Isabella Mariam

The High Court of Gujarat Division Bench of Justice N.S. Sanjay Gowda and Justice D. M. Vyas has dismissed habeas corpus petitions filed by the father of two accused in judicial custody, who sought their release on the claim that their detention became unlawful after the trial court adjourned proceedings and extended remand beyond 15 days under the first proviso to Section 346(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Bench held that remand beyond the 15-day period, by itself, does not make custody illegal, and a habeas corpus petition will lie only where the remand order is patently unlawful, without jurisdiction, or passed mechanically.

The petitions were filed by the father of two accused seeking issuance of a writ of habeas corpus on the ground that his sons were under illegal detention. The accused had been arrested in connection with offences under various provisions of the Bharatiya Nyaya Sanhita and the Gujarat Police Act. Their applications for bail were rejected by the Sessions Court and subsequent attempts before the High Court and the Supreme Court also did not result in grant of bail.

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After completion of investigation, a charge-sheet was filed and the case was committed to the Sessions Court. Charges were framed and the trial commenced. During the course of trial, the Sessions Court adjourned the matter beyond fifteen days while remanding the accused to custody. The petitioners contended that such remand violated the first proviso to Section 346(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and rendered the custody illegal. The State opposed the petitions, contending that custody pursuant to judicial remand orders could not be termed illegal and that habeas corpus was not maintainable in such circumstances.

The Bench examined the constitutional safeguards under Article 22 and the statutory framework of the BNSS. The Court observed, “Article - 22 grants a certain degree of protection when a person is arrested and is being detained.” It further recorded that once the constitutional and statutory safeguards are complied with, the detention becomes lawful custody.

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

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

Clarifying the nature of custody, the Court observed: “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 custody of that person is either unlawful or it amounts to illegal confinement.”

The Bench clarified that, under the BNSS framework, the specific limits on detention operate at the stage of initial arrest or first-time custody while the investigation remains incomplete. In that situation, custody is to be authorised in defined blocks—up to 24 hours in the first instance and thereafter not exceeding 15 days at a time—subject to the overall outer limits of 60 or 90 days, as applicable. The Bench recorded: "It is this period of 15 days, which is contemplated during the investigation stage, that is incorporated in the first proviso to S. 346 (2) when the trial is being postponed or adjourned. This period of 15 days can apply only when the Court decides to remand an accused to custody while adjourning the matter. If the accused is already in custody, all that the Court is required to do is to remand him once again in custody by issuance of a warrant and there is no question of setting a timeline for the remand.”

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

Finally, rejecting the core argument of the petitioners, the Court stated: “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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The Court recorded: “We, therefore, find no ground to entertain these writ petitions.” It accordingly directed: “Accordingly, the present writ petitions are dismissed.” No further relief was granted to the petitioners.

Advocates Representing the Parties

For the Petitioners: Mr Bhargav Bhatt, Advocate, with Mr Devarsh Pandya, Advocate, Mr Manan S Doshi, Mr Kishan R Chakawala

For the Respondents: Mr Hardik Dave, Public Prosecutor, with Mr Chintan Dave, Additional Public Prosecutor, Ms Monali Bhatt, Additional Public Prosecutor, and Mr Pranav Dhagat, Additional Public Prosecutor

Case Title: Vinodbhai Tilakdhari Tiwari v. State of Gujarat & Ors.
Neutral Citation: 2026:GUJHC:2986-DB
Case Number: R/Special Criminal Application (Habeas Corpus) No. 15962 of 2025 with R/Special Criminal Application No. 15963 of 2025
Bench: Justice N.S. Sanjay Gowda and Justice D. M. Vyas