Habeas Corpus Plea To Challenge Detention Under Judicial Remand Maintainable If Statutory Or Constitutional Violations Alleged: Gujarat High Court

The Court clarified that the argument of the State that such petitions are barred merely because custody flows from a judicial order cannot be sustained in law.

The Court was hearing petitions filed by a father alleging illegal detention of his sons, who were arrested in connection with criminal offences and whose bail applications had been rejected at multiple levels.

A Division Bench of Justice N.S. Sanjay Gowda and Justice D.M. Vyas observed that “a writ petition seeking to invoke the habeas corpus jurisdiction to question the detention made pursuant to a judicial order will be maintainable".

Background

The accused were arrested in connection with offences registered in September 2024 and remained in custody after their bail applications were rejected by the Sessions Court, High Court, and the Supreme Court.

After the completion of the investigation, a charge sheet was filed, and the matter was committed to the Sessions Court for trial.

Charges were framed, and proceedings commenced. The petitioners alleged that a remand order extending custody beyond fifteen days violated the statutory mandate under the Bharatiya Nagarik Suraksha Sanhita (BNSS), rendering detention illegal and justifying issuance of habeas corpus.

The State opposed the petitions, contending that once detention is pursuant to a judicial remand order, a writ of habeas corpus is not maintainable.

Court’s Observations

Constitutional Safeguards Against Arrest And Detention

The Court began by examining Article 22 of the Constitution, emphasising that it guarantees procedural safeguards such as the right to be informed of the grounds of arrest, to consult a lawyer, and to be produced before a Magistrate within 24 hours.

These safeguards were described as fundamental protections designed to ensure that detention does not occur arbitrarily.

It held that the constitutional scheme recognises liberty as a core fundamental right and that any deviation from the safeguards would amount to infringement of that right, entitling the detainee to seek constitutional remedies.

“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 Article 32 or Article 226 of the Constitution”, the Bench remarked.

Maintainability Of Habeas Corpus Against Judicial Orders

Addressing one of the primary issues, the Bench analysed precedent, including decisions of the Supreme Court, clarifying when habeas corpus lies despite judicial custody. It noted that the apex court has held that such a writ would lie if the remand is absolutely illegal, suffers from a lack of jurisdiction, or is passed mechanically without application of mind.

The Court distinguished the authorities cited by the State, which suggested that remand orders cannot be challenged through habeas corpus. It clarified 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 habeas corpus would not be maintainable”.

Statutory Framework Of Arrest And Custody Under BNSS

The Bench undertook a detailed examination of the BNSS scheme governing arrest, custody, investigation, and remand. It noted that the statute contains elaborate safeguards regulating arrest powers, documentation requirements, communication to relatives, and production before a Magistrate, all of which reinforce constitutional protections.

The Court explained that “custody of law” begins the moment a person is arrested and continues so long as detention is authorised by lawful orders. Such custody may be police custody or judicial custody, but in both situations, it remains lawful provided statutory requirements are satisfied.

It further clarified that once the investigation concludes and a charge sheet is filed, the legal framework governing custody shifts from investigative detention to trial-stage custody, and the nature and scope of remand powers must be understood in that context.

Limits Of Remand Powers And Judicial Scrutiny

The Court emphasised that the law imposes strict timelines and conditions on detention during investigation and requires judicial oversight at every stage. These limitations exist because detention directly curtails personal liberty, which the legal system treats as a serious deprivation requiring constant scrutiny.

It stressed that compliance with statutory safeguards is essential to sustain lawful custody. Failure to follow mandatory provisions could render detention illegal, thereby justifying the invocation of constitutional remedies, including habeas corpus.

Entitlement To Bail After Commencement Of Trial

The Court examined whether an accused whose trial has commenced, particularly in offences triable by a Sessions Court, can claim bail merely on the ground of delay in the conclusion of the trial.

The Bench clarified that once a trial has begun, the statutory framework governing custody operates differently from the investigation stage, and no automatic right to bail arises solely because proceedings are prolonged. It held that in prosecutions for offences triable by a Sessions Court, the duration of trial by itself does not create an entitlement to bail, and an accused cannot claim release in the same manner as in cases triable by a Magistrate.

“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”, the Court remarked.

The Court, however, clarified 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 rigour, the Court concluded, “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”.

Conclusion

The High Court held that petitions seeking habeas corpus are maintainable even against detention arising from judicial remand where the challenge is grounded in violation of constitutional safeguards or statutory mandates governing custody. It rejected the State’s objection to maintainability and answered the first legal question accordingly, clarifying that the legality of detention, not merely the existence of a remand order, is the determinative test.

Finding no grounds to entertain the petitions, the High Court accordingly dismissed them. 

Cause Title: Vinodbhai Tilakdhari Tiwari v. State of Gujarat & Ors. (Neutral Citation: 2026:GUJHC:2986-DB)

Appearances

Applicant: Bhargav Bhatt with Devarsh Pandya, Manan S. Doshi, Kishan R. Chakwawala, Advocates.

Respondent: Hardik Dave, Public Prosecutor with Chintan Dave, Monali Bhatt and Pranav Dhagat, Additional Public Prosecutors.

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