The Madurai Bench of the Madras High Court has upheld the remand of four police officials to judicial custody after the trial court framed charges including murder under Section 103(1) read with Section 49 of the Bharatiya Nyaya Sanhita (BNS) in a custodial death case. The Court held that bonds executed under Section 91 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) for appearance before the committal court do not amount to bail and cannot protect accused persons once charges for offences punishable with death or imprisonment exceeding seven years are framed. The judgment reinforces the Supreme Court's categorisation in Satender Kumar Antil v. CBI and clarifies that the remedy for an accused remanded after framing of serious charges lies in seeking bail before the competent court, not in challenging the remand order through inherent powers under Section 528 BNSS.
Background & Facts
The Dispute
The case arises from the custodial death of Ajith Kumar, a security guard at the Pathrakali Amman Temple in Madappuram. On 27.06.2025, Nikkitha and her mother Sivagami visited the temple and reported theft of 9.5 sovereigns of gold jewels and Rs. 2,500 from their car, suspecting Ajith Kumar. He was brought to Tiruppuvanam Police Station for enquiry. A special crime team (A1 to A6) under the Deputy Superintendent of Police, Manamadurai Sub-Division, detained him. During investigation, the police officials allegedly assaulted Ajith Kumar, causing injuries that led to his death.
Key Facts
- 27.06.2025: Incident of custodial death of Ajith Kumar at Tiruppuvanam Police Station
- Initial FIR: Crime No. 303 of 2025 registered at Tiruppuvanam Police Station
- Investigation transfer: Division Bench of Madras High Court directed transfer to CBI; Government Order issued by Government of Tamil Nadu
- Initial charge sheet: CBI filed police report against A1 to A6; Chief Judicial Magistrate, Madurai committed case to Sessions Court (S.C. No. 709 of 2025)
- Supplementary charge sheet: Filed against A7 to A10 (police officials) for offences under Sections 61(2) r/w 127(2), 238 and 337 of BNS (maximum punishment up to 7 years)
- CBI did not arrest A7 to A10 during further investigation; noted in supplementary charge sheet
- Committal stage: CJM, Madurai summoned A7 to A10; they appeared and executed bonds under Section 91 BNSS with substantial sureties
- 15.06.2026: This Court dismissed anticipatory bail petitions (Crl.O.P.(MD) Nos. 4859, 5406, 5191, 5192 of 2026), holding Section 91 BNSS bonds sufficient for appearance before committal court; directed CJM not to remand A7 to A10 while committing to Sessions Court
- Case committed to Sessions Judge, Madurai; made over to V Additional Sessions Judge, Madurai
- 29.07.2026 to 10.09.2026: A7 to A10 appeared before trial court on multiple dates pursuant to summons
- 10.09.2026: Trial court framed charges against all ten accused. Against A7 to A10, charges included Section 103(1) r/w 49 BNS (murder with abetment, punishable with death), along with Sections 140(1), 120(2), 127(8), 61(2), 238, 256, 337, 235, 227, 237 r/w 49 BNS
- Same day (10.09.2026): Trial court extended remand of A1-A6 and remanded A7 to A10 to judicial custody under Section 346(1) BNSS
- 28.08.2026: This Court dismissed bail petition of A6 (Crl.O.P.(MD) No. 15373 of 2026), observing that if charges >7 years framed against A7-A10, their Section 91 bonds cannot be treated as bail and they must seek bail before competent court
Procedural History
- 15.06.2026: Common order dismissing anticipatory bail petitions of A7-A10 (Crl.O.P.(MD) Nos. 4859, 5406, 5191, 5192 of 2026)
- 28.08.2026: Bail rejection order for A6 (Crl.O.P.(MD) No. 15373 of 2026)
- 10.09.2026: Impugned remand order by V Additional Sessions Judge, Madurai in S.C. No. 709 of 2025
- September 2026: Four separate Criminal Original Petitions filed under Section 528 BNSS:
- Crl.O.P.(MD) No. 20517 of 2026 (A8/S.P. Ramesh Kumar)
- Crl.O.P.(MD) No. 21736 of 2026 (A9/S. Sivakumar)
- Crl.O.P.(MD) No. 22253 of 2026 (A7/N. Shanmugasundaram)
- Crl.O.P.(MD) No. 22762 of 2026 (A10/G. Ilayaraja)
- 24.09.2026: Intervening application by defacto complainant Naveen Kumar (brother of deceased) allowed in lead case
- 30.09.2026 & 01.10.2026: Matters reserved for orders
- 04.11.2026: Common judgment delivered dismissing all petitions
The Parties' Positions
Petitioners (A7-A10): Contended that (i) they were never arrested during investigation; (ii) they executed bonds under Section 91 BNSS accepted by committal court and this Court; (iii) Tarsem Lal holds such bond ≠ bail but protects appearance; (iv) Satender Kumar Antil requires bail application to be decided on merits, not automatic remand; (v) no specific allegation of witness tampering; (vi) remand without cancelling Section 91 bond violates Section 492 BNSS; (vii) this Court's 15.06.2026 order protects them beyond committal stage.
