Sivasankar vs The State of Tamil Nadu, Rep
- Court
- Madras High Court
CRL OP(MD) No.22987 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 16.10.2026
CORAM
THE HON'BLE MR JUSTICE R.VIJAYAKUMAR
CRL OP(MD) No. 22987 of 2026
CNR:{HCMD011386232026}
Sivasankar ....Petitioner/Accused No.6
Vs
1. The State of Tamil Nadu Rep.by
The Deputy Superintendent of Police,
Avarakurichi Sub Division
Karur District
2. The Inspector Of Police,
Vellayuthampalayam Police Station
Karur District
st nd
Crime No.251 of 2022 ...1 and 2 Respondents/Complainants
rd
3. Navalladi ...3 Respondent/Defacto Complainant
PRAYER: This petition is filed under Section 528 of BNSS, to call for
the records relating to the remand order dated 19.05.2026 made in
S.C.No. 75 of 2022 on the file of the learned Principal Sessions Judge,
Karur and set aside the same as illegal.
For Petitioner : Mr. S.SATHYACHIDAMBARAM
For Respondents : Mr.B.Arun
Government Advocate (Crl.side) for R1 & R2
__________
Page 1 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
ORDER
This Criminal Original Petition has been laid by the sixth accused
in S.C.No.75 of 2022, pending on the file of the learned Principal
Sessions Judge, Karur, assailing the order dated 19.05.2026, by which the
trial Court remanded him to judicial custody upon his being produced in
execution of the non-bailable warrant issued against him on 03.08.2024.
2. The petitioner stands charged with offences punishable under
Sections 147, 294(b), 323, 324 and 506(ii) IPC read with Sections 3(1)(r),
3(1)(s), 3(1)(x), 3(1)(xi) and 3(2)(va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. By an order dated 07.07.2022 in Crl.M.P.No.1258 of 2022, the
learned Principal District and Sessions Judge, Karur, enlarged the
petitioner on bail. It is not in dispute that the said order of bail has neither
been cancelled nor set aside by any forum till date.
4. Owing to the petitioner's failure to appear before the trial Court, a
non-bailable warrant came to be issued on 03.08.2024. The warrant was
executed, the petitioner was arrested and produced before the trial Court
on 19.05.2026, and by the order impugned herein he was remanded to
judicial custody.
__________
Page 2 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
5. The petitioner thereafter moved the learned Principal District and
Sessions Judge, Karur, for bail in Crl.M.P.No.825 of 2026, which came to
be dismissed on 15.07.2026. The appeal preferred therefrom in Crl.A.
(MD) No.877 of 2026 was dismissed by this Court on 28.07.2026, on the
ground that charges were yet to be framed, while reserving liberty to the
appellant to move a fresh application for bail after framing of charges.
6. A second application for bail in Crl.M.P.No.1034 of 2026 also met
with dismissal at the hands of the trial Court on 19.08.2026. The appeal
therefrom, in Crl.A.(MD) No.1084 of 2026, was withdrawn on
11.09.2026, when it was brought to the notice of this Court that the order
of remand itself had been passed contrary to the law declared by this
Court in Pillappan v. State, rep. by the Inspector of Police, reported in
(2018) 3 CTC 156 . It is in this backdrop that the present petition has been
filed, laying a direct challenge to the order of remand dated 19.05.2026,
which reads thus:
"Accused No.6 V.Sivasankar S/o.Veeraiyan produced on
19.05.2026 at 5.30 p.m. He has no complaint against the police.
His arrest was explained by the police as well as Accused
produced under the warrant accused informed about free legal
aid LADSC counsel also present. Accused remanded till
02.06.2026."
__________
Page 3 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
7. To put it succinctly, the petitioner was enlarged on bail by a
competent Court and that order continues to hold the field. The final
report filed by the investigating agency has been taken on file as
S.C.No.75 of 2022. During the pendency of the trial, the petitioner failed
to appear, which led to the issuance of a non-bailable warrant on
03.08.2024. Upon its execution on 19.05.2026, he was remanded to
judicial custody by the impugned order.
8. The learned counsel for the petitioner would contend that the
regular bail granted to the petitioner remains in force, and that so long as
the said order is not cancelled, the petitioner could not have been
remanded to judicial custody. It is his further submission that, even
assuming that the petitioner had defaulted in appearance and a non-
bailable warrant had been issued, upon his production in execution
thereof, the petitioner ought to have been afforded an opportunity to
explain the circumstances which led to his non-appearance. Without
affording such an opportunity, the trial Court could not have
mechanically remanded him to judicial custody.
