S.P.Ramesh Kumar vs The Union of India
- Court
- Madras High Court
Crl.O.P(MD) Nos. 20517, 21736, 22253 and 22762 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 30.09.2026 - Crl.OP(MD)Nos. 20517, 21736 and
22253 of 2026
Reserved On : 01.10.2026 - Crl.OP(MD)No.22762 of 2026
Delivered On: 04.11.2026
CORAM
THE HON'BLE DR. JUSTICE P. MURUGAN
Crl.O.P(MD) No. 20517 of 2026
Case
{CNR: HCMD011314252026}
QR
and
Crl.M.P(MD) No. 19508 of 2026
Crl.O.P(MD) No. 21736 of 2026
{CNR: HCMD011348562026}
Case QR
and
Crl.M.P(MD) No. 20704 of 2026
Crl. O.P(MD) No. 22253 of
2026
{CNR: HCMD011385572026}
Case
QR
and
Crl.M.P(MD) No. 21175 of 2026
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Crl.O.P(MD) Nos. 20517, 21736, 22253 and 22762 of 2026
Crl.O.P(MD) No. 22762 of 2026
Case
{CNR: HCMD011430372026}
QR
and
Crl.M.P(MD) No. 21654 of 2026
Crl.O.P(MD) No. 20517 of 2026:
S.P.Ramesh Kumar,
S/o Periyakaruppan,
1-165 East Street,
Viraganur, Madurai.
Confined in Central Prison,
Madurai. ... Petitioner/A8
Vs.
1. The Union of India,
Rep. by The Deputy Superintendent of Police,
CBI SC III,
New Delhi.
(RC-08(S)/2025/CBI/SC-III/New Delhi)
2. S.Raja,
S/o R.Sekar,
Malavarayanenthal Colony,
Thiruppacheri Post,
Manamadurai Taluk,
Sivagangai District.
3. A.Ananth,
S/o K.Adiyaraja,
T.N.Thiruppacheti Post,
Manamadurai Taluk,
Sivagangai.
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4. S.Sankaramanikandan,
S/o.M.Samayan,
Nethaji Street,
SIPCOT, Manamadurai Taluk,
Sivagangai.
5. G.Prabhu,
S/o.M.Ganeshan,
No.3/66 Pudupatti,
Poovanthi, Thiruppuvanam Taluk,
Sivagangai District.
6. G.Kannan,
S/o.K.Guruswamy,
Quarter No.7, A-Block,
Thiruppuvanam Police Quarters,
Sivagangai District.
7. P.Ramachandran,
S/o.Pandiyan,
No.1/230 Kalimangalam,
Kunnathur,
Madurai District.
8. N.Shanmugasundaram,
S/o Natarajan,
68 F12, Ayyan Thottam,
Kumarapalayam,
Namakkal District.
9. Siva Kumar,
S/o.Subbiah,
No.6/168, Village Villiyarendal,
National Highway Rameshwaram - Madurai,
Thiruppuvanam Post,
Sivagangai District.
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10. Ilayaraja,
S/o.Ganesan,
No.1/230 Kalimangalam,
Kunnathur,
Madurai District.
(Petition against R2 to R10 withdrawn by the petitioner
on 15.09.2026)
11. Naveen Kumar,
S/o. Balaguru,
Door No. 168, Middle Street (Nadar Street),
Madapuram,
Thiruppuvanam Taluk,
Sivagangai District.
(R11 is impleaded as per order of the Court
dated 24.09.2026 in Crl.MP(MD).20363 of 2026
in Crl.O.P(MD).20517 of 2026 by PMNJ)
... Respondents
Prayer: This Criminal Original Petition is filed under section 528 of
BNSS, to call for the records relating to the order dated 10.09.2026
made in S.C.No.709 of 2025 on the file of the V Additional Sessions
Judge, Madurai, and to set aside the same insofar as remand of the
petitioner is concerned.
For Petitioner : Mr.R.Gandhi, Senior Advocate
for Mr.A.Balaji
For Respondents : Mr.N.Mohideen Basha
Special Public Prosecutor for CBI
for R1
: Mrs.Nithya Ramakrishnan
Senior Advocate, Assisted by
Mr.Henry Patrick Triphange for R11
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Crl.O.P.(MD)No.21736 of 2026:
S.Sivakumar,
S/o. Subbaiah,
6/168, Fourway Track,
Villiyarendal,
Ladanendal,
Sivagangai District - 630 611. ... Petitioner / A9
Vs
The Deputy Superintendent of Police,
Special Crime - III Branch,
Central Bureau of Investigation (CBI),
New Delhi.
(Crime No. RC-08(S)/2025/CBI/SC-III/New Delhi)
... Respondent
For Petitioner : Mr.T.Lajapathy Roy, Senior Advocate
M/s Roy and Roy Associates
For Respondents : Mr.N.Mohideen Basha
Special Public Prosecutor for CBI
Prayer: This Criminal Original Petition is filed under section 528 of
BNSS, to call for records pertaining to the order of remand in
S.C.No. 709 of 2025 dated 10.09.2026 on the file of the V
Additional Sessions Judge, Madurai District in Crime No.
RC08(S)/2025/CBI/SC-III/New Delhi on the file of the respondent
and to set aside the same as illegal as against the petitioner alone.
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Crl.O.P(MD) No. 22253 of 2026:
N.Shanmugasundaram,
S/o Late Natarajan,
Deputy Superintendent of Police (under suspension),
68F/ 12, Ayyan Thottam,
Pallipalayam Road,
Kumarapalayam Taluk,
Namakkal District 638 183.
Presently confined as a remand prisoner
at Central Prison,
Madurai. ... Petitioner /A7
Vs.
The State of Tamilnadu,
Rep. by Special Crime -III Branch,
Central Bureau of Investigation (CBI)
New Delhi.
(FIR No. RC-08(S)/2025/CBI/SC-III/New Delhi)
... Respondent
For Petitioner : Mr.S.Chellapandian
Senior Advocate
For M/s. S. Bageerathan
For Respondent : Mr.N. Mohideen Basha
Special Pubic Prosecutor for CBI
Prayer: This Criminal Original Petition is filed under section 528 of
BNSS, to call for the records relating to the order dated 10.09.2026
made in S.C.No. 709 of 2025 on the file of the V Additional
Sessions Court, Madurai and to set aside the same with any
condition imposed by the Court in so far the remand of the
th
petitioner, the 7 accused is concerned and to direct his release
forthwith.
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Crl.O.P(MD) No. 22762 of 2026:
G.Ilayaraja,
S/o Ganesan,
No.1/230, Kalimangalam,
Kunnathur,
Madurai 625 020. ... Petitioner /A10
Vs.
The State,
Rep. by, Special Crime-III Branch,
Central Bureau of Investigation (CBI),
New Delhi.
(Crime No.RC-08(S)/2025/CBI/SC-III/New Delhi)
... Respondent
For Petitioner : Mr.A.Raja
For Mr.C.M. Arumugam
For Respondent : Mr.N.Mohideen Basha
Special Public Prosecutor for CBI Cases
Prayer: This Criminal Original Petition is filed under section 528 of
BNSS, to call for the records pertaining to the order of remand in
SC.No.709 of 2025 dated 10.09.2026 on the file of the V Additional
Sessions Judge, Madurai District in Crime No.RC- 08(S)/ 2025/
CBI/SC-III/New Delhi on the file of the respondent and to set aside
the same as illegal as against the petitioner / A10.
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C O M M O N O R D E R
The Accused Nos. 7 to 10 in S.C.No.709 of 2025 on the file of
the V Additional Sessions Judge, Madurai District, have filed these
four petitions separately through separate counsel by A8, A9, A7
and A10 respectively, challenging the remand order dated
10.09.2026 passed by the said Judge.
2. Though different counsels argued the case by touching
upon the remand order is not valid, at the convenient of the Court as
well as to avoid repetition this Court is of a view that a common
order is to be passed in all four cases. Accordingly, this common
order.
3. The brief facts to dispose of these cases are as that on
27.06.2025, one Nikkitha and her aged mother Sivagami visited
Pathrakali Amman Temple at Madappuram. The deceased Ajith
Kumar in S.C.No.709 of 2025 was working as security guard in the
said temple. The said Nikkitha made a complaint against the said
Ajith Kumar stating that 9.5 sovereigns of gold jewels and
Rs.2,500/- missing from her car and having suspect over the
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deceased Ajith Kumar. The said Ajith Kumar was brought to
Tiruppuvanam Police Station in connection with the enquiry. As per
the prosecution case, a special crime team consisting of Al to A6
was functioning under the Deputy Superintendent of Police,
Manamadurai Sub-Division. The said special team detained the said
Ajith Kumar in connection with the alleged theft of gold jewels and
cash from the car of Nikkitha. During the course of investigation, the
police officials belonging to the special team assaulted the said Ajith
Kumar and as a result of which, he sustained injuries and
subsequently died.
4. In this regard, initially, a case in Crime No.303 of 2025
was registered at Tiruppuvanam Police Station. Thereafter, the
investigation was transferred to the CBI pursuant to the direction
issued by the Division Bench of this Court and followed that the
Government Order issued by the Government of Tamil Nadu. After
the CBI taken over the investigation, it conducted investigation and
filed a police report against six accused persons A1 to A6. The
Chief Judicial Magistrate, Madurai, which is the Court to take
cognizance in P.R.C, as the CBI investigated the case, committed the
case to the Sessions Court, Madurai. That Court after assigning the
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case number in S.C.No.709 of 2025, made over to V Additional
Sessions Judge, Madurai for disposal.
5. As per the further direction of the Division Bench of this
Court, the CBI filed a supplementary charge sheet before the Chief
Judicial Magistrate, Madurai, against the other accused, i.e. A7 to
A10. However, in the initial investigation, the CBI arrested the
original accused A1 to A6 and remanded them to judicial custody.
Since the CBI has not arrested A7 to A10, during the further
investigation and the same has been noted in the supplementary
charge sheet that no arrest was made as far as A7 to A10 when the
supplementary charge sheet was filed before the Chief Judicial
Magistrate. Having the Chief Judicial Magistrate, Madurai,
summoned the appearance of A7 to A10, they appeared before the
Chief Judicial Magistrate, Madurai. Pursuant to the direction of the
Chief Judicial Magistrate, A7 to A10 executed a bond under section
91 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short
‘BNSS’) and furnished substantial sureties.
