Accused produced on non-bailable warrant must get a chance to explain absence before bail is cancelled, Madras HC rules

The petitioner, Accused No. 6 in a pending sessions trial, had been granted regular bail on 7 July 2022; that order had not been cancelled or set aside.

After he failed to appear, the trial court issued a non-bailable warrant on 3 August 2024. On his production following arrest on 19 May 2026, the trial court remanded him to judicial custody. His subsequent bail applications were dismissed. He challenged the remand order, contending that his bail remained in force and that he had not been given an opportunity to explain his absence.

Whether the trial court could remand the petitioner to custody under Section 167(2) Cr.P.C. when he was produced pursuant to a non-bailable warrant during trial.

Whether the trial court could remand him without first giving him an opportunity to explain his non-appearance and recording a finding that his bail bond stood forfeited.

The Court held that remand following production on a non-bailable warrant issued during trial is governed by Section 309(2) Cr.P.C., not Section 167(2), which concerns remand in the context of investigation.

Under Sections 89 and 70(2) Cr.P.C. (corresponding to Sections 92 and 72(2) BNSS), an accused who fails to appear may be secured by warrant and, upon production, must be allowed to explain the absence. If the explanation is unsatisfactory, the court must record reasons and find that the bond is forfeited; upon that finding, the bond and bail stand cancelled under Section 446-A Cr.P.C. The court may then release the accused on a fresh bond under the provision’s proviso or remand him under Section 309(2) Cr.P.C.

The Court relied on Prabakaran v. State, (2010) 1 CTC 585, and Pillappan v. State, (2018) 3 CTC 156, concerning forfeiture, cancellation of the bond, and the required opportunity and finding.

The petitioner had been produced in execution of a trial-stage non-bailable warrant, but the trial court’s order treated the matter as a remand under Section 167(2) Cr.P.C. and did not address the distinct requirements applicable under Section 309(2).

The court had neither afforded the petitioner an opportunity to explain his absence nor recorded reasons or a finding of bond forfeiture. The remand was therefore mechanical and legally defective. Given that the petitioner had already spent more than 180 days in custody, merely setting aside the order and sending the matter back would not serve the ends of justice.

It directed that the petitioner be released on bail, subject to appearing before the trial court daily at 10:30 a.m. until further orders and furnishing such bond and sureties as the trial court may fix.