Mahesh S vs The State of Tamil Nadu
- Court
- Madras High Court
CRL OP(MD) No.23354 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. 23354 of 2026
CNR:{HCMD011429592026}
S.Mahesh ....Petitioner/Accused
Vs
1. The State of Tamil Nadu Rep.by
The Deputy Superintendent of Police,
st
Kanyakumari District. ....1 Respondent/Complainant
2. State Of Tamilnadu Rep By
The Inspector Of Police,
Suchindram Police Station,
Kanyakumari District.
nd
(Crime No. 337 of 2022) ...2 Respondent/Complainant
rd
3. Sree Sukin ...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 14.07.2026 made in
S.C.No. 03 of 2025 arising out of Crime No.337 of 2022 on the file of the
learned Special Court for trial of Cases under SC/ST (Prevention of
Atrocities) Act, Kanyakumari District at Nagercoil and set aside the same
as illegal and consequently direct the release of the petitioner by giving
effect to the earlier bail order and thus render justice.
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For Petitioner : Mr.C.S.Lenin
For M/s.T.Wins
For Respondents : Mr.B.Arun
Government Advocate (Crl.side) for R1 & R2
ORDER
The petitioner, who stands arraigned as the accused in S.C.No.3 of
2025 on the file of the Special Court for Trial of Cases under the SC/ST
(Prevention of Atrocities) Act, Kanyakumari District at Nagercoil, has
invoked the inherent jurisdiction of this Court, assailing the order dated
14.07.2026, by which the trial Court remanded him to judicial custody
upon his being secured in execution of a non-bailable warrant issued by
that Court on 13.03.2026.
2. The petitioner faces charges for the offences punishable under
Sections 294(b) and 506(i) of the Indian Penal Code and Sections 3(1)(r)
and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
3. The facts, in brief, are that the petitioner was enlarged on bail by
the competent Court, and that order has, till date, neither been cancelled
nor set aside. On completion of investigation, a final report came to be
filed and was taken on file as S.C.No.3 of 2025. During the pendency of
the trial, the petitioner failed to appear, and consequently a non-bailable
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warrant was issued on 07.04.2026. The warrant was executed on
14.07.2026, and on the very same day, the petitioner was remanded to
judicial custody by the impugned order.
4. The petitioner thereafter moved Crl.M.P.No.59 of 2026 before the
trial Court under Section 483 of BNSS, which came to be dismissed on
18.08.2026. Aggrieved, he preferred Crl.A.(MD) No.1075 of 2026 before
this Court. By order dated 11.09.2026, this Court dismissed the said
appeal, however reserving liberty to the appellant to challenge the order
of remand on the ground that the earlier bail had not been cancelled in the
manner laid down in Pillappan Vs. State represented by the Inspector of
Police, reported in (2018) 3 CTC 156. It is pursuant to the said liberty
that the present petition has been laid under Section 528 of BNSS,
questioning the order of remand dated 14.07.2026.
5. The learned counsel for the petitioner would contend that the
order of regular bail granted by the trial Court continues to hold the field,
and therefore, the petitioner could not have been remanded to judicial
custody without that order first being cancelled. It is further submitted
that, even assuming that the petitioner had failed to appear and a non-
bailable warrant had been issued, upon his production before the Court in
execution of the warrant, he ought to have been afforded an opportunity
to explain the circumstances that prevented his appearance. The trial
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Court, without affording any such opportunity, has passed a mechanical
order of remand, which is unsustainable in law.
6. The learned counsel would further point out that the petitioner has
been languishing in judicial custody for more than 90 days. In support of
his submissions, reliance is placed upon the decision of this Court in
Pillappan (supra), which was subsequently followed in Palanivel Vs.
State rep. by the Inspector of Police, Veeranam Police Station, Salem
District, reported in 2019 (3) MWN (Cr.) 57.
7. Per contra, the learned Government Advocate (Crl. Side)
appearing for the respondent police, placing reliance upon paragraph
Nos.16 and 17 of the order of this Court in Suresh Vs. The State of
Tamil Nadu rep. by the Deputy Superintendent of Police,
Ponnamaravathi Sub Division, Pudukottai District and others (Crl.O.P.