6. Apprehending that the committal Court may remand or
the CBI might seek their remand, A7 to A10 moved separate
anticipatory bail petitions before this Court in Crl.O.P.(MD)
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Nos. 5406, 4859, 5191 and 5192 of 2026, respectively, through
separate counsels. All the petitions were disposed by a common
order dated 15.06.2026 holding that, having A7 to A10 had executed
bond under section 91 of BNSS and the committal Court also
accepted their bonds and the case is in the committal stage to the
Sessions Court as far as A7 to A10 are concerned their anticipatory
bail petitions were dismissed and directed the Chief Judicial
Magistrate, Madurai, not to remand A7 to A10 to custody while
committing the case to the Sessions Court.
7. The case against A7 to A10 as per the supplementary
charge sheet and offence therein are under sections 61(2) r/w 127(2),
238 and 337 of BNS. Thereafter, the case against A7 to A10 were
committed to the Sessions Judge, Madurai and subsequently, that
case was made over to the V Additional Sessions Judge, Madurai.
After issuance of summons by the V Additional Sessions Judge, A7
to A10 appeared and they appointed counsels and the counsels filed
vakalats. A7 to A10 continued to appear before the V Additional
Sessions Judge, Madurai, (herein after referred as 'Sessions Court or
trial Court') on 29.07.2026, 05.08.2026, 13.08.2026, 21.08.2026,
24.08.2026, 03.09.2026, 09.09.2026 and 10.09.2026. On 10.09.2026,
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the trial Court framed charges against all the ten accused.
8. As per the initial police report, the case was registered
against A1 to A6 with the major offence of murder under section
103(1) of BNS, in addition to other offences. As far as the
supplementary charge sheet is concerned as against A7 to A10, there
was no charge under section 103(1) of BNS in the aid of criminal
conspiracy or common intention or abetment. However, the trial
Court inter alia framed charges against A7 under sections 140(1) r/w
49, 103(1) r/w 49, 120(2) r/w 49, 127(8) r/w 49, 61(2) r/w 238 r/w
103(1), 256 r/w 49, 337 r/w 49 of BNS; against A8 under sections
140(1) r/w 49, 103(1) r/w 49, 120(2) r/w 49, 127(8) r/w 49, 61(2)
r/w 238 r/w 103(1),238 r/w. 103(1), 256 r/w 49, 337 r/w 49, 235 r/w
3(5) of BNS; against A9 under sections 140 (1) r/w 49, 103(1) r/w
49, 120(2) r/w 49, 127(8) r/w 49, 61(2) r/w 238 r/w 103(1), 238 r/w
103(1), 256 r/w 49, 227, 337 r/w 49 of BNS; and against A10 under
sections 140 (1) r/w 49, 103(1) r/w 49, 120(2) r/w 49, 127(8) r/w 49,
61(2) r/w 238 r/w 103(1), 238 r/w 103(1), 256 r/w 49, 238 r/w 103
(1), 256 r/w 49, 237 of BNS. After framing charges against all the
accused, i.e. A1 to A10, and questioning them, all the accused
pleaded not guilty and claimed to be tried.
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9. After framing the charges and questioning the accused,
the trial Court extended the remand of A1 to A6 and remanded A7 to
A10, to the judicial custody, who had already executed bonds under
section 91 of the BNSS. The remand of A7 to A10 to the judicial
custody by the trial Court under section 346(1) of BNSS is not
correct, which is illegal, thereby, A7 to 10 have comeup before this
Court under section 528 of BNSS, to set aside the said remand order
as far as A7 to A10 are concerned by separate petitions.
Crl.O.P.(MD)No.20517 of 2026:
10. The important grounds raised are as follows:
(i) The Sessions Judge is not correct in exercising the power
vested under section 346 of BNSS, remanding the petitioner to
judicial custody, wherein the petitioner was not in custody at the
time of passing the impugned order.
(ii) As per the decision of the Hon’ble Supreme Court of India
in Satender Kumar Antil v. Central Bureau of Investigation &Anr ,
(2022) 10 SCC 51, the petitioner need not to file a separate
application for bail. The remand order on the ground that no separate
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bail application had been filed is contrary to the principles laid down
by the Hon’ble Supreme Court.
(iii) The Sessions Judge’s remand order is on the strength of
omni bus allegation without there being any specific allegation made
against the petitioner warranting his custodial detention. The
Sessions Judge is not correct in interpreting the order passed in
Crl.O.P.(MD) Nos. 5406, 4859, 5191 and 5192 of 2026, by stating
that the said order is applicable only to the Chief Judicial Magistrate
and not to the Sessions Court. The reasons assigned by the Sessions
Judge that the petitioner would tamper the witnesses are
unstantainable in law, p articularly, when none of the prosecution
witnesses has spoken anything about the role played by the
petitioner. The Sessions Judge failed to appreciate that the
investigation agency did not arrest the petitioner during the course of
investigation and having no requirement of custodial interrogation
and i n the absence of any subsequent developments demonstrating
the necessity for custodial interrogation, the remand of the accused
is unjustified.
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(iv) The Sessions Judge ought to have seen that the petitioner
voluntarily appeared before the Court pursuant to summons,
executed a bond under section 91 of BNSS with sureties and
thereafter regularly appeared before the Court and there is no
apprehension of law absconding or evading the process of law.
(v) The Sessions Judge placed reliance upon the bail rejection
order dated 28.08.2026 of this Court passed in the case of
A6/Ramachandran without appreciating that the question of custody
has to be determined on the individual facts and circumstances of
each accused. The said order cannot be authorising automatic
incarceration of the petitioner.
(vi) The Sessions Judge failed to strike the necessary balance
between the seriousness of the allegations and the petitioner's
fundamental right to personal liberty guaranteed under Article 21 of
the Constitution of India.
Crl.O.P.(MD)No.21736 of 2026:
11. The important grounds raised are as follows:
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(i) The trial Court failed to follow the protective bond already
executed in compliance with order of this Court in Crl.O.P.(MD)No.
5191 of 2026 batch, dated 15.06.2026;
(ii) The remand of the petitioner/A9, who holds valid
protection given by this Court is amounting to miscarriage of justice
and illegal confinement;
(iii) The remand order of the petitioner/A9 without any
specific complaints against regarding influencing witnesses or
tampering by the petitioner / A9;
(iv) The other grounds are questioning the validity of the
charge framing, for which there is no prayer in the petition and
therefore, those grounds are not referred to be tested in this case.
Crl.O.P.(MD)No.22253 of 2026 :
12. The important grounds raised are as follows:
(i) The trial Court failed to appreciate that the petitioner /A7
already executed a bond under section 91 of BNSS and having the
said bond does not amount to the grant of bail, as per the decision of
the Hon’ble Supreme Court in Tarsem Lal v. Directorate of
Enforcement , (2024) 7 SCC 61, and taking a contrary decision that
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because no bail had been granted and having the petitioner was
never in custody, there was no custody to be continued. The
remand order of the trial Court holding that "he was not on bail" and
because no bail application had been filed on his behalf, is with the
greatest respect contrary to that binding declaration of law;
(ii) The Sessions Judge failed to appreciate the order passed by
this Court dated 28.08.2026 in Crl.O.P.(MD) No. 15373 of 2026,
that if charges punishable with imprisonment for more than seven
years were framed against A7 to A10, the case would fall under
Category B of the classification in Satender Kumar Antil (supra) ,
that the bond under section 91 of BNSS could not be treated as
orders granting bail, and that they would be required to seek bail
before the competent Court, which shall consider their applications
on their own merits. The said observation preserves the jurisdiction
of the Sessions Court to consider a bail application on its merits
when one is made. It does not authorise the taking into custody of an
accused, who has made no application and who was never arrested,
and it does not dispense with the requirement, laid down in Tarsem
Lal (supra);
(iii) The decision of the Hon'ble Supreme Court in Satender
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Kumar Antil (supra) has held at paragraph 89 that "it is only in a
case where the accused is either not arrested consciously by the
prosecution or arrested and enlarged on bail, there is no need for
further arrest at the instance of the Court". The petitioner is squarely
within the first limb and the investigation agency consciously
refrained from arresting throughout.
Crl.O.P.(MD)No.22762 of 2026 :
13. The important grounds raised are as follows:
(i) The impugned order suffers from non application of mind
insofar as it does not sufficiently distinguish between the
petitioner/A10’s alleged role and the alleged role of Al to A6 in the
actual custodial occurrence;
(ii) The trial Court failed to follow the protective bond already
executed under section 91 of BNSS in compliance of the order in
Crl.O.P.(MD)No.5192 of 2026 batch, dated 15.06.2026. Once it was
decided by this Court and thereby, the arrest of the petitioner was
precluded by the aforesaid order, he cannot be placed under custody
by the trial Court, since the petitioner executed a bond under section
2 (e) of BNSS;
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(iii) The trial Court remanding the petitioner/A10, who holds
valid protection given by this Court, is amounting to miscarriage of
justice and illegal confinement;
(iv) The remand order under section 346 of BNSS is totally
illegal, arbitrary, unwarranted, against the facts and circumstances of
the case, hence, the same is liable to be set aside;
(v) The trial Court failed to appreciate the object of the
execution of bail bond and bond are to secure the presence of the
accused for the trial proceedings only. Therefore, without cancelling
the bond executed by the petitioner, no order of remand can be
passed by the trial Court;
(vi) The trial Court order is liable to be set aside for the simple
reason that the trial Court was influenced by the order passed by this
Court in Crl.O.P. (MD). No. 15373 of 2026, since it is a passing
reference only. Thereby, it is nothing but non application of
independent judicial mind and hence such order of remand is totally
illegal;
(viii) The trial Court ought to have considered that without
following the procedure as contemplated under section 492 of BNSS
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no order of remand can be passed unless and until the same is
cancelled, which is bad in law to remand the petitioner. The order of
remand is illegal, since either the investigation officer or any one of
the prosecution witnesses is ever lodged complaint by making
allegation against the petitioner;
(x) The reasons adduced by the trial Court as if police
protection given to the defacto complainant and other important
witnesses was withdrawn is erroneous in law, since no document is
filed by any person to substantiate the said allegation.
14. The brief counter filed by the prosecution agency in
Crl.O.P.(MD)No.20517 of 2026 is also adopted as the counter in all
other three cases and the brief facts are as follows:
14.1. All the Criminal Original Petitions are liable to be
dismissed and all the other allegations contained in the respective
petitions are denied. The impugned order is not an order passed
mechanically of merely because the petitioner did not file any bail
application. The trial Court has recorded specific reasons concerning
the nature and gravity of the allegations, the status of A7 to 10, who
are police personnel, the material witnesses, the apprehension of
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influencing witnesses and the alleged manipulation of police records
and the conduct attributed to the accused persons. The trial Judge
also recorded the rival submissions raised by the learned counsel for
A7 to A10 and by the Public Prosecutor for CBI before passing the
remand order. The protection order given by this Court in
Crl.O.P(MD) Nos. 4859, 5406, 5191 and 5192 of 2026, dated
15.06.2026 is protection given for appearance before the committal
Court alone. Subsequent bail rejection order dated 28.08.2026
passed by this Court in Crl.O.P. (MD) No.15373 of 2026 bail
petition filed by A6 / P. Ramachandran, held that if charges
punishable with imprisonment for more than seven years are framed
against A7 to A10, the bonds executed by them under section 91 of
BNSS cannot be treated as orders granting bail and they required to
seek bail before the competent Court.