Respondents (CBI/State): Contended that (i) Section 91 bond protection limited to committal stage per this Court's 15.06.2026 order; (ii) framing of capital charges (Category B per Satender Kumar Antil) changes legal position; (iii) Tarsem Lal distinguishes appearance bond from bail; (iv) Pradeep Ram, Hamida, Pankaj Jain hold bail for minor offence does not extend to major offence added later; (v) trial court has power under Section 346(2) BNSS to remand after framing charges; (vi) accused are police officials with capacity to influence witnesses; (vii) remedy is bail application, not Section 528 petition.
Intervenor (Defacto complainant): Supported prosecution; emphasised witness protection concerns; cited Niranjan Singh on custody including physical surrender; argued Section 528 not appropriate when bail remedy available.
Relief Sought
Petitioners sought: (i) calling for records of remand order dated 10.09.2026; (ii) setting aside remand order insofar as it concerns A7 to A10; (iii) direction for their release from judicial custody to face trial at liberty.
The Legal Issue
The central questions were: (1) Whether a bond executed under Section 91 BNSS for appearance before the committal court continues to protect an accused from remand after the trial court frames charges for offences punishable with death or imprisonment exceeding seven years (Category B under Satender Kumar Antil); (2) Whether the trial court's remand order under Section 346(1) BNSS is illegal when the accused were never arrested, executed appearance bonds, and regularly appeared; (3) Whether the High Court's inherent powers under Section 528 BNSS can be invoked to set aside a judicial remand order when the remedy of seeking bail before the competent court is available.
Arguments Presented
For the Petitioners
Senior Advocates R. Gandhi (A8), T. Lajapathy Roy (A9), S. Chellapandian (A7), and A. Raja (A10) argued that the investigation agency consciously refrained from arresting A7-A10, placing them squarely within the first limb of Satender Kumar Antil (para 89) where "the accused is either not arrested consciously by the prosecution." They relied on Tarsem Lal v. Directorate of Enforcement (para 15.4) holding that a bond under Section 88 CrPC (Section 91 BNSS) "does not amount to grant of bail" but secures appearance. They cited Siddharth v. State of U.P. and Musheer Alam v. State of U.P. for the proposition that an accused not arrested during investigation acquires a right to appear and furnish bail rather than be subjected to formal arrest. They contended the trial court misread this Court's 15.06.2026 order as limited to committal stage, and that remand without cancelling the Section 91 bond under Section 492 BNSS was procedurally flawed. They emphasised no specific material showed witness tampering by A7-A10.
For the Respondent/State
Special Public Prosecutor N. Mohideen Basha and Senior Advocate Nithya Ramakrishnan (for intervenor) argued that this Court's 15.06.2026 order expressly protected A7-A10 only "while committing the case to the Sessions Court." Once charges under Section 103(1) r/w 49 BNS (capital offence) were framed, the case fell under Category B of Satender Kumar Antil, requiring bail application on merits. They cited Pradeep Ram v. State of Jharkhand (paras 11, 12, 18, 19, 23, 29), Hamida v. Rashid (bail for minor offence does not extend to major offence added later), Pankaj Jain v. Union of India (Section 88/91 bond is discretionary, not a right), and Niranjan Singh v. Prabhakar Rajaram Kharote (custody includes physical surrender). They submitted the trial court independently applied judicial mind, recorded reasons (gravity of offence, status as police officials, witness tampering apprehension), and properly exercised Section 346(2) BNSS power. The remedy for aggrieved accused is bail application before Sessions Court or appeal, not Section 528 petition.
The Court's Analysis
The Court examined the chronological progression: supplementary charge sheet alleged offences up to 7 years; CJM took cognizance, accepted Section 91 bonds; this Court dismissed anticipatory bail holding bonds sufficient for committal stage; trial court framed capital charges on 10.09.2026; accused did not file bail applications despite court's query; trial court remanded under Section 346(1) BNSS.
"Here, in our case, the trial Court issued process, upon receipt of the case made over by the Sessions Court to the accused to appear before it. Though the investigating agency did not arrest A7 to A10 during the investigation, wherein they comeup with the charge which carries punishment upto 7 years as per the decision in Arnesh Kumar v. State of Bihar & Anr. (2014) 8 SCC 273, when the punishment for the offence carries upto 7 years a mechanical arrest is not necessary... Once the charge has been framed by the Sessions Court with the major offence of murder with abetment under section 103 r/w 49 of BNS, at that time, the Court has called upon the accused A7 to A10, whether they intend to file bail application or not. It was incumbent upon the accused counsels... to file an appropriate bail application."