(MD) No.21222 of 2026, dated 01.10.2026) , would submit that an order
of remand does not stand vitiated merely because the learned trial Judge
has not recorded the explanation offered by the accused in the remand
order. It is his further contention that the statutory scheme does not lend
itself to the proposition that an accused who has violated his undertaking
must be deemed to continue on the earlier bail until a separate order
cancelling it is passed. According to the learned Government Advocate,
any such interpretation would place an accused charged with a non-
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bailable offence on a more advantageous footing than one charged with a
bailable offence.
8. The learned Government Advocate would also bring to the notice
of this Court that as many as five criminal cases, including one under
Section 302 of IPC, are pending against the petitioner. It is therefore
apprehended that, if the order of remand is set aside and the petitioner is
set at liberty, he is likely to abscond. On these grounds, he would seek
dismissal of the petition.
9. This Court has heard the learned counsel appearing on either side
and has carefully gone through the materials placed on record.
10. The undisputed facts are that the petitioner, who is charged with
the offences under Sections 294(b) and 506(i) of IPC and Sections 3(1)(r)
and 3(1)(s) of the SC/ST (Prevention of Atrocities) Act, 1989, had been
granted regular bail. Owing to his non-appearance on the hearing date,
namely 07.04.2026, a non-bailable warrant was issued, which was
executed on 14.07.2026, whereupon the petitioner was arrested, produced
before the trial Court, and remanded to judicial custody on the same day.
11. It would be apposite to extract the impugned order of remand
passed at 7.42 p.m. on 14.07.2026, which reads as follows:
"14.07.2026 at 7.42 p.m.
Accused produced execution of NBW through HC
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No.2073 Mr.Bala Murali HC No.2995 Rooban Glitus at my
residence. Verified the identification of accused.
On perusal of records NBW pending against accused. Reasons
for arrest was explained to accused. No complaint against
police ill-treatment. Arrest informed to wife of accused. As per
medical for Accused is fit for remand. NBW pending against
accused. No visible injury found on Accused. Explained Legal
Aid Service. Accused was remanded into judicial custody till
24.07.2026".
12. A reading of the above order discloses that the trial Court has
merely recorded the ingredients and formalities that are required for an
order of remand under Section 167(2) of Cr.P.C. However, the remand in
the present case was, in substance, consequent upon the execution of a
non-bailable warrant issued during the pendency of the trial for the non-
appearance of the petitioner. Such a remand, therefore, falls not under
Section 167(2) but under Section 309(2) of Cr.P.C.
13. While passing an order of remand under Section 167(2) of
Cr.P.C., the Court is required to satisfy itself as to the legality of the
arrest, whether the grounds of arrest have been communicated, whether
detention is necessary for the purpose of investigation, whether custody is
required till the investigation is completed, and whether there is any
likelihood of the accused tampering with witnesses or not co-operating
with the investigation. On the other hand, where an accused is secured in
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execution of a non-bailable warrant during the trial and is produced
before the trial Court, the considerations are altogether different. The
Court must then examine the past conduct of the accused, whether he had
defaulted in appearance on earlier occasions, whether the reasons or
explanation offered by him for his non-appearance are bona fide and
acceptable, and whether, if released, he is likely to abscond or would co-
operate with the trial in future.
14. The Court must also consider whether the continued custody of
the accused is warranted during the pendency of the trial so as to ensure
its completion. It is thus manifest that the parameters governing an order
of remand under Section 167(2) of Cr.P.C. and those governing an order
of remand under Section 309(2) of Cr.P.C. are entirely distinct.
15. In the case on hand, the impugned order proceeds as though the
petitioner had been arrested by the police during investigation and
produced before the Court at that stage. This, in the considered view of
this Court, betrays a clear non-application of mind.
