Section 346 BNSS | Remand Warrant Mandatory After Taking Cognizance; Continued Detention Illegal If Magistrate Adjourns Without Specific Remand Order: Bombay High Court

"The custody of the Petitioners is without any authorization by the learned Magistrate as he has not taken cognizance and has not passed subsequent remand orders." Bombay High Court, in a significant ruling dated October 21, 2026, held that the continued detention of an accused without an order taking cognizance and without issuing a specific warrant of remand under Section 346 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is completely unauthorized and illegal.

A division bench comprising Justice Sarang V. Kotwal and Justice Ranjitsinha Raja Bhonsale observed that "the detention of the Petitioners in jail is without any authorization by a competent Court and, hence, their detention is illegal," holding that mere mechanical recording of next dates in the court roznama cannot substitute a judicial remand order.

The petitioners were arrested by the Central Bureau of Investigation in August 2025 for allegedly running an international cyber fraud racket via a fake call centre targeting foreign nationals, with the FIR initially invoking the Bharatiya Nyaya Sanhita, Information Technology Act, Telecommunications Act, and Prevention of Corruption Act (PC Act). However, the CBI filed its charge-sheet before the Special CBI Court at Pune omitting all PC Act offences as no public servant was charge-sheeted. Realizing it lacked jurisdiction to try non-PC Act offences, the Special Judge transferred the case under Section 361 BNSS to the Judicial Magistrate First Class (JMFC), Igatpuri, for taking cognizance and trial. Challenging their continued incarceration without any formal order of cognizance or remand warrants by the transferee Magistrate, the petitioners approached the High Court seeking release from unlawful detention.

The primary question before the court was whether the continued judicial custody of the accused was lawful when the Special Court lacked jurisdiction to take cognizance and the transferee Magistrate had failed to take cognizance or issue any remand warrants. The court was also called upon to determine whether mere video conferencing production and adjournment entries in the roznama satisfied the statutory requirements of remanding an accused under Section 346(2) of the BNSS.

Special Court Divested Of Jurisdiction Once PC Act Offences Are Omitted

Addressing the initial remand proceedings, the bench observed that the Special Judge under the PC Act derived authority solely from Sections 3 and 4 of the PC Act. Relying on the Supreme Court ruling in State through CBI v. Jitender Kumar Singh, the court observed that trying a PC offence is a jurisdictional fact required to try connected non-PC offences.

Once the investigating agency submitted a charge-sheet that dropped all PC Act offences and charge-sheeted no public servants, the Special Court was completely stripped of its jurisdiction. The bench noted that the Special Judge rightly recognized his lack of jurisdiction to take cognizance under Section 361 BNSS and transferred the case to the JMFC, Igatpuri, specifically "for taking cognizance/trial in accordance with law."

Cognizance Is A Condition Precedent For Valid Trial And Remand

The court analyzed the fundamental doctrine governing the assumption of judicial jurisdiction over an offence. Referring to the Supreme Court's decisions in S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and Kallu Nat alias Mayank Kumar Nagar v. State of U.P., the bench emphasized that taking cognizance requires a conscious application of mind to initiate proceedings.

The judges noted that taking cognizance constitutes an indispensable starting point for any criminal trial. In the present case, the JMFC at Igatpuri simply adjourned the case from time to time as if the trial was already underway, without ever applying his mind to the police report to judicially initiate proceedings against the accused.

"Taking of cognizance is thus, a sine qua non or condition precedent for holding a valid trial."

Interlocutory Orders Do Not Constitute Taking Of Cognizance

Rejecting the CBI's contention that orders allowing custodial interrogation or granting permission for further investigation under Section 193(9) BNSS implied cognizance, the bench clarified the legal scope of judicial application of mind. The bench held that those orders were passed in a completely distinct context and could not meet the criteria of taking cognizance.

The court reiterated the principles laid down in State of Gujarat v. Afroz Mohammed Hasanfatta, noting that while a Magistrate is not required to record elaborate reasons at the stage of issuing summons on a police report, there must still exist a definitive judicial order indicating subjective satisfaction and process issuance under Section 227 of the BNSS.

Adjournment In Roznama Cannot Substitute A Warrant Of Remand

Scrutinizing the records submitted by the Magistrate, the High Court observed a glaring procedural illegality in how custody was maintained. The roznama simply recorded the routine appearances through video conferencing and noted the next scheduled dates, devoid of any judicial direction remanding the accused back to prison.

The bench emphasized that Section 346(2) of the BNSS mandates that if the court postpones or adjourns an inquiry or trial after taking cognizance, it "may by a warrant remand the accused if in custody." The Magistrate had failed to issue any warrant or authorization to the Jail Superintendent of the Nashik Road Central Prison to lawfully retain the accused.

"This is not a case where the remand orders are invalid, but this is a case where the learned Magistrate has not taken cognizance and then has not passed the remand orders."

Existing Custody Does Not Dispense With The Need For A Remand Order

The bench rejected the prosecution's interpretation of the Gujarat High Court's ruling in Vinodbhai Tilakdhari Tiwari v. State of Gujarat. The CBI had argued that once an accused is already in custody, no fresh timeline or formal remand order is required upon adjournment.

The High Court clarified that Vinodbhai Tiwari pertained solely to the outer timeline limit of 15 days and affirmed that even if an accused is already in custody, the court is strictly required to remand them once again by issuing a warrant. A court cannot dispense with the mandatory requirement of passing an authorized remand order merely because the accused was previously lodged in jail.

Duties Of Prosecutors And Jail Superintendents Outlined

Before concluding, the court sounded a note of caution regarding custodial accountability within the criminal justice machinery. The bench stressed that prosecutors, investigating agencies, and jail superintendents bear a proactive legal duty to verify detention mandates.

The bench held that these stakeholders must explicitly alert the concerned court if an accused is being detained without an operative remand order, ensuring that no individual's personal liberty is curtailed without valid judicial sanction.

"It is the duty of the prosecutors, investigating and prosecuting agencies and even the Jail Superintendents to point out to the Court taking cognizance, if there is no remand order from the Court to continue detention of the accused who is already in custody."

Declaring the continued detention of the petitioners completely illegal for want of cognizance and remand warrants under Section 346 BNSS, the High Court ordered their release on bail subject to furnishing PR bonds of Rs. 1 lakh each with conditions. The court, however, clarified that given the seriousness of the cyber fraud allegations, the investigating agency retains the liberty to rearrest the petitioners if found necessary by adhering strictly to the due procedure established by law.

Date of Decision: 21 October 2026