Jaildar Singh vs The State
2022 Latest Caselaw 15480 Mad

                                                                                  Crl.O.P.No.21969 of 2022

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED: 19.09.2022

                                                              CORAM:

                                  THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.O.P.No.21969 of 2022 and
                                                  Crl.MP.No.14198 of 2022

                     Jaildar Singh                                          ...             Petitioner

                                                          Versus

                     The State, represented by
                     Inspector of Police,
                     Annadanapatti Police Station,
                     Salem District
                     (crime No.575 of 2002)                                 ...             Respondent


                     PRAYER: Criminal Original Petition has been filed under Section 482 of

                     the Code of Criminal Procedure to call for the records in remand order dated

                     06.04.2022 in PRC.No.14 of 2015 on the file of the Judicial Magistrate-IV,

                     Salem and to quash the same as illegal and release the petitioner forthwith.


                                      For Petitioner      :     Mr.R.Sankarasubbu

                                      For Respondent      :     Mr.E.Raj Thilak,
                                                                Additional Public Prosecutor



                     1/10

https://www.mhc.tn.gov.in/judis
                                                                               Crl.O.P.No.21969 of 2022

                                                            ORDER

This criminal original petition has been filed praying to set

aside the remand order dated 06.04.2022 in PRC.No.14 of 2015 on the file

of the learned Judicial Magistrate-IV, Salem and to release the petitioner

forthwith.

2. The learned counsel for the petitioner would submit that the

petitioner is an accused in crime No.575 of 2002 registered for the offence

under Sections 147, 148, 149, 323, 324, 302 of IPC and Section 3 r/w

25(i)(b) and 27(1) of Indian Arms Act on the file of the respondent. In

pursuant to the registration of FIR, the petitioner was arrested and remanded

to judicial custody. Subsequently, he was released on bail on default ground

as contemplated under Section 167(2) of Cr.P.C. After completion of

investigation, final report was filed and the same has been pending for

committal in PRC.No.14 of 2015 on the file of the learned Judicial

Magistrate No-IV, Salem. However, the learned Magistrate, without

issuance of summons, straight away issued non bailable warrant and the

petitioner was arrested and remanded to judicial custody.

2.1 He further submitted that once the petitioner was granted

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21969 of 2022

statutory bail as contemplated under Section 167(2) of Cr.P.C., the bail

granted to him is not automatically cancelled. After cancellation of bail

granted to the petitioner, he can be remanded to judicial custody. After

granting bail to the petitioner under Section 167(2) of Cr.P.C., even after

issuance of non bailable warrant against him, he cannot be arrested and

remanded to judicial custody without cancelling the statutory bail granted

under Section 167(2) of Cr.P.C. However, on execution of NBW issued

against the petitioner, he was arrested and remanded to judicial custody on

06.04.2022 in PRC.No.14 of 2015 on the file of the learned Judicial

Magistrate-IV, Salem. In support of his contention, he relied upon the

judgment of the Hon'ble Division Bench of this Court passed in

Crl.A.No.226 of 2022 dated 26.08.2022. The Hon'ble Division Bench of

this Court cited the judgment of the Hon'ble Supreme Court of India in the

case of Raghubir Singh and Others Vs. State of Bihar reported in (1986) 4

SCC 481, wherein it is held as follows:

“20. ...... The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety. The argument of the learned counsel for the State of Bihar was that the order for release on bail

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21969 of 2022

stood extinguished on the remand of the accused to custody under Section 309(2) of the Code of Criminal Procedure. There is no substance whatever in this submission. 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).

..... ..... .....

22. The result of our discussion and the case-law is this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2).”

3. Heard, the learned counsel for the petitioner and the learned

Additional Public Prosecutor appearing for the respondent.

4. The Hon'ble Division Bench of this Court, in the above

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21969 of 2022

judgment, held that the default bail granted under Section 167(2) of Cr.P.C.

cannot be defeated by lapse of time, the filing of charge sheet or by remand

to custody under Section 309(2) of Cr.P.C. Whereas the petitioner was

arrested and remanded to judicial custody in pursuant to the registration of

FIR in crime No.575 of 2002 on the file of the respondent. Subsequently,

the petitioner was released on default bail as contemplated under Section

167(2) of Cr.P.C. While he was in bail, he involved in so many cases and in

fact, in some of the cases he was convicted and sentenced to imprisonment.