14.2. When the Sessions Judge framed charges against A7 to
A10 on 10.09.2026, the legal position was materially different from
that which prevailed when the order dated 15.06.2026 was passed at
the stage of committal. It did not amount to grant of bail to the
petitioners and did not foreclose the jurisdiction of the Sessions
Court to independently consider the question of custody after
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framing of charges.
14.3. The Hon'ble Supreme Court in Satender Kumar Antil
(supra) classified the offence in four categories and in Category 'B'
classified offences punishable with death, imprisonment for life or
imprisonment for more than 7 years and provided that, upon
appearance pursuant to process, the bail application in Category B /
D cases is to be decided on merits. The said judgment does not
support the proposition that an accused falling in Category 'B' is
entitled to remain outside custody without seeking bail.
14.4. The judgment relied upon by the accused in Siddharth
v. State of Uttar Pradesh (2022) 1 SCC 676 and Musheer Alam v.
State of Uttar Pradesh, 2025 SCC OnLine SC 116 do not lay down
that an accused who was not arrested during investigation acquires
an absolute right to remain at liberty irrespective of subsequent
developments in the judicial proceedings. The cases in hands stand
on a materially different footing inasmuch as the competent Sessions
Court has, after hearing the accused and upon considering the
material on record, framed charges including offences carrying
capital punishment exceeding 7 years and thereafter independently
considered the question of custody.
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14.5. The citation referred by the accused in Tarsem Lal
(supra) as it makes a clear distinction between a bond for
appearance and bail. A bond furnished for securing appearance
pursuant to summons does not amount to grant of bail. The
petitioners were never granted regular bail pursuant to section 91 of
BNSS bond. The order dated 15.06.2026 itself treated the bond as
sufficient for appearance at the committal stage; it did not grant bail.
The question arising after framing of charges was, therefore, one of
custody/bail on merits and not cancellation of an existing regular
bail order.
14.6. On considering the materials placed by the prosecution,
the trial Judge appreciated and framed charges for major offences
and thereby, the present proceedings before this Court cannot be
converted into a mini trial on the evidentiary merits of the
prosecution case. The other allegations and the facts referred in all
the petitions are devoid of merits and the Sessions Judge is required
to remand the accused after framing of charges, in terms of the
principles laid down by the Hon’ble Supreme Court in Satender
Kumar Antil (supra). Therefore, all the Criminal Original Petitions
are liable to be dismissed.
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15. The defacto complainant Mr.Naveen Kumar filed an
intervening application in Crl.M.P.(MD)No.20363 of 2026 in
Crl.O.P.(MD)No.20571 of 2026 with a prayer to allow the
intervening petition and dismiss the petition filed by the accused.
The said application was allowed by an order dated 24.09.2026.
16. The brief facts set out in the affidavit of the intervenor,
Mr. Naveen Kumar, narrates the nature of the case. However, his
concern is only with the remand order under consideration, namely,
whether the remand order is right or wrong. Therefore, the
intervenor is required to confine his challenge to the remand order
alone, and brief facts are thus:-
16 (i). The trial Court in its remand order dated
10.09.2026 specifically recorded removing of witness protection and
thereby A7 to A10 were taken into custody, otherwise a fair trial
cannot be ensured. The challenge by the accused against the remand
order dated 10.09.2026 is legally frivolous, contumacious, and
barred by the doctrine of coordinate bench judicial discipline. The
contention was rejected by this Court, by an order dated 28.08.2026
in Crl.OP(MD) No. 15373 of 2026, where the bail petition filed by
A6 / Ramachandran.
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16 (ii). The charge against the petitioners where there is a
maximum sentence of death or imprisonment of life and the case
facts under the Category B of Satender Kumar Antil (supra) thereby
bond executed under section 91 of BNSS cannot be treated as bail
and the remand order of the trial Judge is correct. Having the
accused never applied for regular bail, thereby, the petitions are not
at all made out and are liable to be dismissed.
17. While the argument was taken place all the counsels in
the cases submitted that once the defacto complainant intervened in
one of the criminal original petitions, the same facts may be taken
into consideration in all the criminal original petitions. Thereby, no
separate application filed by the defacto complainant and one
application is enough to consider the cases on merits.
18. This Court heard Mr.R.Gandhi, learned Senior Advocate,
for A8, Mr.T.Lajapathy Roy, learned Senior Advocate for A9,
Mr.S.Chellapandian, learned Senior Advocate, for A7, Mr.A.Raja,
learned counsel for A10. As far as the prosecution is concerned
Mr.N.Mohideen Basha, learned Special Public Prosecutor for CBI
argued the case. The defacto complainant , who is the brother of the
th
deceased Ajithkumar, has been added as the 11 respondent in a lead
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case in Crl.O.P.(MD)No.20517 of 2026 and Mrs.Nithya
Ramakrishnan, learned Senior Advocate and Mr.Henry Patrick
Triphange, counsel on record argued the case for the defacto
complainant at length. The respective learned Senior Advocates and
Special Public Prosecutor cited various decisions of this Court as
well as the Hon'ble Supreme Court. Their arguments would be
considered in an appropriate places of this order infra permitted the
records. Considered the submission of both sides.
19. The point for consideration is as to whether the remand
order dated 10.09.2026 passed by the trial Court as far as A7 to A10
are concerned illegal and to set aside , thereby enabling them to be
released from prison and face the trial in the Sessions Case?
20. These cases are challenging remand order of A7 to A10
in a custodial death of Ajith Kumar. The challenge in all criminal
original petitions is to set aside the remand order dated 10.09.2026
against A7 to A10 on the ground as per the order of this Court dated
01.07.2025, in Crl.O.P.(MD)Nos.17975, 17976, 17949, 18034 and
18035 of 2025 batch cases, the investigation into the custodial death
of Ajith Kumar was transferred to CBI for investigation. The CBI
investigated the matter and laid a police report against A1 to A6 at
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the first instance. By the subsequent order passed by this Court in
the above referred batch of writ petitions, the CBI investigated the
matter further and a supplementary charge sheet was filed against
A7 to A10 before the Chief Judicial Magistrate, Madurai, which is
the committal Court.
21. It is the case of the petitioners in common that during the
original investigation A1 to A6 were arrested and remanded to
judicial custody initial charge sheet was filed. During the further
investigation, the CBI did not arrest the A7 to A10 and filed a
supplementary charge-sheet before the Chief Judicial Magistrate,
Madurai for the punishment of the offence upto 7 years. The
committal Court, on perusal of the supplementary charge sheet and
having that A7 to A10 were not arrested during the investigation,
issued summons for appearance of A7 to A10.
22. On their appearance, the Chief Judicial Magistrate,
Madurai, obtained bond under section 91 of BNSS, for their future
appearance. When the accused A7 to A10 have been appearing
before the Chief Judicial Magistrate, Madurai, A7 to A10 filed
separate petitions before this Court in Crl.O.P.(MD)Nos.4859, 5406,
5191 and 5192 of 2026 for anticipatory bail. This Court by a
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common order dated 15.06.2026, all the anticipatory bail
applications were disposed of holding that since A7 to A10 executed
bonds under section 91 of BNSS for their further appearance and the
same were accepted by the committal Court, they need not be
granted anticipatory bail once again.
23. It is the findings of this Court in the above said batch
cases, since A7 to A10 appeared before the committal Court on
summons and subsequently they executed bonds under section 91 of
BNSS for future appearance, it was decided that there was no
requirement of anticipatory bail once again. In the said order,
paragraph Nos. 21 and 22 are reproduced as follows:
21. In view of the above discussions and
the judgments of the Hon'ble Supreme Court
the bonds already executed by the petitioners
before the Committal Court under Section 91 of
BNSS is sufficient for their appearance before
the committal Court and the committal Court
can proceed further for committing the case in
accordance with law.
22. The learned Chief Judicial Magistrate,
Madurai is directed not to remand the
petitioners to custody while committing the
case to the Sessions Court.
24. At the time of passing the said order as per the
supplementary charge sheet, the charges levelled against the
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petitioners herein and the punishment prescribed therein was only
upto 7 years and not beyond that, wherein the alleged offence as per
the supplementary charge in paragraph No.16.16 are under sections
61(2), r/w 127(2), 238 and 337 of BNS – criminal conspiracy, r/w
wrongful confinement, causing the disappearance of evidence or
giving false information to screen an offender and forgery of court
records, public registers, and official government identification
documents. All carries maximum punishment upto 7 years.
25. As per the referred batch cases ordered passed on the
anticipatory bail applications, the Chief Judicial Magistrate,
Madurai, committed the case as against A7 to A10 to the Sessions
Court, Madurai and in turn, supplementary charge sheet was also
made over to the V Additional Sessions Judge, Madurai, in
connection to S.C.No.709 of 2025. The said trial Judge issued
summons to A7 to A10, at this juncture, it is recorded that A1 to A6
are in judicial custody and they have been produced before the trial
Court on remand warrant. Though A7 to A10 have been appeared
before the trial Court on summons issued by the trial Court on
29.07.2026 and engaged Advocates, who filed vakalats, they
continued to appear subsequently on 05.08.2026, 13.08.2026,
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21.08.2026, 24.08.2026, 03.09.2026, 09.09.2026 and 10.09.2026,
based on their bond executed under section 91 of BNSS before the
committal Court of Chief Judicial Magistrate, Madurai.
26. The trial Court framed charges on 10.09.2026 against all
the accused of A1 to A10. Though the direct overt act as per the
initial charge sheet is against A1 to A5, who caused the death of the
deceased Ajith Kumar in a custodial death and A6, who was the
driver, drove the vehicle in which the deceased was taken from
police station to other place, also added as accused who was aiding
the crime, and charges were framed by the trial Court with major
offence of murder under section 103(1) of BNS and other offences.
Though the investigation agency had comeup with the
supplementary charge sheet against A7 to A10, alleging offences
punishable with imprisonment upto 7 years, but, the trial Court after
appreciating the materials on record, while framing the charges
against A7 to A10, framed various charges including the capital
punishment of death for murder offence under section 103(1) r/w 49
of BNS and other offences as mentioned in the preceding para of
this order.
