to a particular aspect of a
matter will prevail over the provisions which are meant for a
general purpose. To put it differently, the provisions in chapter -
XXVI are provisions which are to be generally followed, unless
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there are express provisions made for an inquiry or a trial under
the other provisions of the BNSS.
101. It is in this context that Section 346, upon which the
entire case of the petitioner is premised, will have to be
considered.
102. Section 346 reads as follows:
346. Power to postpone or adjourn proceedings.—
(1) In every inquiry or trial, the proceedings shall be continued
from day-to-day basis until all the witnesses in attendance
have been examined, unless the Court finds the adjournment
of the same beyond the following day to be necessary for
reasons to be recorded:
Provided that when the inquiry or trial relates to an offence
under section 64, section 65, section 66, section 67, section
68, section 70 or section 71 of the Bharatiya Nyaya
Sanhita, 2023 (45 of 2023), the inquiry or trial shall be
completed within a period of two months from the date of
filing of the chargesheet.
(2) 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 Court shall remand an accused person to
custody under this section for a term exceeding fifteen days
at a time:
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Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded
in writing:
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him:
Provided also that—
(a) no adjournment shall be granted at the request of a
party, except where the circumstances are beyond the
control of that party;
(b) where the circumstances are beyond the control of a
party, not more than two adjournments may be granted by
the Court after hearing the objections of the other party and
for the reasons to be recorded in writing;
(c) the fact that the advocate of a party is engaged in
another Court shall not be a ground for adjournment;
(d) where a witness is present in Court but a party or his
advocate is not present, or the party or his advocate,
though present in Court, is not ready to examine or crossexamine
the witness, the Court may, if it thinks fit, record
the statement of the witness and pass such orders as it
thinks fit dispensing with the examination-in-chief or crossexamination
of the witness, as the case may be.
Explanation 1.— If sufficient evidence has been obtained to
raise a suspicion that the accused may have committed an
offence, and it appears likely that further evidence may be
obtained by a remand, this is a reasonable cause for a
remand.
Explanation 2.— The terms on which an adjournment or
postponement may be granted include, in appropriate
cases, the payment of costs by the prosecution or the
accused.
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103. As could be seen from Section 346, it deals with the
power conferred on the Court to postpone or adjourn the
proceedings. Sub-section (1) states that in every inquiry or trial,
the proceedings shall be continued on a day-to-day basis until
all the witnesses in attendance have been examined. It states
that the Court may adjourn the proceedings beyond the
following day, if it found it to be necessary, but it will have to
record its reasons. Thus, sub-section (1) basically stipulates
that every attempt shall be made to conduct an inquiry or a trial
on a day-to-day basis and the same should not be adjourned
beyond the following day and even if there is such an
adjournment, specific reasons are to be recorded.
104. The Proviso to Section 346(1) creates an outer limit of 2
months for conducting a trial in respect of offences under
Section 64 to 68 and Section 70 to 71 of the BNSS Thus, it is
only in the cases contemplated by the Proviso, the trial would
have to be completed within a period of 2 months.
105. Section 346(2) states that after the Court has taken
cognizance of the offence, if it finds it necessary to postpone the
trial, it may from time to time, for reasons to be recorded,
postpone, or adjourn the trial for such time as it considers
reasonable. It stipulates that on such a postponement or
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adjournment being made, the Court may by warrant, remand
the accused, if in custody.
106. It is to be noticed here that the term ‘remand the
accused, if in custody’ would mean that if the accused is
already in custody, by issuance of a warrant, i.e., a written
direction, the accused can be remanded. It may be pertinent to
state here that there is no time limit prescribed for the custodial
period in Section 346(2) when it comes to the remand of the
accused who is already in custody.
107. However, the entire argument in this case is based on the
first proviso which states that the Court shall not remand the
accused to custody under this section for a term exceeding 15
days at a time.
108. It is to be noticed here that the proviso contemplates
remanding “an accused person to custody” as compared to
the expression in S. 346 (2) which is “remand the accused if
in custody”. This Proviso which stipulates a maximum remand
period of 15 days would basically come into operation only if the
Court, while adjourning or postponing the trial, is remanding
the accused who is not in custody and for the first time is
ordered to be taken into custody while adjourning or postponing
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the trial. It is only in such a situation that the remand can only
be for a period of 15 days. However, if a person is already in
custody, no such time limit can be ascribed when remanding
him to custody.