In some of the cases, trial is pending and non bailable warrant is also

pending for execution as against the petitioner. As far as crime No.575 of

2002, it is a sensational murder case for gain, in which two persons were

murdered and gold jewels i.e. 289 sovereigns and cash were stolen. There

are totally 18 accused. So far, eight accused persons including the petitioner

were secured and charge sheet filed before the trial court. In fact, 10

accused persons are still absconding. As far as the petitioner, he is the

master brain behind the entire crime and he is a native of Punjab State. He

along with his associates started to operate in Tamilnadu in the year 1995.

While being so, the petitioner failed to appear before the trial court in

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21969 of 2022

PRC.No.14 of 2015 on the file of the Judicial Magistrate-IV, Salem.

Initially, he was issued summons and even then, he failed to appear and as

such, the court below issued non bailable warrant. On execution of non

bailable warrant, he was arrested and produced before the trial court on

28.05.2014. Thereafter, the case was split up and new PRC number was

assigned.

5. Insofar as the petitioner, the case was split up from PRC.No.25

of 2009 and new PRC number was assigned in PRC.No.14 of 2015 and

thereafter, he was remanded to judicial custody. In fact, the petitioner filed

bail petition on two occasions and the same were also dismissed by this

Court. While being so, after several months, the petitioner had challenged

the order of remand on the ground that once the petitioner was granted bail

on the ground of default as contemplated under Section 167(2) of Cr.P.C.,

without cancelling the bail, he cannot be remanded even while execution of

non bailable warrant. The police officer while exercising the power vested

under Section 309(2) of Cr.P.C., the court below remanded the petitioner to

judicial custody.

6. After taking cognizance, the court may either issue summons or

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21969 of 2022

issue warrants in lieu of summons to secure the presence of the accused as

the case may be. The said warrant may be with endorsement as provided

under Section 71 of Cr.P.C. or without such endorsement. Either on

receiving the summons or in execution of the warrant or on his volition if

the accused is present in court, then the court has got two options. Under

section 309(2) of Cr.P.C., the court for reasons to be recorded may either

postpone the commencement of enquiry or hearing or adjourn the same and

then, the court may remand the accused to custody. As the court is of the

opinion that the detention of the custody is absolutely necessary for the

smooth conduct of the enquiry or trial, the court may under Section 309(2)

of Cr.P.C., remand the accused to judicial custody without resorting Section

88 of Cr.P.C. Therefore, it is absolutely the discretion of the court either to

remand the accused to custody under Section 309(2) of Cr.P.C. or to direct

him to execute bond with or without sureties under Section 88 of Cr.P.C. If

once the Court or the Magistrate remands the accused under Section 309 of

Cr.P.C. in the circumstances enumerated above, the remedy for the accused

is to apply for bail.

7. In fact, the petitioner approached this Court for bail in

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Crl.OP.Nos.11706 of 2022 and 17802 of 2022 on two occasions. Both the

petitions were dismissed by this Court on 05.07.2022 and 10.08.2022

respectively. After being failed before this Court in bail petitions, the

petitioner now challenged the order of remand on new ground. Therefore,

the judgment of the Hon'ble Division Bench of this Court cited by the

petitioner is not helpful to the case on hand.

8. In view of the above, this criminal original petition is

dismissed. Consequently, connected miscellaneous petition is closed.

19.09.2022 Internet:Yes Index:Yes/No Speaking/Non speaking order lok

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21969 of 2022

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21969 of 2022

G.K.ILANTHIRAIYAN. J,

lok

To

1.The learned Judicial Magistrate-IV, Salem

2.Inspector of Police, Annadanapatti Police Station, Salem District

3.The Public Prosecutor, High Court of Madras

Crl.O.P.No.21969 of 2022

19.09.2022

https://www.mhc.tn.gov.in/judis