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27. As per the charges framed by the trial Court, by
invoking section 49 of the BNS in relation to the offence of murder
under section 103(1) of the BNS, the accused A7 to A10 have
abetted the custodial death, as prima facie disclosed at the stage of
framing of charges. After framing charges against A7 to A10
including A1 to A6, all the accused denied the charges and claimed
to be tried.
28. The trial Court assigned reason for framing major
charges against A7 to A10, eventhough the prosecution had comeup
with the lesser charges with punishment upto 7 years and taking
note of the orders passed in Crl.O.P.(MD)Nos.4859 of 2026 batch
cases by this Court and the trial Court had come to the conclusion
that the direction issued by this Court in the above batch cases that
the accused shall not be remanded to custody by the Chief Judicial
Magistrate, Madurai, at the stage of committal of the case to the
Sessions Court. The trial Court has come to the conclusion that the
said order is only for the Chief Judicial Magistrate, Madurai, not to
remand and cannot be construed as an order granting bail to A7 to
A10.
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29. The trial Court also referred the decision of the Hon’ble
Supreme Court in Tarsem Lal (supra) , where it was viewed that an
order of the Court accepting bonds under section 88 of Cr.P.C.
(section 91 of BNSS) from the accused does not amount to a grant
of bail. Thereby, the trial Court had come to the conclusion that the
bond executed under section 91 of BNSS does not amount to
granting bail. Moreover, the charges against A7 to A10 framed are
punishable with the imprisonment for a term exceeding 7 years,
which carries maximum punishment of death sentence and it come
under Category B offences as per the decision of the Hon’ble
Supreme Court in Satender Kumar Antil ( supra ). The Hon’ble
Supreme Court in the said Satender Kumar Antil ( supra ) held that
the bail application of an accused in Category B shall be considered
on its own merit.
30. This Court also considered the bail application filed by
A6/ Ramachandran in Crl.O.P.(MD)No.15373 of 2026, in which,
this Court by an order dated 28.08.2026, has observed that in the
event of the trial Court on considering the materials on record,
framed charges against the additional accused, viz., A7 to A10 for
offence punishable with the imprisonment more than 7 years their
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case would fall under Category B as per the decision of the
Satender Kumar Antil ( supra ). In such eventuality, the bonds
executed by them under section 91 of BNSS cannot be treated as
orders granting bail and they would be required to seek bail from the
competent Court.
31. Taking note of the decisions of Satender Kumar Antil
( supra ) and Tarsem Lal ( supra ) and the common order of this
Court, particularly, in anticipatory bail petitions filed by A7 to A10,
in Crl.O.P.(MD)Nos.4859 of 2026 batch cases, dated 15.06.2026
and the bail application filed by A6/Ramachandran in Crl.O.P.
(MD)No.15373 of 2026, dated 28.08.2026, having A7 to A10 have
not availed bail for the Category B offences, as per the Satender
Kumar Antil ( supra ) decision, the trial Court after framing charges,
had remanded A7 to A10 into judicial custody.
32. The learned counsel for A7 to A10, after framing
charges on 10.09.2026 had come to a view that the accused A7 to
A10 though appeared several hearing before the trial Court have not
chosen to file bail application and taking note of the gravity of the
offence, charges have been framed against A7 to A10 the trial Court
decided to remand A7 to A10. The learned counsel for A7 to A10 on
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the date of remand i.e. 10.09.2026 after framing charges, as per the
impugned order in paragraph No.6, stated that the counsel for A7 to
A10 appeared and submitted that they have not filed any bail
application, having executed bond under section 91 of BNSS for
their appearance. They submitted that though the accused were not
on bail, the accused may not be remanded to custody, since they are
regularly appeared before the Court and they would not tamper the
witness. Further argued that the investigation agency has not taken
custody during further investigation and after taking cognizance and
after framing charges, the custody may not be required.
33. The trial Court after hearing the learned Special Public
Prosecutor, in which, he submitted that the nature and gravity of the
allegations, the position held by A7 to A10 and after framing
charges with major punishment, the nature of the occurrence and the
possibility of influencing witnesses and interfering with the fair
conduct of the trial, A7 to A10 are required to be remanded to
judicial custody.
34. Taking note of all the aspects, the trial Judge remanded
A7 to A10 to the judicial custody on 10.09.2026 by invoking section
346 (1) of BNSS. Against the said remand order of A7 to A10, these
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four petitions filed to set aside the remand order and accused may be
set at liberty to face the trial before the V Additional Sessions Court,
Madurai.
35. Mr.R.Gandhi, learned Senior Advocate, appearing for
A8 having touched upon the grounds raised in the petition and
submitted that during further investigation, the investigating agency
did not arrest A8 and on appearance before the Chief Judicial
Magistrate, Madurai, he executed a bond under section 91 of BNSS,
though by apprehending arrest, the accused A7 to A10 filed
anticipatory bail petition before this Court in a batch of cases
referred above and this Court by an order dated 15.06.2026, held
that having section 91 of BNSS bond executed before the committal
Court, no requirement of granting anticipatory bail and thereby
directed the committal Court not to remand A7 to A10, while
committing the case to the Sessions Court. Since this Court
protected the arrest of the accused A7 to A10, they appeared before
the committal Court regularly and the matter was committed to the
Sessions Court. Before the trial Court also on receipt of Court
summons, the accused A8 (A7, A9 and A10 also) appeared before
the trial Court regularly and the Court also adjourned the case in
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some time.
35 (i). He would further submit that though the trial
Court has not directed the accused A7 to A10 for further execution
of section 91 of BNSS bond, the accused felt that earlier execution
of section 91 of BNSS bond before the committal Court is enough
based on the observation of this Court in the batch of anticipatory
bail filed by A7 to A10. Therefore, they continued to appear even
without seeking any bail, that is after surrendering the accused. The
said counsel cited Tarsem Lal (supra) to the aspect having section
91 of BNSS bond executed before the committal Court that is
enough to proceed the case, where the investigating agency did not
arrest the accused during the investigation for interrogation.
35 (ii). He would further submit that though the trial
Court framed the charges with the maximum punishment upto death
sentence, it is not a ground to remand the accused, where they
executed bond under section 91 of BNSS and the same was accepted
by this Court in the anticipatory bail application batch order referred
above, therefore, the remand order of the trial Judge is erroneous.
The decision referred by the said counsel in Tarsem Lal (supra) , in
which it held that where the Enforcement Directorate (ED) has not
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arrested an accused under section 19 of the Prevention of Money
Laundering Act, 2002 (PMLA) before filing the complaint, the
Special Court, upon taking cognizance, should ordinarily issue
summons to secure the accused’s appearance rather than a warrant.
An accused who appears pursuant to summons does not thereby
enter custody and need not apply for bail merely to appear before
the Court. The Special Court may require the accused to execute a
bond under section 88 of the CrPC to ensure attendance, but such a
bond is distinct from bail and is not subject to the twin conditions
under section 45(1) of the PMLA.
35 (iii) . He also relied upon the decision of the Hon’ble
Supreme Court in Satender Kumar Antil (supra) , and submitted that
in which the trial Court misunderstood the Category B classification.
Though Category B offences are punishable with imprisonment for
more than seven years, upon the appearance of the accused before
the Court pursuant to the process issued, the bail application is
required to be decided on its merits. In our case, it is submitted by
the said Senior Advocate that the accused executed bond under
section 91 of BNSS, therefore, there is no need to file bail
application once the charges has been framed even with the
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maximum punishment.
35 (iv). In Satender Kumar Antil (supra) laid down a
graded procedure for dealing with accused persons who were not
arrested during investigation and co-operated with the investigating
agency. For offences punishable with imprisonment of seven years
or less falling within Category A, the court should ordinarily issue
summons first, followed, if necessary, by a bailable warrant and
thereafter a non-bailable warrant, while permitting bail to be
considered without insisting on physical custody. Category B,
involving offences punishable with death sentence, imprisonment
for life or imprisonment exceeding seven years, and Category D,
involving economic offences not governed by special enactments,
require consideration on their individual merits. Category C,
involving special enactments with stringent bail conditions, remains
subject to the applicable statutory restrictions.
35 (v). The said Senior Advocate also referred in a case of
Siddharth v. State of Uttar Pradesh & Anr , (2022) 1 SCC 676, in
which it held that custody in section 170 of Cr.P.C does not
necessarily mean police official custody, but, refers to presenting the
accused before the Court. Where the accused has co-operated with
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the investigation and the investigating officer has no reason to
believe that the accused will abscond or disobey summons, the
accused need not be arrested merely to enable the filing of the
charge-sheet. The expression “custody” in section 170 of CrPC does
not necessarily mean police or judicial custody but refers to
presenting the accused before the court. The Court emphasised that
personal liberty is an important aspect of Article 21 of the
Constitution and that the mere existence of the power to arrest does
not justify its routine exercise.
35 (vi). The said Senior Advocate also referred in
Musheer Alam v. State of Uttar Pradesh & Anr , 2025 SCC OnLine
SC 116 to hold that the investigation officer having not arrested the
accused during the investigation, and the accused should be directed
to appear before the trial Court and furnish bail to its satisfaction
rather than being subjected to a formal arrest after completion of the
investigation. Further held that where the investigation is complete,
the charge-sheet has been filed, the trial court has taken cognizance
and issued summons, and the investigating officer did not consider it
necessary to arrest the accused during investigation, the accused
should be directed to appear before the trial court and furnish bail to
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its satisfaction rather than being subjected to a formal arrest after
completion of the investigation. If custodial interrogation was
necessary, the investigating officer could have arrested the accused
during the investigation itself. The Hon’ble Supreme Court
accordingly directed the accused to appear before the CBI Court,
Gorakhpur, and furnish bail to its satisfaction.
35 (vii). Yet another decision cited by the learned Senior
Advocate in Jaildar Singh v. State , 2022 Supreme OnLine MAD
19221, to the aspect after taking cognizance, where the accused
appear before the Court in pursuance to summons, the Court may
reasons recorded and where custody is considered necessary for the
proper conduct of the inquiry or trial, remand the accused to judicial
custody under section 309 (2) of Cr.P.C, without resorting to section
88 of Cr.P.C (section 91 of BNSS). Here, in this case, the accused
executed a bond under section 91 of BNSS, therefore, the order of
remanding the accused, after framing charges to the judicial custody
was not in accordance with the said decision. Alternatively, the
court may direct the accused to execute a bond, with or without
sureties, under section 88 of CrPC. The choice between remand and
execution of a bond lies within the court’s discretion, depending on
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the circumstances of the case. Once the accused is remanded under
section 309(2) of CrPC, the remedy is to apply for bail in
accordance with law.
