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

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application was also withdrawn by the applicant, on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)