16. The Hon'ble Supreme Court, in State through CBI Vs. Dawood
Ibrahim Kaskar and others, reported in (2000) 10 SCC 438 , has held in
paragraph No.11 as follows:
“11.....We are therefore of the opinion that the words
"accused if in custody" appearing in Section 309(2) refer and
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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......."
17. This Court, while examining the interplay between Sections 446
and 446-A of Cr.P.C. in Prabhakaran Vs. State rep. by the Inspector of
Police, Kavindapadi Police Station, Erode District, reported in (2010) 1
CTC 585, has held in paragraph Nos.14 and 15 as follows:
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 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
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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."
18. A learned Single Judge of this Court in Pillappan Vs. State
represented by the Inspector of Police, reported in (2018) 3 CTC 156 ,
has held in paragraph Nos.28 and 32 as follows:
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
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
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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 asbcondence 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
complete the forfeiture proceedings qua the accused. Thus, the
Magistrate has the option to release the accused on his
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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
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
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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".
19. The principles that emerge from the above pronouncements of
the Hon'ble Supreme Court and of this Court may be summarised thus:
(a) Where an accused who is on bail in a bailable/ non-bailable
offence fails to appear on a hearing date without seeking
dispensation of his presence, the trial Court may issue a non-bailable
warrant to secure his presence under Section 89 of Cr.P.C. (Section
92 of BNSS).
(b) Upon his arrest and production before the Court, the
accused shall be afforded an opportunity to explain why he failed to
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.
(d) If the explanation is found satisfactory, the trial Court may
recall the non-bailable warrant and let him off, invoking Section
70(2) of Cr.P.C. (Section 72(2) of BNSS).
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(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 an order of forfeiture of the bond shall not, by itself,
visit the sureties with any consequence under Section 446 of Cr.P.C.;
a separate notice to the sureties is required to initiate proceedings
under that provision.
(g) Independent of any proceedings under Section 446 of
Cr.P.C., the Court is competent to proceed against the accused under
Section 446-A of Cr.P.C. for breach of the bond.
(h) Once the Court records a finding that the bail bond has
been forfeited, the bail bond stands automatically cancelled, and
consequently, the bail also stands cancelled.
20. Once the bail stands cancelled, the accused may be released
only upon executing a fresh personal bond or surety bond in terms of the
proviso to Section 446-A of Cr.P.C. Where the bail bond and the order of
bail stand cancelled, the remand of the accused would be under Section
309(2) of Cr.P.C., and not under Section 167(2) of Cr.P.C.
21. Applying the above principles to the facts of the present case,
this Court finds that the trial Court, oblivious to the distinction between a
remand under Section 167(2) and one under Section 309 of Cr.P.C., has
passed a mechanical order, without affording the accused any opportunity
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to explain his non-appearance from the relevant 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 90 days. In
such circumstances, this Court is of the view that merely setting aside the
impugned order and remitting the matter to the trial Court would serve no
useful purpose. Accordingly, the following orders are passed:
(a) The order of remand dated 14.07.2026 passed against the
petitioner by the Special Court for Trial of Cases under the SC/ST
(Prevention of Atrocities) Act, Kanyakumari District at Nagercoil in
S.C.No.3 of 2025 is hereby set aside.
(b) The petitioner shall be released on bail, on condition that
he shall appear before the trial Court at 10.30 a.m. every day until
further orders, and on such terms as to bond and sureties as may be
fixed by the trial Court, so as to secure his continued 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
Neutral Citation: Yes/No
msa
Note: Issue order copy today (16.10.2026)
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To
1.The Special Court for trial of Cases
under SC/ST (Prevention of Atrocities) Act,
Kanyakumari District at Nagercoil
2. The Deputy Superintendent of Police,
Kanyakumari District.
3. The Inspector Of Police,
Suchindram Police Station,
Kanyakumari District.
(Crime No. 337 of 2022)
4.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
Copy to:
The Superintendent of Prison
District Jail at Nagercoil
Kanyakumari District
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R.VIJAYAKUMAR, J.
msa
CRL OP(MD) No.23354 of 2026
16-10-2026
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