Accused on bail cannot be jailed merely because lawyer fails to cross-examine witness, Madras High Court rules

The petitioner/A1 and the other accused in C.C. No. 319 of 2024, pending before the II Additional Special Court for Trial of Cases under the NDPS Act, Chennai, had previously been released on bail and had complied with their bail conditions.

On 2 September 2026, PW1 was examined in chief. Although counsel for A1, A2, A3 and A5 were allegedly instructed to cross-examine PW1, they did not do so; counsel for A4 cross-examined PW1 in part and sought time for continuation.

The Special Judge consequently remanded A1, A2, A3 and A5 under Section 309 Cr.P.C., stating that they were “not ready to conduct the case”.

The petitioner challenged the remand order by criminal revision.

The High Court called for a report from the Special Judge, who sought to justify the remand by relying on Explanation 1 to Section 309 Cr.P.C.

1. Whether the trial court could remand accused persons who were already on bail under Section 309 Cr.P.C. merely because their counsel failed or declined to cross-examine a prosecution witness.

2. Whether the trial court could cancel the petitioner’s bail through an order of remand without following the statutory requirements under Sections 437(5) or 439(2) Cr.P.C.

3. Whether, in the absence of counsel being ready to cross-examine a witness, the proper course was to invoke proviso (c) to Section 309(2) Cr.P.C. rather than remand the accused.

Section 309(2) Cr.P.C. permits remand only where the accused is already in custody; it does not authorise the remand or cancellation of bail of an accused who is on bail.

Cancellation of bail must be undertaken under Sections 437(5) or 439(2) Cr.P.C., upon satisfaction of the applicable legal conditions.

Under proviso (c) to Section 309(2) Cr.P.C., where a party or pleader is absent or is not ready to examine or cross-examine a witness, the court may record the witness’s statement and pass appropriate orders, including dispensing with the examination-in-chief or cross-examination; remand of the accused is not the prescribed response.

The Court relied on Raghubir Singh v. State of Bihar, (1986) 4 SCC 481, which held that Section 309(2) does not empower a court to cancel bail by remanding an accused already on bail.

The Court noted that the principle had been followed by the Madras High Court in Noorudeen @ Rafi @ Ismail v. State, Criminal Appeal No. 226 of 2022, order dated 10 February 2022.

The High Court found that the impugned order was prompted solely by the failure of counsel for A1, A2, A3 and A5 to cross-examine PW1, and that the accused had been remanded despite being on bail.

Even assuming Section 309 Cr.P.C. was applicable, the Special Judge had not recorded the necessary finding that further evidence was likely to be obtained by remanding the accused, as contemplated by Explanation 1 to that provision.

More fundamentally, the remand effectively cancelled the existing bail, which could not lawfully be done through Section 309(2) and without recourse to Sections 437(5) or 439(2) Cr.P.C.

The appropriate procedural course, when counsel was not ready to cross-examine a present witness, was to proceed under proviso (c) to Section 309(2), including by dispensing with the cross-examination, and not to place the accused in custody.

The Special Judge’s subsequent justification was therefore inconsistent with the impugned order and contrary to the procedure established by law.

Section 309 Cr.P.C. could not be used to remand the petitioner and the other accused who were already on bail, nor could it be used indirectly to cancel their bail for failure of counsel to cross-examine PW1.

The remand order was set aside, and the petitioner/A1 and the other accused remanded on that date were directed to be released forthwith, their sureties having already been executed. The criminal revision petition was accordingly allowed.