35 (viii). The said Senior Advocate also cited a decision of
the Bombay High Court in Santosh Balkrishna Nadgaonkar v.
State of Maharashtra & Anr , 2025: BHC-AS:53612-DB, to the
aspect when the accused appears during the investigation and before
the criminal Court in response to summons he cannot be remanded
to judicial custody merely because he has not obtained a bail order.
35 (ix). The Senior Advocate also referred the decision of
the Delhi High Court in Sharad Kumar v. Central Bureau of
Investigation , (2011) 125 DRJ 200 held that an accused charged
with a non-bailable offence who appears before the court in
response to summons and submits to its jurisdiction comes within
the court’s control for the purpose of considering bail under section
437 of the Cr.P.C. or section 439 of Cr.P.C., as applicable. If the
accused’s bail application is rejected after judicial consideration, the
court may remand the accused to judicial custody under section
309(2) of Cr.P.C. while adjourning the proceedings. The Court
further held that section 88 of Cr.P.C., which empowers the court to
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require a bond for appearance, is discretionary and does not confer
an automatic right to release or override the specific provisions
governing bail for non-bailable offences.
35 (x). By heavily relying the decision in Tarsem Lal
(supra) , the said Senior Advocate submitted that the remand of the
accused, even after the framing of charges, was unwarranted and
illegal. It was further submitted that there was no evidence to show
that A8 had threatened any witness and that the Witness Protection
Scheme had not been extended to the material witnesses. In this
case, though the trial Judge stated in the impugned order that
altogether the accused A7 to A10 had not been provided the Witness
Protection Scheme and that there is apprehension of the police
officials influencing the witnesses if they were released from jail,
such observations are merely based on the assumptions and
presumptions of the learned Trial Judge. Therefore, the impugned
order is liable to be set aside and the petition is to be allowed.
36 (i). Mr. T. Lajapathy Roy, learned Senior Advocate
appearing for A9, submitted that, in paragraph No.6 of the
impugned order, the learned trial Judge had arrived at a conclusion
that A7 to A10 were required to be taken into custody to ensure a
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fair trial, as otherwise, they were likely to tamper with the witnesses
or cause harm to them. However, no material whatsoever had been
placed either by the prosecution or by the de facto complainant to
substantiate such apprehension. Though witness protection was
given as to the material witnesses, it was not placed before the trial
court. Even the trial court has not called for witness protection order
to verify whether the accused has not provided the witness
protection or intended to tamper the witness. The impugned order is
non-application of mind, wherein the investigation officer has filed a
supplementary charge sheet. In paragraph No.16.17 of the further
police report the investigation officer had not arrested the accused
A7 to A10. Therefore, remanding them to judicial custody after
execution of bond of section 91 of BNSS is not warranted. The
allegation against the petitioner /A9 is only fabrication of general
diary, and for this purpose framing the major charge under section
103 of BNS is not warranted, which amount to non-application of
mind by the trial Court.
36 (ii). The said Senior Advocate referred the decision of
the Hon'ble Delhi High Court in Shahid Yousuf v. National
Investigation Agency , 2025 SCC OnLine Del 9449, in which
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section 528 of BNSS is maintainable by challenging the remand
order.
36 (iii) . The said Senior Advocate also referred the Hon'ble
Supreme Court decision in Asian Resurfacing of Road Agency
Private Limited v. Central Bureau of Investigation , (2018) 16 SCC
299, to the aspect of inherent powers of High Court under section
528 of BNSS to challenge the remand order even after framing the
charges. There is no quarrel with the decisions cited by the learned
counsel for A9 under section 528 of BNSS, the remand order passed
by the trial court after framing charges, even under section 346 of
BNSS, is maintainable. However, the court has to decide whether
the remand of the accused is justified or not.
37 (i). Mr.S.Chellapandian, learned Senior Advocate for A7
substantially adopted the arguments canvassed by the learned
counsel for A8. He would submit that A7, who is the Deputy
Superintendent of Police was a witness in the original charge sheet.
After the supplementary charge sheet was filed on 11.12.2025, A7
appeared before the committal Court and executed a bond under
section 91 of BNSS. When the committal Court committed the case
to the Sessions Court, A7 appeared before the Sessions Court upon
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receipt of the summons. However, the learned Sessions Judge
abruptly remanded A7 to judicial custody after framing charges on
10.09.2026. The said remand is wholly unnecessary and
unwarranted.
37 (ii). The said Senior Advocate also touched upon the
common order passed by this Court in Crl.O.P.(MD)No.4859 of
2026 batch dated 15.06.2026 in paragraph No.20, wherein this Court
has come to the conclusion that once a bond under section 91 of the
BNSS had been executed, there was no necessity for the accused to
seek anticipatory bail. However, this aspect was not considered by
the trial Court . The observation in paragraph Nos.9 and 10 of the
impugned order that the accused are not ordinary persons, they are
police officials and they attempted to create false entries in the
public records with a view to conceal the commission of crime,
which are to be tested only during the trial. Therefore, the
observation during the remand order is not required.
37 (iii). He would further submit that as stated in
Paragraph No. 16.14 of the supplementary charge sheet, the
Forensic Science Laboratory (FSL) report does not whisper a word
against the petitioner/A7. Therefore, the finding of the learned trial
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Judge that remanding the accused to judicial custody is necessary to
prevent him from destroying the CDR details is wholly unwarranted.
The said Senior Advocate also referred two decisions cited by A8
counsel in the case of Satender Kumar Antil (supra) and Tarsem
Lal (supra) .
38 (i). Mr. A. Raja, learned counsel appearing for A10,
advanced his arguments more or less, similar to those canvassed by
the three learned Senior Advocates appearing for A8, A9 and A7.
His argument further runs into that the remand order dated
10.09.2026 without cancelling the bond executed under section 91
of BNSS is not correct. Though the trial Court has power to remand
the accused for judicial custody by using section 346 of BNSS,
before that the bond executed under section 91 of BNSS should
have been cancelled, in which there is no cancellation in the case in
hand.
38 (ii). He further submitted that though the accused has
executed a bond under section 91 of BNSS and when the trial Court
decided to remand the petitioner on framing charges by using
section 346 of BNSS, sufficient time must have been given to the
accused, either to approach the higher forum or to surrender before
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the Court and seek regular bail. Without doing so, on remanding the
accused on the date of framing charges is not correct so. As per
section 492 of BNSS before remanding the accused by using section
346 of BNSS, the trial Court ought to have cancelled the bond
executed under section 91 of BNSS, in which there is no such order.
Even there was no request from the police or the victim for
remanding the accused. Therefore, the remand order against A10 is
non est in law and, therefore, it has to be set aside .
39 (i). Mr. N.Mohideen Basha, the learned Special Public
Prosecutor for CBI submitted the arguments of all the petitioners
contending that all the petitions are liable to be dismissed, wherein
the bond executed under section 91 of BNSS on appearance before
the committal Court by the petitioners herein are only protected
before the committal Court and not before the Sessions Court, as per
the decision of this Court in a batch of cases, where the accused
moved the anticipatory bail petitions before this Court in Crl.O.P.
(MD)No.4859 of 2026 batch, by a common order dated 15.06.2026.
This Court in paragraph Nos.21 and 22 held that the bond under
section under section 91 of BNSS is sufficient for their appearance
before the committal Court and the committal Court can proceed
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further for committing the case in accordance with law and directed
the Chief Judicial Magistrate, Madurai, not to remand the petitioners
to custody while committing the case to the Sessions Court. Thereby
,the said order had given protection to the accused herein only upto
the stage of committal.
39 (ii). He further submitted that once the matter has been
committed and made over to the trial Court and the Sessions Judge
has taken the matter and issued summons for appearance of the
accused and they ought to have availed bail before the trial Court.
Though initially as per the supplementary charge sheet, the charges
against the petitioners herein were only upto 7 years punishment
charges, thereby, the trial Court accepted the appearance of the
accused on summons and proceeded further. Once the trial Court
framed charges against the petitioners herein with a grave offence of
murder-custodial death with abetment of the commission of offence
by the petitioners, which carries a maximum punishment of death
sentence, thereby, remanding the accused after framing the charges
is rightly done so. Therefore, the contention of the accused counsels
that without cancelling bond under section 91 of BNSS, remand is
vitiated cannot be accepted.
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39 (iii). He would further submit that the trial Court has power
under section 346 (2) of BNSS to remand the accused, considering
the trial aspect, and there is no need to cancel the bond under section
91 of BNSS, which is not the bail bond as per Tarsem Lal ( supra )
cited by the accused herein. Even as per Satender Kumar Antil
( supra ), when the offence is classified as category B, which carries
punishment of more than 7 years, the bond under section 91 of
BNSS is not applicable to the punishment more than 7 years and
above. Thereby, the accused has to seek bail before the Court
concerned. In this case, once the charges have been framed on
10.09.2026, when the Court has given a caution to the accused
whether they are ready to avail the bail, without doing so, the
learned counsels for the accused argued that the bond under section
91 of BNSS is protected, and, t herefore, taking into consideration
the entire sequence of events and the inception of the case, the
accused cannot be permitted to file a bail application, particularly in
view of the apprehension that they may tamper with the witnesses.
39 (iv). He would further submit that during the course of further
investigation and until the date of remand, the accused remained at
liberty. Though the investigation agency has come up with the
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charges against the petitioners with the maximum punishment of 7
years and on considering the facts of the case, the trial Court framed
major charge of section 103(1) r/w 49 of BNS in addition to that
other offences. The trial Court has found that the custody of A7 to
A10 is just and necessary for the protection of the witnesses and to
ensure that the trial proceeds in accordance with the directions
issued by this Court. In the absence of any material to disprove the
apprehension of witness tampering, the trial Court was justified in
remanding the accused to judicial custody. Therefore, there is no
adequate reason assigned by the petitioners to set aside the same.
39 (v). The learned Special Public Prosecutor submitted
that as per Satender Kumar Antil (supra) case in Category B / D, it
was held that on appearance of the accused in Court, pursuant to the
process issued, bail application to be decided on merits. The offence
categorized the said Court is in Category B, sessions offence
punishable with death, imprisonment for life or imprisonment for
more than 7 years. Thereby, once the charges have been framed
with the maximum punishment of death, which is more than 7 years
of punishment, it is the bounden duty of the accused to seek bail
after surrender, which was not done so. Therefore, as per the
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decision in Satender Kumar Antil (supra) case, the remand of the
accused is intact.
