CRL RC/2108/2026 of Rajkumar Vs State rep by Inspector of Police on 23 September 2026

ORDER

This Criminal Revision Petition challenges the order passed by the learned Special Judge, II Additional Special Court for the Trial of Cases under NDPS Act, Chennai, dated 02.09.2026, in C.C.No.319 of 2024, remanding the

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CRL RC No. 2108 of 2026

petitioner/A1 and the other accused under Section 309 of Cr.P.C., since the learned counsel appearing for accused A1, A2, A3 and A5 had not cross- examined PW1 despite specific instructions.

2. Mr.R.C.Paul Kanagaraj, learned counsel for the petitioner/A1, would submit that the petitioner and the other accused were earlier released on bail and they had complied with the conditions imposed while granting them bail; that on 02.09.2026, PW1 was examined in-chief and since the learned counsel for A1, A2, A3 and A5 had not cross-examined PW1, the said accused were remanded by invoking Section 309 of Cr.P.C., except A4, whose counsel had cross-examined the witness in part.

3. In order to obtain clarification from the learned Special Judge as to under what circumstances he had remanded the accused under Section 309 of Cr.P.C. for not cross-examining the witness, this Court had called for a report from the learned Special Judge. The learned Judge has submitted a report dated 23.9.2026 and the relevant paragraphs of the said report read as follows:

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4. The respondent Police have also filed a counter affidavit stating that since the learned counsel for A1, A2 A3 and A5 had not cross-examined PW1, the accused were remanded under Section 309 of Cr.P.C.

5. The impugned order passed by the learned Special Judge, II Additional Special Court for the Trial of Cases under NDPS Act, Chennai, reads as follows: “Ex. P1 to P17 marked & M.O.s. Counsel for Al, A2, A3 & A5 were not Not Ready to cross examine PWl in spite of specific instructions. Counsel for A4 Crossed in part and prayed time for Contd. Since Al, A2, A3 & A5 are not ready to conduct the case they are remanded to custody by invkg S. 309 CrPC.”

6. From the impugned order, it is very clear that the learned Special Judge, irked by the fact that the learned counsel for A1, A2, A3 and A5 had not cross-examined PW1, had remanded the petitioner/A1 along with A2, A3 and A5 by invoking Section 309 of Cr.P.C.

7. The explanation now offered by the learned Special Judge is that he had invoked Explanation 1 to Section 309 of Cr.P.C. Explanation 1 to Section 309 of Cr.P.C. reads as follows:

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“Explanation 1 – If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence my be obtained by a remand, this is a reasonable cause for a remand.”

8. Firstly, even assuming that Section 309 of Cr.P.C. could be invoked for remand, the learned Judge ought to have seen that only if it appears that further evidence may be obtained by remand, the said provision can be invoked. There is no such finding in the impugned order. However, the fundamental error committed by the learned Judge is that, by this remand, he had cancelled the bail of the accused without satisfying the conditions for the cancellation of bail.

9. The Hon’ble Supreme Court in Raghubir Singh v. State of Bihar, reported in (1986) 4 SCC 481, held that if the accused is on bail, the power of remand under Section 309(2) Cr.P.C. cannot be exercised. The relevant extract reads as follows: “20. ….Section 309(2) merely enables the court to “remand the accused if in custody”. It does not empower the court to remand the accused if he is on bail. It does not enable the court to “cancel bail” as it were. That can only be done under Section 437(5) and Section 439(2). When an accused person is granted bail, whether under the proviso to Section 167(2) or under the provisions of Chapter XXXIII the only way the bail may be cancelled is to proceed under Section 437(5) or Section 439(2).”

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This has been followed by this Court in Noorudeen @ Rafi @ Ismail vs State., by an order dated 10.02.2022 [Criminal Appeal No.226 of 2022].

10. The learned Special Judge also failed to take note of proviso (c) to Section 309(2) of Cr.P.C., which reads as follows:- “(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.”

11. If any pleader is not ready to cross-examine a witness, the Court is empowered to dispense with the cross-examination of the said witness and remand of the accused is not an option. The learned Special Judge has also sought to justify the action by stating that when police officials are not present, costs are imposed. Those are not justifications for passing an order in violation of the procedure. Therefore, the explanation offered by the learned Special Judge is not only contrary to his own order remanding the accused, but also contrary to the procedure established by law.

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12. Therefore, the order of remand dated 02.09.2026 is set aside. The petitioner/A1 along with the other accused who were remanded on 02.09.2026, shall be released forthwith, since they have already executed sureties. Accordingly, this Criminal Revision Petition is allowed. 24-09-2026 Neutral Citation: Yes/No ham To

1. The Special Judge, II Additional Special Court for Trial of Cases under NDPS Act, Chennai.

2. The Inspector of Police H6, R.K. Nagar Police Station, Chennai.

3. The Public Prosecutor, High Court of Madras.

4. The Superintendent, Central Prison, Puzhal – II, Chennai.

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SUNDER MOHAN, J. Ham CRL RC No. 2108 of 2026 24-09-2026

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