Gujarat HC: Remand Beyond 15 Days Of Accused Already In Custody S.346(2) BNSS in Session trial is Not Illegal

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

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Whether session judge can remand accused for more than fifteen days?

 By these Petitions, the Petitioners seek their release by invoking the writ of Habeas corpus on the ground that their judicial custody was authorized beyond a period of 15 days by the designated Court, which is contrary to the mandate of section 309(2) of Cr.P.C., the same is violative of Article 21 of the Constitution of India.

We have given our thoughtful consideration to the points urged by both sides, and we are of the considered view that writ of Habeas Corpus is not maintainable in the facts of the present case.

12. To consider the points raised by the learned counsel for the Petitioners, it is necessary to refer the relevant provisions of Cr.P.C. Section 309(2) of Cr.P.C. reads as under:

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..............

13. On plain reading of Section 309(2) of Cr.P.C., it is clear that the Court after taking cognizance of an offence, or at the time of commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, after recording reasons, on such terms as it thinks fit, and for such time as it considers reasonable and it may accordingly issue warrant remanding the accused in custody. In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.

16. If we apply the above settled principles of interpretation to section 309(2) of Cr.P.C., on plain reading of the said provision, it is clear that legislature did not intend to impose any restriction on the power of the Sessions/Special/Designated Court to remand the accused in further judicial custody for a particular period. Of course, this can be done only after cognizance is taken by the Sessions/Special/Designated Court and when the matter is to be adjourned, reasons for the same have to be recorded.

17. The proviso to section 309(2) of Cr.P.C. however carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under section 309(2) of Cr.P.C. for a term exceeding 15 days at a time. Thus, on plain reading of section 309(2) of Cr.P.C. and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of Cr.P.C. to put limitation on the power of the trial Court while exercising the powers under section 309(2) of Cr.P.C.

18. In the light of above discussion, we are unable to accept the proposition of the learned counsel for the Petitioner that the designated Court could not have authority to remand of the Petitioner for a period exceeding 15 days. According to us, no such restriction can be read in section 309(2) of Cr.P.C.

20. The designated Court upon filing of the charge-sheet and after taking cognizance, deals with the matter in the capacity of the designated Court. As we have already observed in the foregoing paras, the Sessions Court/Special Court and in the present case the designated Court, does not have any restrictions on extending the remand beyond period of 15 days which restriction is only applicable to the Magistrates in terms of the proviso to section 309(2) of Cr.P.C. Hence, we do not agree with this proposition advanced by the learned counsel for the Petitioners.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2639 and 2640 of 2019

Decided On: 18.12.2019

Harshad Dinanath Bari Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

S.S. Shinde and N.B. Suryawanshi, JJ.

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Whether police can seek Custody of Accused who are arrested after filing of Charge Sheet?

 In view of the above facts, in the present case, in our
opinion, the High Court is not justified on the basis of Dinesh

Dalmia (supra) in upholding refusal of remand in police
custody by the Magistrate, on the ground that accused stood
in custody after his arrest under Section 309 CrPC. We have
already noted above the principle of law laid down by the three
judge bench of this Court in State v. Dawood Ibrahim
Kaskar (supra) that police remand can be sought under
Section 167(2) CrPC in respect of an accused arrested at the
stage of further investigation, if the interrogation is needed by
the investigating agency. This Court has further clarified in
said case that expression ‘accused if in custody’ in Section
309(2) CrPC does not include the accused who is arrested on
further investigation before supplementary charge sheet is
filed.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1081 OF 2015
(Arising out of S.L.P. (Crl.) No. 3611 of 2015)

Central Bureau of Investigation V Rathin Dandapat and others 

Prafulla C. Pant, J.
Dated;August 21, 2015.

Citation: 2015 SCC OnLine SC 743

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Guidelines to Session Judge for trial of Session trial

Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.

13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of Section 309 of the Code.

14. If any court finds that the day-today examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).

18. It is no justification to glide on any alibi by blaming the infrastructure for skirting the legislative mandates embalmed in Section 309 of the Code. A judicious judicial officer who is committed to his work could manage with the existing infrastructure for complying with such legislative mandates. The precept in the old homily that a lazy workman always blames his tools, is the only answer to those indolent judicial officers who find fault with the defects in the system and the imperfections of the existing infrastructure for their tardiness in coping with such directions.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR

S.B. CR. MISC. BAIL APPLICATION NO. 8609/2013
SHIVA @ SAVARAM VS. STATE OF RAJASTHAN

DATED : 08.11.2013
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Citation; 2014 (1) crimes 102 Raj

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Whether Court is competent to remand accused to custody U/S 309(2) CRPC even if he is in illegal imprisonment?.

The word "custody" in Section 309, Cr.P.C., in our opinion therefore, means physical imprisonment as distinct from being on bail. Even if the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court he is in custody as distinct from being on bail. The word "custody" therefore embraces both legal imprisonment as well as illegal imprisonment."

"The Court is, therefore, competent to remand the accused to custody under S. 309(2), Cr.P.C., even if he is in illegal imprisonment. It can thus rectify its mistake and transform his illegal imprisonment into legal imprisonment."

In view of the above discussion it is clear that the submissions of the learned counsel are not tenable. The remand order dated 20.4.2005 was to continue till 26.04.2005. During this period a fresh remand order under section 309 was passed on 25.4.2005 (though not expressly) and at any rate on 26.4.2005. There is no dispute that the order dated 20.4.2005 was a valid order under section 167. As indicated above, it did not cease to operate on the mere filing of the charge-sheet and upon cognizance being taken. It ceased to operate possibly on 25.4.2005 (if the production order is taken to be an implied remand order) and definitely on 26.4.2005, both, because of lapse of time and because the fresh remand order under section 309) CrPC came to be passed. The remand order of 26.04.2005 was passed after cognizance had been taken and when the petitioner was in custody in the sense explained above. At present also, the petitioner is in judicial custody on the basis of a subsequent valid remand order. In these circumstances the petitioner is not entitled to be released on bail on the grounds urged by him. Accordingly, this application is dismissed. It is made clear that no arguments were advanced on 'merits' nor was this application treated a regular bail application solely under section 439 CrPC. The entire scope and discussion centered around section 309 CrPC. So, the dismissal of this application does not foreclose the petitioner from moving an application for regular bail under section 439 CrPC which, if filed, would undoubtedly be disposed of on merits.

Delhi High Court

Sunil Kumar Sharma vs State (Nct Of Delhi) on 27 June, 2005

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Whether Court can examine witness present before Court where party or his pleader is not present in the Court?

  As per section 309 subsection 2 sub clause  (c), crpc

"where a witness is present in the court but a party or his pleader is not   present or the party or his pleader though present in the court is not ready to  examine or  cross examine the witness, but court may if thinks fit, record the statement of witness and pass such orders as it thinks fit dispensing with examination in chief or cross examination of the witness as the case may be".

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