39 (vi). The learned Special Public Prosecutor also
touched upon the Tarsem Lal ( supra ) case, cited by the accused by
referring paragraph No.8 of the judgment in which, the offence
therein is under section 4 of PMLA, where the punishment
prescribed therein for more than three years, and in view of clause
(x) of section 2 of Cr.P.C., the complaint will be treated as a warrant
case, while taking cognizance of the offence, the Special Court has
the discretion to issue either a summons or warrant, in which the
principle of the said decision is not applicable to case involving the
death sentence. Though bond under section 91 of BNSS is for
appearance of the accused in due course, but as per other decision of
the Hon’ble Supreme Court once the Court felt that the charge is
major offence, it is mandatory on the part of the accused to seek
bail.
39 (vii). The learned Special Public Prosecutor cited the
decision of the Hon’ble Supreme Court in Pradeep Ram v. State of
Jharkhand & Anr , AIR 2019 SC 3193, wherein it was held that the
accused was granted bail for the minor offences and later part graver
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offence is added during further investigation, the investigation
agency cannot arrest the accused on its own, but, they can arrest
after obtaining orders from the concerned Court. Further held that
once cognizance has been taken, remand of the accused, who is
subsequently arrested during further investigation must be
authorized under section 309(2) Cr.P.C rather than section 167 of
Cr.P.C. Further held that where an accused has already been granted
bail and a graver offence is subsequently added during further
investigation, the investigating agency cannot arrest the accused on
its own merely because the additional offence has been
incorporated. The competent court may, in exercise of its powers
under sections 437(5) or 439(2) of Cr.P.C., direct the accused to be
arrested and committed to custody, even without formally cancelling
the earlier bail order, where the circumstances justify such action.
39 (viii). The Court further held in that decision that, once
cognizance has been taken, remand of an accused, who is
subsequently arrested during further investigation, must be
authorised under section 309(2) of CrPC, as applicable, rather than
section 167 of CrPC. The judgment also considered the NIA’s
authority to take over investigation, conduct further investigation
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and submit a report concerning additional offences. In paragraph
No.29 of the above cited case, it was held that taking note of the
factual scenario and facts and circumstances of the case, where after
grant of bail to an accused, further cognizable and non-bailable
offences are added, the accused can surrender and apply for bail for
newly added cognizable and non-bailable offences. In the event of
refusal of bail, the accused can certainly be arrested.
39 (ix). The learned Special Public Prosecutor cited the
decision of the Hon’ble Supreme Court in Pankaj Jain v. Union of
India & Anr, (2018) 5 SCC 743, to hold that section 88 of Cr.P.C.
(section 91 of BNSS), does not confer an enforceable right on an
accused to be released on furnishing a bond merely because the
accused was not arrested during the investigation. It is discretion
power given to the Court to accept bond under section 91 of BNSS
or not. The provision confers a discretionary power on the court to
accept a bond, with or without sureties, to secure the appearance of a
person before it. The exercise of this discretion depends on the
circumstances of the case. Where a non-bailable warrant has already
been issued against the accused and proceedings under sections 82
and 83 of Cr.P.C. have been initiated, the accused cannot be treated
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as a free agent appearing voluntarily before the court and cannot
claim the benefit of section 88 as a matter of right. Accordingly, the
Hon’ble Supreme Court upheld the rejection of the application for
release on bond under section 88 of CrPC and dismissed the appeal.
39 (x). The learned Special Public Prosecutor also
referred the decision of the Hon’ble Supreme Court in State by the
Inspector of Police, Chennai v. S.Selvi & Anr . (2018) 13 SCC 455
to aspect at the time of framing charge, probative value of material
on record has to be gone into which proceed on presumption that
material produced by prosecution is true but court is not expected to
go deep into the matter and hold that material produced does not
warrant conviction. Here, the case in hand the trial Court framed
charges with maximum punishment of death, which is probative at
the time of framing charges, thereby, the contention of the accused
that the reason assigned by the trial Court for remanding the accused
is not correct so as no fault at all and it has to be rejected.
39 (xi). By summarising his argument, by placing the decisions
cited by the accused, the learned Special Public Prosecutor also
touched upon the decision referred by A8 counsel in the case of
Siddharth (supra) , where this Court co-ordinate Bench held that on
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appearance of the accused, the Court may, for reasons to be
recorded and where custody is considered necessary for the proper
conduct of the trial, remand the accused to judicial custody under
section 309(2) of the Cr.P.C., without resorting to section 88 of the
Cr.P.C.
39 (xii). Though the counsel for A8 Mr.R.Gandhi, Senior
Advocate, touched upon the said decision that there are two options
available to the Court either to accept the bond under section 91 of
BNSS or remand the accused to judicial custody under section
346(2) of BNS, but in this case, as per the common order dated
15.06.2026 passed in a batch cases, it is contended by the learned
Special Public Prosecutor that the protection order given by this
Court in the anticipatory bail application is only upto the committal
of the case and not applicable to the trial Court. Though the trial
Court issued summons for appearance of A7 to A10 and they
appeared even then they did not file any application under section
91 of BNSS for further appearance assurance, but, after framing the
charges with major offence of murder charge, the trial Court has
given signal that it is going to remand the accused and posed a query
whether the accused has availed bail or not. At that time the accused
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ought to have expressed their willingness to furnish bail but failed to
file appropriate bail application.
39 (xiii). Finally, the Special Public Prosecutor contended
that without doing the same and argued the case, which is not
warranted, the interfere of this Court. The contention that the trial
Court could not have passed an order of remand on the same day
without cancelling the bond executed under section 91 of the BNSS
cannot be accepted. The trial Court is empowered to remand the
accused under section 346(2) of the BNSS, and the exercise of such
power does not warrant interference by this Court. Therefore, the
learned Special Public Prosecutor submitted that all the petitions are
liable to be dismissed.
40 (i). Mrs. Nithya Ramakrishnan, learned Senior
Advocate, connected through Video Conferencing from New Delhi,
on behalf of the intervenor, viz., defacto complainant, who is
impleaded as R11 in Crl.O.P.(MD)No.20517 of 2026, submitted her
argument assisted by Mr.Henry Patrick Tiphange. She contended
that there is no need to cancel the remand order passed by the trial
Court. The bond under section 91 of BNSS is only protective before
the committal Court and not before the Sessions Court, when major
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offence charged carries a punishment of death sentence or
imprisonment for life. Therefore, the remand order cannot be set
aside . When the charge is framed with capital punishment, there is
no requirement of cancelling the bond under section 91 of BNSS
and the Court can straight away remand the accused, taking note of
the facts and circumstances of each case in which the case in hand,
where A7 to A10 are police officials, t here is every possibility of the
accused tampering with the witnesses, particularly as they would be
out of bail.
40 (ii). She further contended that as the contention of one
of the accused / A10 that the trial Court ought to have cancelled the
bond executed under section 91 of the BNSS, resorting to section
492 of the BNSS is not required. Having there is no bail granted to
the accused, there is no requirement of further cancelling the bond
as per the sections mentioned by the accused. The common order
passed by this Court dated 15.06.2026 referred by all concerned is
only binding on the Chief Judicial Magistrate and not on the
Sessions Judge, wherein, the protection given till the committal of
the case and not beyond that. She would further contend that
Tarsem Lal (supra) cited by the accused is not applicable to the
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sessions case and it is only applicable to the proceeding under
sections 200-202 of Cr.P.C., where it is a private complaint under
PMLA Act. Though Tarsem Lal ( supra ) case says that the bond
executed under section 88 is protective only for the minor offence
and as per the Satender Kumar Antil ( supra ) decision, when the
offence is classified as Category B, which is more than 7 years
punishment, the accused must have avail bail before the concerned
Court and having not done so, the remand order is justifiable.
40 (iii). The learned Senior Advocate for the defacto
complainant / intervenor referred the Hon’ble Supreme Court
decision in Niranjan Singh & Anr v. Prabhakar Rajaram Kharote
& Ors , (1980) 2 SCC 559, referring that the custody under section
439(1) of Cr.PC means, it includes physical surrender of the accused
before the court coupled with submission to its jurisdiction and
orders. By citing the above principle, it is contended by the learned
Senior Advocate that the submission of the accused in total that the
accused was not in judicial custody while remanding the accused by
using section 346(2) of BNSS is not correct so. Whenever the
chance of appearance before the Court by summons or surrender
includes the physical surrender by the accused before the Court and
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the submission is to direction, thereby, the contention of the accused
that the accused was not in judicial custody by remanding the
accused under section 346 of BNSS cannot out force at all.
40 (iv). The said Senior Advocate referred paragraph No.4
of the decision in Niranjan Singh ( supra ) case, in which, it says
that intimidation by policemen, when they are themselves accused
of offences, is not an unknown phenomenon and the judicial process
will carry credibility with the community only if it views impartially
and with common sense the pros and cons, undeterred by the
psychic pressure of police presence as indicates. It was observed in
paragraph No.11 of the said reported decision that the accused
policemen are entitled to an unprejudiced trial without any bias
against the 'uniformed' force which has difficult tasks to perform.
40 (v). The learned Senior Advocate also referred the
decision referred by the learned Special Public Prosecutor, in the
case of Pradeep Ram (supra ) case, by touching certain paragraphs,
viz., 11, 12, 18, 19 and 23 and having the accused was not arrested
for minor offence during the investigation and after filing the charge
sheet, when the Court frames charge of major offence, the bond
executed under section 91 of BNSS cannot be used for protection
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for the major offence, thereby the accused must have to seek bail,
but in this case no bail application was filed by the accused, even
after framing charges. Therefore, as per the decision in Satendar
Kumar Antil (supra) , the remand of the accused is in pursuance of
section 346(2) of BNSS which is correct and there is no reason to
set aside the same.
40 (vi). The said Senior Advocate also cited the decision
in Hamida v. Rashid @ Rasheed &Ors , (2008) 1 SCC 474, in
which held that a n accused, upon the addition of a serious non-
bailable offence, is required to surrender and apply for bail in
respect of the newly added offence. The bail granted to the accused
prior to the addition of the new non-bailable offence shall not
automatically enure to the benefit of the accused insofar as the
newly added offence is concerned. Therefore, the accused is
required to surrender and obtain bail in respect of the newly added
offence to protect himself from arrest. The cited case in Hamida
(supra) , the facts reveal that the accused was originally granted bail
for the offence under sections 324, 352 and 506 of I.P.C. After that,
the victim succumbed to his injuries in the night intervening
16.06.2005/17.06.2005, thereby, the offence was converted into
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section 304 of I.P.C, thereby the accused filed application before the
High Court to permit them to remain on the same bail even after
conversion of the offence into section 304 of I.P.C. It was allowed
by the High Court. Thereafter, the complainant filed a Special Leave
Petition before the Hon’ble Supreme Court, in which the Supreme
Court allowed the appeal and set aside the High Court order and the
accused shall be taken into custody forthwith. It will be open to the
accused to apply for bail for the offences for which they are charges
before the appropriate Court and in accordance with law.
