CRL OP(MD)/22987/2026 of Sivasankar Vs The State of Tamil Nadu, Rep on 15 October 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.

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 The appeal therefrom, in Crl.A.(MD) No.1084 of 2026, was withdrawn on 11.09.2026, when it was brought to the notice of this Court that the order of remand itself had been passed contrary to the law declared by this Court in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."

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 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.

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 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:

"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

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 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 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 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.

(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 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

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

R.VIJAYAKUMAR, J. msa CRL OP(MD) No.22987 of 2026 16-10-2026