109. The difference in the terminology in Section 346(2) and
the first proviso of section 346(2) 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.
110. 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
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intention of facilitating an expeditious conduct of the trial and
to remove any impediments that is being caused for the conduct
of the trial.
111. It may be pertinent to state here that the Courts may not
have the power to cancel the bail as provided in Section 478 of
BNSS because there has been no violation of the conditions
imposed while granting bail. 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.
112. 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.
113. 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
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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.
114. If a person is already in custody after the investigation is
complete, as already observed above, his custody is not limited
by any timeline, and it would be till the conclusion of the trial. It
is for this reason. S. 346 (2) simply states that the person in
custody is to be remanded in custody and no time limit for the
remand is stated.
115. It is to be stated here that under the provisions of the
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. Even in such cases, the production of the
accused to continue the detention is necessary and there is a
definite outer limit for the detention during the investigation
phase.
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116. 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.
117. It is in this context that the definition and concept of bail
would become highly relevant. As already stated above, the
moment a person is arrested, he is in the custody of law. The
moment the accused is produced before a Magistrate and the
Magistrate orders him to be remanded to custody, he continues
to be in the custody of law.
118. It is no doubt true that it is within the discretion of the
Magistrate or the Sessions Court to release a person accused of
an offence on bail. If, however, the Magistrate or the Sessions
Court refuses to release the person on bail, such a person
would always be in the custody of law. If a person is in the
custody of law, the question of that person being illegal
confinement or his custody being unlawful would not arise.
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119. It is to be pertinent to state here that when the request of
the accused for bail has been rejected by the Sessions Court
and by the High Court, the consequence would be that the
accused will have to be within the custody of law until orders
are passed subsequently either on bail or on discharge or on
acquittal. In other words, when bail is refused and until the
accused is released on bail subsequently or is discharged or is
acquitted, he would always be in the custody of law and there is
no time limit for this custody after the request for bail has been
rejected. Such a person whose bail request has been rejected
continues to be in lawful custody till the conclusion of the trial.
120. It is therefore clear that the argument of the learned
Counsel for the Petitioner that the remand of the accused to
custody beyond 15 days amounts to illegal detention cannot be
accepted. If the petitioners were to be remanded to custody for
the first time while the trial was being adjourned, the outer limit
of 15 days would come into operation. If on the other hand, the
accused were already in custody and the request for bail had
been rejected, they will have to be in custody till the conclusion
of the trial or till subsequent orders regarding their bail are
passed. It is, therefore, clear that the entire argument of the
petitioner that the custody of the petitioners became illegal after
15 days from 17.11.2025 cannot be accepted.
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IX. ENTITLEMENT TO BE RELEASED ON BAIL AFTER THE
COMMENCEMENT OF TRIAL
121. It may be pertinent to state here that there are only two
provisions which entitles an accused person of a right to be
released on bail after the trial has commenced and the same are
found only under S. 479 and S. 480(6). S. 479 of BNSS which
reads as follows:
Section 479. Maximum period for which under-trial
prisoner can be detained.
(1) Where a person has, during the period of investigation,
inquiry or trial under this Sanhita of an offence under any law
(not being an offence for which the punishment of death or life
imprisonment has been specified as one of the punishments
under that law) undergone detention for a period extending up
to one-half of the maximum period of imprisonment specified
for that offence under that law, he shall be released by the
Court on bail:
Provided that where such person is a first-time offender (who
has never been convicted of any offence in the past) he shall
be released on bond by the Court, if he has undergone
detention for the period extending up to one-third of the
maximum period of imprisonment specified for such offence
under that law:
Provided further that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period
longer than one-half of the said period or release him on bail
bond instead of his bond:
Provided also that no such person shall in any case be
detained during the period of investigation, inquiry or trial for
more than the maximum period of imprisonment provided for
the said offence under that law.
Explanation.—In computing the period of detention under this
section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be excluded.
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(2) Notwithstanding anything in sub-section (1), and subject to
the third proviso thereof, where an investigation, inquiry or
trial in more than one offence or in multiple cases are pending
against a person, he shall not be released on bail by the
Court.
(3) The Superintendent of jail, where the accused person is
detained, on completion of one-half or one third of the period
mentioned in sub-section (1), as the case may be, shall
forthwith make an application in writing to the Court to
proceed under sub-section (1) for the release of such person
on bail.