9. The learned counsel would add that the petitioner has been
languishing in judicial custody for more than 180 days, and would place
reliance upon the decision of this Court in Pillappan v. State, rep. by the
Inspector of Police, (2018) 3 CTC 156, which was subsequently
__________
Page 4 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
followed in Palanivel v. State, rep. by the Inspector of Police, Veeranam
Police Station, Salem District, 2019 (3) MWN (Cr.) 57.
10. Per contra, the learned Government Advocate (Crl. Side)
appearing for the respondent police, drawing attention to paragraph
Nos.16 and 17 of the order of this Court dated 01.10.2026 in Crl.O.P.
(MD) No.21222 of 2026 (Suresh v. The State of Tamil Nadu, rep. by the
Deputy Superintendent of Police, Ponnamaravathi Sub Division,
Pudukottai District and others), would submit that an order of remand is
not rendered illegal merely because the learned trial Judge has not
recorded the explanation offered by the accused in the order itself. It is
his further submission that the statutory scheme does not countenance the
proposition that an accused who has breached his undertaking must be
deemed to continue on the earlier bail until a separate order cancelling it
is passed. According to him, such an interpretation would place an
accused in a non-bailable offence in a more advantageous position than
one accused of a bailable offence.
11. The learned Government Advocate (Crl. Side) would also submit
that, in the event of the order of remand being set aside and the petitioner
being set at liberty, there is every likelihood of his absconding. He would
therefore pray for dismissal of the petition.
__________
Page 5 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
12. This Court has heard the learned counsel on either side and
perused the materials available on record.
13. The petitioner is facing charges under Sections 147, 294(b), 323,
324 and 506(ii) IPC read with Sections 3(1)(r), 3(1)(s), 3(1)(x), 3(1)(xi)
and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 and had been enlarged on regular bail. On
account of his non-appearance on 03.08.2024, a non-bailable warrant was
issued, which was executed on 19.05.2026, whereupon he was arrested,
produced before the trial Court and remanded to judicial custody on the
very same day. These facts are not in controversy.
14. A reading of the impugned order discloses that the trial Court has
recorded the ingredients requisite for an order of remand under Section
167(2) Cr.P.C. and has proceeded on that footing. In reality, however, the
petitioner was produced in execution of a non-bailable warrant issued
during the pendency of the trial for his non-appearance. The remand,
therefore, ought to have been one under Section 309(2) Cr.P.C. and not
under Section 167(2) Cr.P.C.
15. The considerations which weigh with a Court while remanding
an accused under Section 167(2) Cr.P.C. are the legality of the arrest,
communication of the grounds of arrest, the necessity of detention for the
purpose of investigation, whether custody is required till the investigation
__________
Page 6 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
is completed, and whether there is any likelihood of the accused
tampering with witnesses or not co-operating with the investigation.
Quite distinct are the considerations when an accused is secured on a
non-bailable warrant during trial and produced before the trial Court. In
such a situation, the trial Court is required to examine the past conduct of
the accused, whether he had jumped bail on earlier occasions, whether the
reason or explanation offered for his non-appearance is genuine and
acceptable, and whether, if released, he is likely to abscond or would co-
operate with the trial in future.
16. The Court is also required to consider whether continued custody
of the accused is necessary during the pendency of the trial in order to
ensure its completion. It is thus manifest that the requirements for an
order of remand under Section 167(2) Cr.P.C. and those under Section
309(2) Cr.P.C. operate in entirely different fields.
17. In the case on hand, the impugned order proceeds as though the
petitioner had been arrested by the police during the course of
investigation and produced before the Court in that context. This, in the
considered view of this Court, betrays a clear non-application of mind.
18. The Hon'ble Supreme Court, in State through CBI v. Dawood
Ibrahim Kaskar and others, reported in (2000) 10 SCC 438 , has held
thus in paragraph No.11:
__________
Page 7 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
"11. ....We are therefore of the opinion that the words
"accused if in custody" appearing in Section 309(2) refer and
relate to an accused who was before the Court when cognizance
was taken or when enquiry or trial was being held in respect of
him and not to an accused who is subsequently arrested in
course of further category is concerned he can be remanded to
judicial custody only in view of Section 309(2), but he who
come under the second category will be governed by Section
167 so long as further investigation continues......"