40 (vii). In that cited peculiar case, when the Court framed
charge under section 302 r/w 34 of I.P.C against the accused therein,
thereafter, approached the High Court under Section 482 of Cr.P.C
for the same relief and passed an order favouring the accused therein
to remain the accused under section 302 r/w 34 of I.P.C on
furnishing sureties and bail bond only on the ground that they were
on bail with the offence under section 304 of I.P.C. Those orders
also observed to be set aside on the same ground, thereby, set aside
that order, and directed the accused to be taken in the custody.
40 (viii). By citing Tarsem Lal (supra) and Satender
Kumar Antil (supra) , the learned Senior Advocate submitted though
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in this case, they executed a bond under section 91 of BNSS, for the
offences punishment upto 7 years, when the Court framed charges
with major offence of section 103 (1) r/w 49 of BNS with other
charges, it is mandatory on the part of the accused to surrender
before the Court and seek bail, in which, it was not taken place,
thereby the trial Court itself with reasoning order dated 10.09.2026,
remanded the accused and the remand order cannot be challenged
under the guise of inherent powers of this Court under section 528
of BNSS and the accused may seek bail in the manner known to law
before the appropriate Court.
40 (ix). The learned Senior Advocate further contended
that the bond under section 91 of BNSS executed is limited only for
the purpose of appearing and not limited the powers of Sessions
Court to remand the accused for serious offence, where charges
framed. She further contended that Tarsem Lal (supra) case cited
by one of the accused herein, in which it referred sections 200-205
of Cr.P.C., which is a summon or warrant case on a private
complaint and the said reasoning and principles are not applicable to
the sessions case which has major sentence of death sentence. She
further contended that the bond executed under section 91 of BNSS
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would not stopping the trial Court to remand the accused. The
power of remand always remains with the trial Court, even for
section 91 of BNSS bond not cancelled. Any liberty granted to the
accused in respect of a minor offence cannot automatically extend to
the major offence subsequently added, particularly when the charges
for the major offence are framed by the trial Court, as per the
citations referred by both sides of Satender Kumar Antil (supra),
Hamida (supra) and Pradeep Ram (supra). Therefore, this Court,
in exercise of its inherent powers under section 528 of the BNSS,
should not cancel or set aside the order of remand and should direct
the accused to approach the appropriate forum for bail.
40 (x). In N. Mani v. Sangeetha Theatre & Ors , (2004)
12 SCC 278, held that an order passed by a statutory authority
exercising a power legally vested in it does not become invalid
merely because the authority has failed to refer to the correct
statutory provision or has referred to an incorrect provision of law.
If the power exercised by the authority exists under the law and can
be traced to a valid statutory source, the omission or incorrect
citation of the enabling provision does not, by itself, vitiate the
order.
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41. Mr.Henry Patrick Triphange, learned counsel for the
intervenor submitted that the facts reveal that t hough A10 has filed
the present petition seeking to set aside the order of remand, he has
also filed a bail application before the Sessions Court. Having
chosen to exercise his right to seek bail before the Sessions Court, he
cannot simultaneously challenge the order of remand by invoking
the inherent powers of this Court under section 528 of the BNSS.
He also placed certain orders passed by the learned Principal
Sessions Judge, Sivagangai, under the Witness Protection Scheme,
before this Court and submitted that even after passing the witness
protection order, the Inspector of Police, Tiruppuvanam Police
Station and the Deputy Superintendent of Police, Manamadurai,
have not given adequate witness protection and thereby, there is
every chance that the police, who are the accused in this case tamper
the witness, thereby, the trial Court rightly remanded the accused,
after framing charges for major offence. Therefore, the remand
order is legal under section 346(2) of BNSS and also the citations
referred by the prosecution cited as well as the intervenor.
Therefore, he submitted that all the petitions filed by the accused are
liable to be dismissed and the petitioners may work out their remedy
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for seeking bail application in an appropriate way.
42. By way of reply, Mr.R.Gandhi, learned Senior Advocate
for A8 submitted that the decision of Tarsem Lal (supra) case is
applicable to the facts of the case and the principles cited by the
prosecution as well as the intervenor in Pradeep Ram (supra) case is
not applicable. Satender Kumar Antil (supra) case has to be dealt
with in two aspects before and after the charges framed. Therefore,
the remand order is not correct, which is unwarranted when the bond
under section 91 of BNSS was executed. Therefore, this Court has to
interfere and to set aside the remand order of the accused concerned.
43. I have considered rival submission of both sides and also
perused the records. The challenge in all these petitions are to set
aside the remand order dated 10.09.2026, remanding the petitioners
herein to judicial custody, who are A8, A9, A7 and A10
respectively. All the counsels for the accused in common submitted
that the petitioners were not arrested during the further investigation
and laid a supplementary charge sheet with a prayer to issue
summons to the accused A7 to A10 and try in accordance with law.
Having no custodial interrogation sought for by the investigating
agency and no arrest was made even for remand, the petitioners
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appeared before the committal Court on summons. Then all the
accused executed bond under section 91 of BNSS for their
appearance in further. One or the other way, after execution of such
bond under section 91 of BNSS, all the accused approached this
Court for anticipatory bail, apprehending arrest.
44. This Court by a common order dated 15.06.2026 in
Crl.O.P.(MD)No.4859 of 2026 batch, came to the conclusion that
once bond under section 91 of BNSS was accepted by the committal
Court, they need not be granted anticipatory bail, thereby,
anticipatory bail petitions were dismissed by this Court directing the
committal Court holding that the bond under section 91 of BNSS is
sufficient for appearance before the committal Court and the
committal Court can proceed further for committing the case to the
Sessions Court in accordance with law. In paragraph No.22 of the
common order it was observed that the committal Court is directed
not to remand the petitioners to custody while committing the case
to the Sessions Court. After the summons received from the trial
Court, all the accused appeared before the trial Court and on
engaging their counsels, the proceeding was adjourned for some
time and finally, the trial Court framed charges against the accused
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A7 to A10 herein and also the original accused A1 to A6 on
10.09.2026. After questioning the accused, the trial Court intended
to remand the petitioners herein and heard the arguments.
45. The learned counsel for the accused submitted that when
the Court called upon the counsel for the accused whether the
accused are entitled to avail bail for the charges framed with the
major offence of murder, the learned accused counsels submitted
that the bond executed under section 91 of BNSS before the
committal Court is enough and the accused would not go for
availing the bail, even though their anticipatory bail applications
were dismissed by a common order dated 15.06.2026. The trial
Court after considering the rulings relied by the accused in
specifically, Tarsem Lal ( supra ) and Satender Kumar Antil (supra)
and the decision of this Court in a batch of cases referred above, by a
common order dated 15.06.2026 and another bail application filed
by A6/ Ramachandran, dismissal order dated 28.08.2026 in Crl.O.P.
(MD)No.15373 of 2026, in which this Court observed in the bail
dismissal order that after considering materials and records and
framing charges against the additional accused, viz., A7 to A10 for
the offences punishable with imprisonment for more than 7 years,
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their cases would fall under the Category B as per Satender Kumar
Antil (supra) case. In such event, the bonds executed under section
91 of BNSS are cannot be treated as ordering granting bail and they
would be seek remedy before the competent Court.
4 6. The said order passed on the bail application of A6/
Ramachandran is the order passed by this Court to the subject case
and the said direction, observation and ratio are applicable to the
facts of the present case, unless the said decision was set aside by
the competent forum in the manner known to law. Further it is not
the case of the accused herein, viz., A7 to A10, that they may not
aware of the said order, even before the charge was framed on
10.09.2026.
47. In Tarsem Lal (supra) , arose out of a private complaint
filed under the Prevention of Money Laundering Act (PMLA). In the
course of proceedings under sections 200 to 205 of Cr.P.C, where
the punishment under the provision of PMLA carries more than 3
years upto 7 years under section 4 of PMLA. Therefore, the Hon’ble
Supreme Court has taken a view that the bond executed under
section 91 of BNSS, where the enforcement director did not arrest
the accused therein till the filing of the private complaint, thereby on
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summons from the Court, the accused appeared and executed a bond
under section 91 of BNSS, has protection of the accused. In the said
judgment, the Hon’ble Supreme Court also categorically held in
paragraph No.15 bottom holding that the order accepting the bond
under section 88 of Cr.P.C from the accused does not amount to
grant of bail.
48. In Satender Kumar Antil (supra) , the categories of cases
have been classified into four categories, as Categories A, B, C and
D. Category A deals with offence punishable with 7 years or less
not fell in other category. Category B offence deals with offence
punishable with death, imprisonment for life or imprisonment for
more than 7 years. Like that, Category C deals with offence
punishable under the Special Acts, containing stringent provisions of
bail, like NDPS, PC Act, UAPA etc. As far as Category D deals
with offence not covered by the Special Acts.
49. Here, the present case falls under Category B. Upon
filing the supplementary charge sheet, the prosecution case against
A7 to A10 where the offences are punishable with imprisonment
upto seven years. In this regard, this Court is of the considered view
that the bonds executed by A7 to A10 under section 91 of the BNSS
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may remain in force in respect of the offences covered by the
supplementary charge sheet, which carries maximum punishment of
seven years. As per the principles laid down in Satender Kumar
Antil (supra) , arrest is not ordinarily required in respect of offences
punishable with imprisonment of upto seven years, subject to
compliance with the applicable legal requirements. It is specifically
classified that the offence carried punishment for more than 7 years
upto death, it was held by the Hon’ble Supreme Court that on
appearance of the accused in Court, pursuant to the process issued,
bail application to be decided on merits for the category of B and D
offence.
50. Here, in our case, the trial Court issued process, upon
receipt of the case made over by the Sessions Court to the accused to
appear before it. Though the investigating agency did not arrest A7
to A10 during the investigation, wherein they comeup with the
charge which carries punishment upto 7 years as per the decision in
Arnesh Kumar v. State of Bihar & Anr . (2014) 8 SCC 273, when
the punishment for the offence carries upto 7 years a mechanical
arrest is not necessary and if at all the investigating officer feels that
the arrest is required, even for the punishment of 7 years, there must
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be a specific reason to be recorded in the CD file.
