The 15-Day Remand Myth under BNSS: Gujarat High Court Shuts Down a Clever Habeas Corpus Ploy

When the doors of the Supreme Court close on your bail application, what does a desperate defense counsel do? They comb through the statute book looking for a technicality—a misplaced comma, a drafting error, or an ambiguous proviso—to unlock the prison gates. In the transition from the old Criminal Procedure Code (CrPC) to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, defense lawyers have found a playground of untested terminology.

In the recent judgment of Vinodbhai Tilakdhari Tiwari v. State of Gujarat (decided on January 16, 2026), the Gujarat High Court was forced to confront exactly such a technical gambit. The petitioners tried to use a Habeas Corpus writ to bypass multiple bail rejections, arguing that a Sessions Court's adjournment order extending their judicial remand beyond 15 days was statutorily void under the new BNSS.

Justices N.S. Sanjay Gowda and D.M. Vyas delivered a pragmatic, textually brilliant judgment that saved the criminal justice system from a logistical nightmare. However, while the Bench got the statutory interpretation perfectly right, they let a glaring administrative failure by the lower court slide. Here is why this judgment is a mandatory read for every criminal practitioner navigating the new Sanhita.

The Habeas Corpus Hail Mary: Exploiting Section 346 of BNSS

To understand the defense's strategy, we must look at the timeline. Vipul and Pratik Tiwari were arrested in late 2024 for various offences under the BNS. They fought for regular and anticipatory bail tooth and nail, but were rejected by the Sessions Court, the High Court, and ultimately, the Supreme Court. They were firmly in the "custody of law."

The trial commenced. On January 12, 2025, the Sessions Court examined the first prosecution witness (PW-1) and then did something procedurally outrageous—it adjourned the matter to December 1, 2025.

Sensing an opening, the defense counsel did not file another bail application. Instead, they filed a writ of Habeas Corpus. Their weapon of choice was the First Proviso to Section 346(2) of the BNSS (the equivalent of the old Section 309 CrPC), which governs the postponement and adjournment of inquiries and trials.

The proviso explicitly states: "Provided that no Court shall remand an accused person to custody under this section for a term exceeding fifteen days at a time."

The argument was clever in its simplicity: The statute strictly forbids a trial court from remanding an accused for more than 15 days at a time. The Sessions Court remanded the accused for nearly 11 months. Therefore, the remand order is non est (void), the custody has transformed into illegal confinement, and the writ court must set the accused at liberty.

Defeating the State’s Lazy "Maintainability" Argument

Before diving into the BNSS, the High Court had to deal with the State's predictable, boiler-plate objection. The Public Prosecutor argued that a Habeas Corpus petition simply cannot be maintained against a judicial order of remand.

The High Court rightly dismantled this lazy argument. Citing the Supreme Court’s rulings in Gautam Navlakha (2022) and V. Senthil Balaji (2024), the Bench firmly reiterated a core constitutional principle: judicial officers do not have blanket immunity from Article 226 when they flagrantly violate mandatory statutory provisions.

"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."

This is a vital warning shot for Magistrates and Sessions Judges. You cannot hide behind the shield of "judicial function" if your remand order fundamentally ignores the statutory limits on liberty. Habeas Corpus was maintainable. The real question was whether the 15-day limit actually applied to the Tiwaris.

Grammatical Gymnastics: "If in Custody" vs. "To Custody"

If the High Court had accepted the petitioner’s literal reading of the 15-day proviso, it would have paralyzed the Indian trial court system. Every Sessions Judge would be forced to mechanically renew remand warrants every fortnight for lakhs of undertrials whose bails have already been rejected.

To avoid this absurdity, Justices Gowda and Vyas engaged in a masterclass of purposive statutory interpretation. They highlighted a subtle, yet massive, difference in the phrasing between the main body of Section 346(2) and its First Proviso.

• Section 346(2) (The Main Provision): States that a court adjourning a trial may "remand the accused if in custody". Notice there is no time limit mentioned here.
• The First Proviso: States that no court shall "remand an accused person to custody" for a term exceeding 15 days.

The Court held that the 15-day cap applies only when an accused is being remanded to custody for the first time during the trial. For example, if an accused is out on bail, but is actively tampering with witnesses or causing impediments to the trial, the judge can cancel the bail and remand him to custody to ensure a smooth trial. Because this is a sudden deprivation of liberty during the trial phase, the legislature capped it at 15 days at a time.

However, if an accused is already in custody because his regular bail applications were rejected on merits, his detention is indefinite until the trial concludes (subject to maximum undertrial limits under Section 479 BNSS). For such prisoners, the court is merely continuing their lawful custody. The 15-day limit does not apply to them.

This interpretation is legally sound and practically essential. The defense tried to conflate an "investigative remand" (which has strict 15-day/60-day/90-day limits under Section 187 BNSS) with a "trial remand" (where custody continues because bail was denied). The High Court correctly slammed the door on this conflation.

The Elephant in the Room: An 11-Month Adjournment

While I applaud the High Court's statutory interpretation, their administrative leniency toward the Sessions Court is highly disappointing.

Let us look at the facts again. On January 12, 2025, the Sessions Court examined PW-1 and adjourned the trial to December 1, 2025. An eleven-month adjournment for an undertrial prisoner.

Section 346(1) of the BNSS explicitly mandates that proceedings "shall be continued from day-to-day basis." The entire legislative intent behind the BNSS was to eradicate the culture of endless adjournments. Yet, faced with a Sessions Judge who blatantly violated this mandate, the High Court offered only a mild judicial rap on the knuckles, stating: "We may hasten to add that this does not mean that the Sessions Court has the discretion to conduct the trial at a leisurely pace."

A "leisurely pace"? It is a complete abdication of judicial duty. The High Court was so focused on defeating the petitioner's clever Habeas Corpus argument that it failed to demand accountability from the trial judge who created the mess in the first place. When trial courts grant 11-month adjournments to undertrials, they actively invite these desperate, hyper-technical writ petitions. The High Court should have passed strictures against the presiding officer and ordered day-to-day monitoring of the trial.

The Pragmatic Takeaway for Counsel

For criminal defense lawyers, Vinodbhai Tilakdhari Tiwari draws a hard line in the sand regarding the new Sanhita. You cannot use Section 346(2) as a backdoor to secure release when conventional bail has failed.

If your client is stuck in an endlessly delayed Sessions trial, a Habeas Corpus petition claiming "illegal custody" is a dead end. Instead, your remedy lies in filing a fresh application for regular bail citing the delay in trial (as recognized by the Supreme Court in cases like Union of India v. K.A. Najeeb), or invoking the maximum undertrial detention provisions under the newly minted Section 479 of the BNSS.

The BNSS has changed the wording of our criminal laws, but as the Gujarat High Court proved, it has not altered the fundamental gravity of judicial custody. Clever grammar will not override a Supreme Court bail rejection.