In a significant legal development that underscores the transition from the old criminal laws to the new regime, the Gujarat High Court recently declared the police remand of an accused under the Bharatiya Nagarik Suraksha Sanhita (BNSS) as illegal. The court’s decision came while hearing a Habeas Corpus petition, highlighting critical procedural lapses that occurred during the switch from the Code of Criminal Procedure (CrPC) to the BNSS.

The ruling serves as a vital reminder to investigative agencies and the lower judiciary about the "Repeal and Savings" provisions, ensuring that the rights of the accused are not compromised during the implementation of India's new criminal laws.

The case revolves around a petition filed by the father of two individuals, Vipul Tiwari and Pratik Tiwari. The petitioners approached the High Court with a Writ of Habeas Corpus, a powerful legal tool used to protect individuals against illegal detention. They contended that their sons were being held in custody without proper legal authority, rendering their detention "illegal."

The core of the dispute lay in how the police handled the investigation and remand process. The FIR in the matter was registered in September 2024 for various offences under the Bharatiya Nyaya Sanhita (BNS) including sections related to assault and criminal conspiracy. While the investigation was ongoing, the police sought and obtained remand under the provisions of the BNSS, which replaced the CrPC on July 1, 2024.

The primary question before the Gujarat High Court was whether the police could apply for and obtain remand under the new BNSS for an investigation that effectively "kicked in" or related to an FIR where proceedings were governed by the timing of the transition.

Section 531 of the BNSS acts as the "Repeal and Savings" clause. It states that while the CrPC is repealed, any investigation, inquiry, or proceeding pending before July 1, 2024, should continue under the old Code (CrPC). However, the confusion often arises in cases where the crime was committed before the cutoff but the FIR or specific applications (like remand) are filed after the cutoff.

In this specific instance, the court noted that the mechanical application of the new law to a situation that required adherence to the old procedural safeguards resulted in a "lack of jurisdiction" for the remand order.

The High Court observed that a Habeas Corpus petition is maintainable even against a judicial order of remand if that order is passed in a "wholly mechanical manner" or suffers from a "total lack of jurisdiction."

Procedural Overreach: The court found that the authorities jumped to the provisions of the BNSS without properly evaluating whether the CrPC should have governed the specific stage of the proceeding.
Mechanical Orders: The Bench emphasized that Magistrates must not act as mere "rubber stamps" for police requests. Every remand order must be backed by a clear application of mind regarding which law applies.
Jurisdictional Error: Because the remand was granted under a provision that the court deemed inapplicable to the specific timeline of this case's "pending" status, the resulting custody was declared unauthorized by law.

Usually, a person cannot file a Habeas Corpus petition if they are in custody pursuant to a judicial order (like a remand order). However, the Gujarat High Court reiterated a landmark exception: if the order itself is "patently illegal" or passed by a court that had no power to pass it under that specific statute, the High Court can intervene to set the person at liberty.

The court's intervention in this case highlights that the "sanctity of a judicial order" does not protect it from scrutiny if it violates the fundamental rights of the accused or bypasses the mandatory "Repeal and Savings" protections of the new law.

This judgment is one of the first major instances where a High Court has scrutinized the "clash" between BNSS and CrPC in the context of physical liberty. It sends a clear message to:

Investigating Officers: They must be precise about which procedural code (CrPC or BNSS) applies to their specific case based on the date of the FIR and the status of the investigation.
Magistrates: There is an "onerous duty" to check the legality of remand reports. A mistake in choosing the statute can lead to the entire detention being declared void.
Legal Practitioners: It opens up a vital avenue for challenging "mechanical" remand orders using the Writ of Habeas Corpus, especially during this transitional phase of Indian criminal law.

The Gujarat High Court’s ruling in the Tiwari case is a landmark in the evolving jurisprudence of the BNSS. By declaring the remand illegal, the court has upheld the principle that "procedure established by law" must be followed strictly, especially when the state seeks to deprive a citizen of their liberty. As India continues to navigate the complexities of its new legal framework, this judgment will serve as a guiding light for ensuring that the transition is smooth, legal, and above all, just.