CRL OP(MD)/23354/2026 of Mahesh S Vs The State of Tamil Nadu on 15 October 2026

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 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

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- 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

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 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 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

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 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 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".

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).

(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 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)

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

R.VIJAYAKUMAR, J. msa CRL OP(MD) No.23354 of 2026 16-10-2026