Madras HC Grants Bail To Accused Held Over 30 Days After Missing Hearing, Finding He Was Not Given A Chance To Explain His Absence

In brief

The question

1. Whether the trial court could remand the petitioner after rejecting his request to recall the non-bailable warrant without first giving him an opportunity to explain his absence.

The court held

The High Court set aside the remand order dated 9 October 2026 and directed that the petitioner be released on bail, subject to appearing before the trial court on every hearing date and complying with the bond and surety terms fixed by that court.

It also directed

The Criminal Original Petition was disposed of.

01Facts

The petitioner, A8 in a pending Special Sessions Case, was facing trial for offences under the IPC and the SC/ST (Prevention of Atrocities) Act.

p. 2 · ¶ 2

After he failed to appear on 21 September 2026, the trial court issued a non-bailable warrant. He surrendered on 9 October 2026 and sought its recall, but the court dismissed his request and remanded him to judicial custody.

p. 2 · ¶ 3

The petitioner contended that his absence was due to illness, was not wilful, and that the remand order was made without giving him an opportunity to explain.

p. 3 · ¶ 5

At the time of the High Court’s consideration, he had been in judicial custody for more than 30 days.

p. 4 · ¶ 7

02Issues

i.1. Whether the trial court could remand the petitioner after rejecting his request to recall the non-bailable warrant without first giving him an opportunity to explain his absence.

pp. 4–5 · ¶ 8–9

ii.2. Whether the petitioner’s continued custody and the circumstances of the remand justified setting aside the order and directing his release on bail.

p. 5 · ¶ 9–10

03Law Applied

The Court relied on the principles set out in S. Mahesh v. State of Tamil Nadu, Crl.O.P.(MD) No. 23354 of 2026, dated 16 October 2026.

pp. 4–5 · ¶ 8

Under those principles, an accused produced after arrest on a non-bailable warrant must be given an opportunity to explain the failure to appear; if the explanation is unsatisfactory, the court must record reasons and a finding that the bail bond is forfeited. A finding of forfeiture cancels the bond and bail, while remand following cancellation is under Section 309(2) Cr.P.C.; the cited precedent identifies Sections 89 and 70(2) Cr.P.C., and their BNSS counterparts, Sections 92 and 72(2), in relation to issuing and recalling warrants.

pp. 4–5 · ¶ 8

The High Court also noted that the trial court had not recorded a finding of forfeiture.

p. 5 · ¶ 9

Provisions in the judgment · 17 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528 Section 92 Section 72

Indian Penal Code, 1860 Section 147 Section 148 Section 341 Section 294 Section 324 Section 307 Section 506

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 3

Code of Criminal Procedure, 1973 Section 317 Section 89 Section 70 Section 446 Section 309 Section 167

04Reasoning

The trial court rejected the request to recall the warrant and remanded the petitioner without affording him an opportunity to explain his absence. It also did not record that his bail bond stood forfeited.

p. 5 · ¶ 9

Applying the procedure stated in S. Mahesh, the High Court found the remand order deficient.

p. 5 · ¶ 9

Given that the petitioner had already spent more than 30 days in custody, it concluded that simply setting aside the order and remitting the matter to the trial court would serve no purpose.

pp. 4–5 · ¶ 7–9