Bombay HC: Extending Remand Under BNSS Without Hearing Is Illegal and Violates Article 21

In a significant ruling interpreting the new criminal laws, the Bombay High Court has declared that extending an accused's judicial remand beyond the statutory 60-day period under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, without providing a hearing and passing a reasoned order is contrary to law and a violation of the fundamental right to liberty under Article 21 of the Constitution.

The judgment, delivered by Justice Sachin S. Deshmukh in the case of Ranganth Tulshiram Galande & Anr. v. State of Maharashtra , establishes a crucial precedent for procedural compliance under the new legal regime. It firmly reinforces that the personal liberty of an individual cannot be curtailed through mechanical or unreasoned judicial actions, thereby creating an "indefeasible right" to default bail for the accused when prescribed procedures are flouted.

Case Background: A Procedural Lapse and a Constitutional Challenge

The matter came before the High Court via a criminal writ petition filed by two individuals accused of offences under the newly enacted Bharatiya Nyaya Sanhita (BNS), 2023, and the Maharashtra Protection of Interests of Depositors (MPID) Act, 1999. The petitioners were in judicial custody, and the investigating agency failed to file the charge sheet within the initial 60-day period stipulated under Section 187(3) of the BNSS.

Consequently, the petitioners sought default bail, a statutory right that accrues to an accused when the investigation is not completed within the prescribed timeframe. The prosecution, in an attempt to counter this, invoked Section 316(5) of the BNS, which deals with an offence carrying a potential life sentence. Their contention was that the addition of this more serious offence automatically extended the permissible period for filing the charge sheet from 60 to 90 days.

However, the procedural handling of this extension request became the central point of contention. The Magistrate, when presented with the prosecution's application to extend the remand, merely endorsed it as “seen.” No formal hearing was granted to the accused, nor was a reasoned order passed justifying the extension of their detention. Based on this simple endorsement, the Sessions Court subsequently dismissed the petitioners' application for default bail, prompting them to approach the Bombay High Court.

The High Court's Scrutiny: Upholding Procedural Sanctity and Article 21

Justice Deshmukh's bench conducted a meticulous examination of the procedural requirements under the new BNSS, framing the right to default bail within the broader constitutional guarantee of personal liberty. The Court unequivocally held that judicial remand and its extension are not mere formalities but solemn judicial functions that demand strict adherence to statutory mandates.

The Court observed that the right to claim default bail is "premised on the anvil of Article 21 of the Constitution of India." Any deprivation of liberty must be in accordance with the procedure established by law, and this procedure must be fair, just, and reasonable.

The Mandatory Nature of Hearing and Reasoned Orders

The judgment places significant emphasis on the mandatory, not directory, nature of the procedure outlined in Section 187(3) of the BNSS. The Court noted that if the prosecution discovers new material during the investigation that points to additional or more serious offences, it cannot unilaterally extend the remand period. The correct and mandatory procedure requires the following steps:

Notice to the Accused: The prosecution must issue a notice to the accused, informing them of the new findings and the intent to seek an extension of remand.

• Opportunity of Hearing: The accused must be given an opportunity to be heard by the court before any decision on extending the remand is made.
• Reasoned and Speaking Order: The Magistrate or Judge must apply their judicial mind to the facts and pass a speaking and reasoned order that clearly justifies the extension of detention.

The Court highlight the purpose behind this procedural safeguard, stating:

“This procedure is rather mandatory… in relation to the additional offences based on new material gathered during the investigation, such due procedure safeguards the rights of the accused and ensures judicial control over the detention or the custody of the accused persons.”

By simply marking the application as "seen," the Magistrate had abdicated this crucial judicial responsibility, reducing the process to a mechanical exercise and rendering the subsequent detention illegal.

Legal Implications and Impact on Criminal Jurisprudence

This ruling from the Bombay High Court is poised to have a far-reaching impact on the application of the new criminal codes across the country.

1. Reinforcing Liberty as the Norm: The judgment reiterates the fundamental principle that liberty is the norm and detention is the exception. It places a heavy onus on both the prosecution and the judiciary to justify every single day of an individual's pre-trial detention.

2. Clarity on BNSS Procedures: As one of the early authoritative interpretations of the BNSS, this decision provides much-needed clarity on the non-negotiable procedures for remand extension. It serves as a clear guideline for Magistrates and Sessions Courts, warning against perfunctory or administrative handling of remand applications.

3. Strengthening the Right to Default Bail: The Court's powerful declaration that "any slightest departure from the statutory mandate has the impact of impairing the constitutional right of liberty... thereby creating an indefeasible right... to claim default bail" strengthens the hands of the accused. It clarifies that a procedural lapse by the prosecution or the court directly triggers this statutory right, which cannot be subsequently defeated.

4. A Check on Prosecutorial Overreach: The ruling acts as a vital check on the potential for prosecutorial misuse of adding more serious charges at the last minute solely to extend the investigation period and deny bail. The requirement of a hearing and a reasoned order ensures that such additions are scrutinized by the court for their bona fides.

The Verdict

In light of its findings, the Bombay High Court held that the failure to provide a hearing and pass a reasoned order vitiated the entire process of extending the petitioners' remand. Their continued detention beyond the 60-day period was deemed illegal.

Consequently, the Court set aside the Sessions Court's order of 9 September 2025, which had denied bail. The writ petition was allowed, and the Court directed that the petitioners be released on default bail, subject to furnishing surety. This judgment stands as a powerful testament to the judiciary's role as the guardian of individual liberty and a strict enforcer of procedural due process, especially in the nascent stages of a new legal framework.