51. It is the view of the Hon’ble Supreme Court as per the
decision in Arnesh Kumar (supra) case that the arrest upto 7 years
punishment need not be mechanically done, taking note of the legal
principles, the investigating officer in this case could not be arrested
A7 to A10, during the investigation. Once the charge has been
framed by the Sessions Court with the major offence of murder with
abetment under section 103 r/w 49 of BNS, at that time, the Court
has called upon the accused A7 to A10, whether they intend to file
bail application or not. It was incumbent upon the accused counsels,
who appeared before the trial Court, to file an appropriate bail
application, or they may seek for some time to comeup with bail
application by way of surrendering the accused or anticipatory bail
before this Court, wherein the earlier anticipatory bail petitions filed
by the petitioners were dismissed on the ground that section 91 of
BNSS is enough for the committal Court.
52. When the charge is framed with the major punishment of
death sentence, as per Satender Kumar Antil (supra) , Pradeep Ram
(supra), Pankaj Jain (supra) , Niranjan Singh (supra) , Sumit
( supra ) , Hamida ( supra ) and Prahlad Singh Bhati (supra) , the
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accused must have been surrendered before the trial Court and then
they have to seek bail, which is not done so by the accused in this
case. It is settled law by the Hon’ble Supreme Court that whenever
the minor charge is mentioned in the charge sheet or the F.I.R if the
accused availed either bail or anticipatory bail for those offence and
later part, when the investigating officer has comeup with the major
charge, which carries more than 7 years punishment, the earlier bail
granted in respect of the lesser offence cannot be construed as
extending bail granted to the major offence, and thereby, the accused
must have to seek regular bail for the major offence by way of
surrendering before the judicial custody.
53. The law is well settled to that aspect and even then the
learned counsel for the accused relied upon Tarsem Lal (supra)
case, which was in connection to private complaint under the PMLA
Act, which carries maximum punishment of 7 years. Even as per the
decision in Tarsem Lal (supra) paragraph No.15.4, it was held that
the bond executed under section 88 of Cr.P.C (section 91 of BNSS)
cannot be equated to the bail bond. If it is so, the bond executed by
the accused under section 91 of BNSS cannot be equated to the bail
bond for the major offence of murder, when the charge was framed,
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thereby, the accused ought to have been availed bail, which is
warranted, which was not done so in these cases. Therefore,
considering all the decisions cited before this Court and also the
certain decisions considered by the trial Court under the impugned
order dated 10.09.2026, taking into consideration that the accused
A7 to A10 are police officials, there is every possibility of chance to
intimidate the witnesses or tampering the witness. Therefore,
considering the gravity and nature of the offence where the accused
A7 to A10 have been charged they should have been remanded by
the trial Court to judicial custody and accordingly, remanded.
54. The facts reveal that originally A1 to A6 are in judicial
custody from the registration of F.I.R. A7 is Deputy Superintendent
of Police, A8 is Inspector of Police, A9 and A10 are under the
category below to the Sub Inspector. Taking note that the deceased
Ajith Kumar was beaten by Special Team under the control of
Deputy Superintendent of Police, Manamadurai, who is A7 in this
case, murdered the deceased Ajith Kumar as custodial death.
Thereby, there may be a connivance of these accused with original
accused A1 to A6. Therefore, the trial Court felt that interest of
justice and fair trial to be followed, the trial Court remanded A7 to
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A10, after framing the major charge of murder offence.
55. The contention advanced by the learned counsel for the
intervenor/defacto complainant, relying upon the decisions referred
to above, is that the bond executed under section 91 of the BNSS
cannot afford protection to the accused before the Sessions Court
once a charge of murder has been added either by the investigating
agency or framed by the Court. Once charges for a major offence are
framed, the accused is required to surrender before the competent
Court and seek bail. However, the accused have failed to do so.
Therefore, it is contended by the intervenor counsel that right option
to the accused is to approach the bail jurisdiction and not under
section 528 of BNSS for using inherent powers of this Court, where
an alternative remedy is available to work out before the appropriate
forum.
56. Though the accused counsel submitted that by invoking
inherent power of this Court under section 528 of BNSS, the remand
order be set aside which is not disputed by the prosecuting agency as
well as the intervenor side counsel, but, once the remand is done and
the accused are in judicial custody by the judicial order, the said
order cannot be set aside under section 528 of BNSS. Whenever an
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order passed by the competent authority is sought to be set aside , the
appropriate remedy is to approach the appellate forum. In the present
case, the accused merely challenging the order of remand under
section 528 of BNSS without approaching bail jurisdiction is not
correct way. Once the accused have been remanded to judicial
custody with a reasoned order, they must work out their remedy
before the appropriate forum for bail and cannot seek to have the
remand order be set aside by invoking the inherent powers of this
Court under section 528 of BNSS.
57. The facts reveal that before filing the petition before this
Court, A10 already approached the trial Court for bail and the bail
application was pending at the time of filing the petition by A10
before this Court. Once A10 approached the competent Court and
invoked its jurisdiction by filing a bail application, he cannot be
permitted simultaneously to have the order of remand be set aside .
In this regard, the learned counsel appearing for A10 submitted that
the accused has every right to challenge the order of remand while
simultaneously seeking bail, even assuming that the order of remand
is correct. The said kind of argument in two different aspects cannot
be accepted, whereas the accused has to take a decision by election,
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if he wants to challenge the remand order he can do so or else , he
may invoke the bail jurisdiction of the competent Court and, after
that may approach the higher forum for appropriate relief, rather
than invoking the inherent powers of this Court under section 528 of
BNSS.
58. When these petitions were moved and pending for
consideration, all the accused counsels submitted that the impugned
order dated 10.09.2026 may not be stayed, taking note of the
previous direction of this Court for expeditious trial. The learned
Special Public Prosecutor submitted that the stay of the trial cannot
be granted. The Investigating Officer submitted before this Court
that the witnesses should not be produced for trial until the disposal
of the present matter. The said submission was also recorded by this
Court during the course of arguments, particularly in view of the fact
that the charges had already been framed.
59. The learned counsel for intervenor / defacto complainant
submitted in the intervening application and also by oral that the
assurance given by the learned Special Public Prosecutor and the
Investigating Officer that they would not produce the witness before
the trial Court and the earlier direction of this Court for expeditious
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trial cannot be complied. Therefore, it is the submission of the
intervenor that these petitions are liable to be dismissed with a
direction to the trial Court to expedite the trial proceedings subject to
the petitioners may go for bail remedy before the appropriate forum.
60. On considering the submissions raised by the accused
and also the prosecuting agency coupled with the intervenor and the
judicial decisions referred by respective counsels extracted in this
order, this Court is of the firm view that once the trial Court
remanded the accused even after framing charges by using section
346(2) of BNSS, the accused ought to have approach the appropriate
Court for seeking bail and cannot seek to challenge the judicial order
of remand by invoking the inherent powers of this Court under
section 528 of BNSS. This Court is of the firm view that the remand
order is intact by taking note where A7 to A10 are police officials
with higher rank, viz., Deputy Superintendent of Police, Inspector of
Police and below that cadre, t hey have to approach the competent
Court invoking its bail jurisdiction and cannot seek to set aside the
order of remand by filing the present petitions under the inherent
powers of this Court.
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61. It is not the case of the accused that the Court has no
power to remand them to judicial custody. If they seek to challenge
the remand order passed by the Court concerned, they may work out
their remedy in accordance with law before the appropriate forum,
rather than seeking to set aside the remand order by invoking the
inherent jurisdiction of this Court under section 528 of BNSS.
62. All the legal principles and decisions relied upon by both
sides operate against the petitioners. Further, as per the decision in
Satender Kumar Antil (supra) , once a major offence carrying a
punishment of more than seven years is added, the accused must
seek bail in respect of the major offence, even if they had already
been granted bail in respect of the minor offence. This is also the
view of the earlier decision of the Hon’ble Supreme Court in
Pradeep Ram (supra) , Pankaj Jain (supra) , Niranjan Singh
(supra ), Sumit (supra) , Hamida (supra) and Prahlad Singh Bhati
(supra) case. Therefore, looking to the facts of the case and
submissions narrated above, all the accused submissions and
grounds raised in these proceedings do not have any merit.
Therefore, all the petitions are liable to be dismissed and accordingly
its are dismissed. The Point is answered against the petitioners.
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63. The case records reveal that based on the initial charge
sheet, there are 103 witnesses, 102 documents, and 14 articles. As
per the supplementary charge sheet, there are 43 witnesses, 21
documents and 35 articles. Altogether, there are 146 witnesses, 123
documents and 49 articles to be placed as evidence in the custodial
death case. This Court in an earlier occasion directed the trial Court
to complete the trial within a period of 8 months and as per the
undertaking given by the Special Public Prosecutor and the
Investigating Officer of these cases, the witness is not produced
before the trial Court, as the petitioners have approached this Court,
and all these petitions are found to be devoid of merit, which are
dismissed by a common order, this Court directs the trial court
taking note of 146 witnesses, 123 documents and 49 articles to be
placed as evidence expedite the trial and dispose the case within a
period of nine months from the date of copy of this order. All the
accused are directed to co-operate the trial Court to expedite the
trial. If the accused adopt any delay in tactics, it is left open to the
trial Court to pass appropriate orders based on the circumstances
prevailing at the time of examination of the witnesses.
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64. In the result,
(i) Crl.OP(MD)No. 20517 of 2026 is dismissed;
(ii) Crl.OP(MD)No. 21736 of 2026 is dismissed;
(iii) Crl.OP(MD)No. 22253 of 2026 is dismissed;
(iv) Crl.OP(MD)No. 22762 of 2026 is dismissed;
(v) The remand order dated 10.09.2026 made in S.C.No.709
of 2025 against A7 to A10 on the file of the V Additional Sessions
Judge, Madurai is hereby confirmed;
(vi) The V Additional Sessions Judge, Madurai, is directed to
dispose the case in S.C.No.709 of 2025 within a period of nine
months from the date of receipt of a copy of this order; and
(vii) Consequently, connected Miscellaneous Petitions are
closed.
04.11.2026
Internet:Yes/No
Index:Yes/No
NCC:Yes/No
LS
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To
1. The V Additional Sessions Judge,
Madurai.
2.The Special Crime -III Branch,
Central Bureau of Investigation (CBI)
New Delhi.
3. The Special Public Prosecutor for CBI Cases,
Madurai Bench of Madras High Court,
Madurai.
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DR. P. MURUGAN, J.
LS
Crl.O.P(MD) No. 20517, 21736, 22253
and 22762 of 2026
04.11.2026
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