122. Section 479 enables an accused who is under detention to
be released on bail, if his detention has been for more than one
half of the maximum period of imprisonment specified for that
offense under that law, provided the offences are not punishable
by death or life imprisonment. If he has been detained for more
than 50% of the term of punishment that he would get
ultimately on being convicted, he gets a right to be released on
bail. This time limit is further reduced in case the person
accused is a first time offender by reducing the period of
detention to 1/3 of the maximum period. The only requirement
of the Court is that it should hear the public prosecutor before
it releases the person who has been in detention for more than
half the period for which he could likely be sentenced.
123. Section 479(2), however, makes an exception saying that
the benefit of bail will not be entitled to such a person, if he is
facing an enquiry or trial in respect of multiple cases. It may be
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pertinent to state here that the Superintendent of the Jail,
where the accused person is detained is imposed with an
obligation of making an application in writing to the Court if the
detenue under him has already spent more than half or 1/3 of
the term of imprisonment that he could face. Thus, the
entitlement to seek bail after the trial has commenced would be
available, if the accused has been detained for more than 50%
of the term or 1/3 of the term for which he is likely to be
imprisoned even if he is convicted.
124. The second provision which entitles a person to be
released on bail after the trial has commenced can be found
under section 480(6),which reads as follows:
“(6) 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.”
125. As could be seen from the above, it is only if a case is
triable by a Magistrate and the trial of a person who is accused
of a non-bailable offence has not been concluded within 60
days, would an accused become entitled to be released on bail.
In other words, only in respect of cases triable by a Magistrate,
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if the trial is not concluded within 60 days of its
commencement, the accused can demand to be released on bail
under Section 480 if he has remained in custody till that stage.
126. It may be pertinent to state here that there is no such
provision when it comes to the release of a person for nonconclusion
of trial by the Sessions Court for cases triable by it.
If the provisions of the BNSS Act explicitly provide a right only
in respect of cases triable by a Magistrate when there is a delay
in the conclusion of a trial, by necessary implication, an
accused who is being tried by Sessions Court will have no right
to seek for bail because of any delay in the conclusion of the
trial.
127. To put it differently, if the trial of a person accused of an
offence which is triable by a Sessions Court is not concluded
within any specified time frame, such a person cannot seek for
bail. In other words, in respect of the trial of persons accused of
committing offences triable by a Sessions court, the length of
the trial would have no bearing at all. Even if the trial is not
concluded for a reasonably long period of time, the accused
cannot seek for the grant of bail in the same manner as an
accused who is facing a trial of offences which are triable only
by the Magistrate. This clear distinction made by the statute in
respect of offences triable by the Sessions and by the Magistrate
would only indicate that no accused can have a right to demand
that he be released on bail because there is a delay in the
conduct of his trial. If read in this context, the Proviso under
Section 346(2) would lose all its relevance and no accused, who
is accused of committing an offence which is exclusive trial by
Sessions Court, can demand that he be remanded only to a
period below 15 days.
128. We may hasten to add that this does not mean that the
Sessions Court has the discretion to conduct the trial a leisurely
pace. The general provision relating to inquiries and trials which
mandate trial to be conducted on a day-to-day basis will have to
be adhered to and reasons will have to be assigned, if the matter
is being adjourned beyond the following day. This rigor would
always remain, but at the same time, the non-adherence to this
requirement of conducting a trial on a day-to-day basis would
not transform into a right for the accused to contend that his
detention or remand to custody is illegal and that he should be
released on bail forthwith.
129. It should be clarified here that if there is a delay in the
commencement or conclusion of the trial for reasons which are
not attributable to the accused, the accused would have the
right to seek for bail on the ground that his incarceration is
unnecessarily being prolonged due to the delay in the conduct
of the trial for no fault on his part. In such an event, the Court
would have to consider this request and take a decision on
merits of the said claim. This would not however mean that the
accused has acquired an indefeasible right to secure bail. The
accused would always be in the custody of law and it cannot not
be urged that he is in illegal detention.
130. The judgments referred to above and upon which reliance
was placed by Sri. Bhatt do not consider this aspect of the
matter i.e., the difference in the term remanded if in custody
used in S. 346 (2) and the term remanded to custody in the first
proviso to S. 346 (2) and all the citations relate to other issues
and they can be of no assistance to the arguments advanced by
the learned counsel
131. We, therefore, find no ground to entertain these writ
petitions. Accordingly, the present writ petitions are dismissed.
(N.S.SANJAY GOWDA,J)
(D. M. VYAS, J)
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