The Court held that Tarsem Lal arose from a PMLA private complaint (punishment up to 7 years) and its observation that Section 88/91 bond ≠ bail actually supports the prosecution: if the bond is not bail, it cannot substitute for bail when capital charges are framed. Satender Kumar Antil categorisation is binding: Category B (death, life, >7 years) requires bail application on merits upon appearance. The Court endorsed Pradeep Ram, Hamida, Pankaj Jain, Niranjan Singh establishing that bail for lesser offence does not extend to graver offence subsequently added/framed.
The Court found the trial court's remand order reasoned: it noted A7-A10 are police officials (DSP, Inspector, Sub-Inspectors), the deceased was beaten by special team under DSP (A7), connivance with A1-A6 possible, witness protection inadequate, fair trial required custody. The Court rejected the argument that Section 492 BNSS requires cancellation of Section 91 bond before remand under Section 346, noting Section 346(2) empowers remand "considering the trial aspect" and N. Mani v. Sangeetha Theatre holds incorrect statutory citation does not vitiate order if power exists.
Crucially, the Court held Section 528 BNSS inherent powers cannot bypass the bail jurisdiction: "Once the accused have been remanded to judicial custody with a reasoned order, they must work out their remedy before the appropriate forum for bail and cannot seek to have the remand order be set aside by invoking the inherent powers of this Court under section 528 of BNSS." A10's simultaneous bail application and Section 528 petition constituted impermissible dual remedy.
The Verdict
All four Criminal Original Petitions (Crl.O.P.(MD) Nos. 20517, 21736, 22253, 22762 of 2026) were dismissed. The remand order dated 10.09.2026 passed by the V Additional Sessions Judge, Madurai in S.C. No. 709 of 2025 against A7 to A10 was confirmed. The V Additional Sessions Judge, Madurai was directed to dispose of S.C. No. 709 of 2025 within nine months from receipt of the order copy. All connected miscellaneous petitions were closed. The accused were directed to cooperate with the trial court; delay tactics would invite appropriate orders.
What This Means For Similar Cases
Section 91 BNSS Bond Is Not a Substitute for Bail in Serious Offences
- A bond under Section 91 BNSS executed for appearance before a committal court does not amount to bail and lapses once the case proceeds to trial court and charges for Category B offences (death, life, >7 years) are framed.
- Practitioners must advise clients to file bail applications immediately upon framing of serious charges, even if they previously executed Section 91 bonds and regularly appeared.
- The protection granted by a High Court at the committal stage (directing committal court not to remand) does not bind the Sessions Court after framing of graver charges.
Category B Offences Trigger Mandatory Bail Application on Merits
- Under Satender Kumar Antil, once charges punishable with death, life imprisonment, or >7 years are framed, the accused must surrender and seek bail on merits - the court cannot treat Section 91 bond as bail.
- Prior bail or anticipatory bail dismissal for lesser offences does not extend to subsequently framed capital charges (Pradeep Ram, Hamida, Pankaj Jain followed).
- Failure to file bail application when the trial court explicitly queries the accused weakens any challenge to remand.
Remand Under Section 346 BNSS Does Not Require Prior Cancellation of Section 91 Bond
- The trial court's power under Section 346(2) BNSS to remand after framing charges is independent of Section 91 bond; no cancellation under Section 492 BNSS is prerequisite.
- N. Mani v. Sangeetha Theatre applies: an order is not vitiated by incorrect statutory citation if the power exists under law.
- Section 528 BNSS inherent jurisdiction cannot be used as a substitute for bail remedy when a reasoned remand order exists; the proper forum is the bail court or appellate court.
Police Officials as Accused: Witness Protection Concerns Are Legitimate Grounds for Remand
- Courts may consider the official position of accused (here, DSP, Inspector, Sub-Inspectors) and institutional capacity to influence witnesses as valid reasons for remand to ensure fair trial.
- Absence of formal witness protection orders or specific tampering complaints does not negate the court's preventive assessment based on the nature of the offence and status of accused.
- Niranjan Singh principle: "intimidation by policemen, when they are themselves accused of offences, is not an unknown phenomenon."
Procedural Takeaways for Practitioners
- Monitor charge framing closely: The moment Category B charges are framed, file bail application - do not rely on Section 91 bond or prior anticipatory bail dismissal.
- Do not file parallel Section 528 petition and bail application: Election of remedy required; simultaneous proceedings constitute abuse of process.
- Section 528 is not a bail jurisdiction: It corrects jurisdictional errors, not merits of custody decisions where alternative remedy exists.
- Trial court's reasoned remand order (recording gravity, status, witness concerns) will be upheld absent patent illegality.
- Expedited trial direction: Courts will enforce timelines (here, 9 months for 146 witnesses, 123 documents, 49 articles) and penalise delay tactics.