19. The interplay between Sections 446 and 446-A Cr.P.C. fell for
consideration before this Court in Prabakaran v. State, rep. by the
Inspector of Police, Kavindapadi Police Station, Erode District,
reported in (2010) 1 CTC 585, wherein it was held as follows in
paragraph Nos.14 and 15:
" 14. A close scrutiny of Section 446 of the Criminal Procedure
Code in the absence of Section 446-A, would go to show that
despite the breach of the bond by the accused, the bond does
not stand cancelled and such cancellation shall follow only
when the bail order itself is cancelled. Having noticed this, the
Legislature thought it fit to introduce Section 446-A of the
Criminal Procedure Code, which reads as follows:-
446-A. Cancellation of bond and bail bond:-Without prejudice
to the provisions of section 446, where a bond under this Code
is for appearance of a person in a case and it is forfeited for
breach of a condition-
(a) The bond executed by such person as well as the bond, if
any, executed by one or more of his sureties in that case shall
__________
Page 8 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
stand cancelled; and
(b) Thereafter no such person shall be released only on his own
bond in that case, if the Police Officer or the court, as the case
may be, for appearance before whom the bond was executed, is
satisfied that there was no sufficient cause for the failure of the
person bound by the bond to comply with its condition:
Provided that subject to any other provision of this Code he
may be released in that case upon the execution of a fresh
personal bond for such sum of money and bond by one or more
of such sureties as the Police Officer or the court, as the case
may be thinks sufficient.
15. Under the said provision, now it has been declared that if
once the bond is forfeited for breach of a condition, the said
bond shall stand automatically cancelled. Such cancellation
takes place as soon as the Magistrate after affording
opportunity to the accused and the sureties, records his
satisfaction that the bond has been forfeited and that the
explanation of the accused has not been accepted. Thus, no
more order is required to be passed by the Magistrate to cancel
the bond. Until such cancellation takes place, the bond executed
by the accused and the sureties shall survive."
20. A learned Single Judge of this Court, in Pillappan v. State, rep.
by the Inspector of Police, reported in (2018) 3 CTC 156, has held as
under in paragraph Nos.28 and 32:
"28. Sec. 446 essentially deals with sureties for breach of bond
by the accused, whereas, Sec. 446-A deals with the
consequences that would befall the accused himself, upon
__________
Page 9 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
forfeiture, for breach of bond conditions. That is why, Sec. 446-
A begins with the expression "without prejudice to the
provisions of Sec. 446". This means that, without prejudice to
the power of the Court to take action against the sureties under
Sec. 446 of the Code, the Court can deal with the accused
separately under Sec. 446-A of the Code for breach of bond.
When the accused is produced and if he is not able to
satisfactorily give reasons as to why he did not appear before
the Court, then, the Magistrate/Court is required to record an
order of forfeiture and remand the accused to judicial custody
under Sec. 309 of the Code. Thereafter, bail is not a matter of
right even in a case involving a bailable offence. If the accused
is able to give satisfactory reasons for his absence at the time of
his production in execution of the non-bailable warrant /
appearance, then, there is no necessity to remand him to
judicial custody. If the accused seeks time to give his
explanation, he can be remanded to judicial custody pending
enquiry. The order of forfeiture of bond that has been recorded
by the Court will not automatically have any consequence on
the sureties under Sec. 446 of the Code, because, a separate
notice is required to be given to the sureties to show cause as to
why penalty should not be paid by them and only if they are not
able to show cause, can the Court proceed to recover the
penalty as if it were a fine imposed under the Code. Thus, the
consequences of forfeiture of the bond operates differently for
the accused and the sureties. The fact that the accused had been
in abscondence for a long period and that he has not been able
to give satisfactory explanation for his absence at the time of
his production/appearance, is, by itself, a sufficient ground for
forfeiture of the bond. What the Court/Magistrate shall record
is, the period of abscondence, explanation given by the accused
and the reasons for non acceptance. This, by itself, will
__________
Page 10 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
complete the forfeiture proceedings qua the accused. Thus, the
Magistrate has the option to release the accused on his
personal bond with one or more sureties or refuse to release
him. If the Magistrate / Court refuses to release the accused, he
will have to, perforce, remand him to custody under Sec. 309 of
the Code. Thereafter, the accused will have to apply for fresh
bail. The accused would have been granted bail in the earlier
proceedings judging the gravity of the offence, his antecedents
and other factors. In the subsequent bail application, the Court
will have to consider an additional factor, viz., the factum of the
accused having absconded after availing bail. Thus, the
consequences of cancellation of bail and the cancellation of
bail bond vis-a-vis the accused are one and the same. Any other
interpretation of Sec. 446-A would make it otiose. This Court
garners support for this interpretation in the judgment of the
Kerala High Court in Mahesh vs. State of Kerala [2009 SCC
Online Ker. 6601]
...
32. To recapitulate, if an accused on bail, be it in a case
involving a bailable or non-bailable offence, (whether granted
by the superior Court or by the Magistrate), does not appear on
a hearing date and no petition is filed for dispensing with his
presence, non-bailable warrant can be issued under Sec. 89 of
the Code. On the appearance of the accused or on his
production by the police, what is required to be given is, an
opportunity to him to explain as to why he did not appear from
that particular date onwards. If he gives a satisfactory
explanation, he can be let off by recalling the warrant. If his
explanation is not satisfactory, the Magistrate/Court is required
to record the reasons and give a finding that the bond has been
forfeited. On such finding, the bail bond gets automatically
__________
Page 11 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
cancelled. Thereafter, the Magistrate/Court cannot release him
on his own bond in view of the bar under Sec.446-A(b). He may
be released under the proviso to Sec.446-A(b) on his executing
a bond with fresh sureties, or, he may be remanded to custody
under Sec. 309 of the Code. If he is so remanded to judicial
custody, he should apply for fresh bail. Thereafter, the
Magistrate/Court can issue notice under Sec. 446 of the Code to
the sureties separately for payment of penalty. In the bail
application filed afresh by the accused either under Sec.436 or
437 or 439 of the Code, the Court will have to consider not only
the usual parameters for grant of bail but also the additional
factor, viz., his abscondence."
21. The principles that emerge from the aforesaid pronouncements of
the Hon'ble Supreme Court and of this Court may be culled out as
follows:
(a) Where an accused on bail in a bailable/ non-bailable
offence fails to appear on a hearing date without seeking to dispense
with his presence, the trial Court may issue a non-bailable warrant to
secure his presence, as contemplated under Section 89 Cr.P.C.
(Section 92 BNSS).
(b) Upon his arrest and production before the Court, the
accused shall be afforded an opportunity to explain why he did not
appear from the particular date onwards.
(c) Should the accused seek time to offer his explanation, he
may be remanded to judicial custody pending such enquiry.
__________
Page 12 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
(d) If the explanation is found satisfactory, the trial Court may
let him off by recalling the non-bailable warrant in exercise of its
power under Section 70(2) Cr.P.C. (Section 72(2) BNSS).
(e) If the explanation is not satisfactory, the trial Court shall
record its reasons and render a finding that the bond stands forfeited.
(f) Such a finding of forfeiture does not, by itself, visit the
sureties with any consequence under Section 446 Cr.P.C.; a separate
notice to the sureties is necessary to initiate proceedings under that
provision.
(g) Independent of any proceedings under Section 446 Cr.P.C.,
the Court is competent to proceed against the accused under Section
446-A Cr.P.C. for breach of the bond.
(h) Once the Court records a finding that the bail bond stands
forfeited, the bail bond is cancelled automatically, and the bail, as a
necessary corollary, also stands cancelled.
22. Upon such cancellation, the accused can be released only on
execution of a fresh personal bond or surety bond in terms of the proviso
to Section 446-A Cr.P.C. Where the bail bond and the order of bail stand
cancelled, the remand of the accused is one under Section 309(2) Cr.P.C.,
and not under Section 167(2) Cr.P.C.
23. Tested on the anvil of the above principles, it is evident that the
__________
Page 13 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
trial Court, oblivious of the distinction between a remand under Section
167(2) Cr.P.C. and one under Section 309 Cr.P.C., has passed a
mechanical order, without affording the petitioner any opportunity to
explain his absence from the particular date onwards. Nor has the trial
Court recorded any finding that the bail bond stood forfeited. The
petitioner has already been in judicial custody for more than 180 days. In
such circumstances, a mere setting aside of the impugned order with a
remand of the matter to the trial Court would not subserve the ends of
justice. Accordingly, this Court passes the following order:
(a) The order of remand dated 19.05.2026 passed against the
petitioner by the learned Principal Sessions Judge, Karur, Karur
District in S.C.No.75 of 2022, is set aside.
(b) The petitioner shall be released on bail, on condition that he shall
appear before the trial Court daily at 10.30 a.m. until further orders,
and on such bond and sureties as may be fixed by the trial Court, so
as to ensure his uninterrupted participation in the trial.
(c) With the above observations, this Criminal Original Petition
stands allowed.
16-10-2026
Index: Yes/No
Speaking/Non-speaking order
__________
Page 14 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
Neutral Citation: Yes/No
msa
Note: Issue order copy today (16.10.2026)
To
1.The Principal Sessions Judge
Karur, Karur District
2. The Deputy Superintendent of Police,
Avarakurichi Sub Division
Karur District
3. The Inspector Of Police,
Vellayuthampalayam Police Station
Karur District
Crime No.251 of 2022
4.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
Copy To
The Superintendent of Prison/ In-charge of Prison
Sub Jail, Kulithalai
Karur District
__________
Page 15 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )
CRL OP(MD) No.22987 of 2026
R.VIJAYAKUMAR, J.
msa
CRL OP(MD) No.22987 of 2026
16-10-2026
__________
Page 16 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/10/2026 03:56:13 pm )