Madras High Court
Nisha @ Nishanthan vs The State Of Tamil Nadu on 1 August, 2025
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.O.P.(MD)No.12767 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.08.2025
CORAM :
THE HON`BLE MR.JUSTICE B.PUGALENDHI
Crl.OP(MD)No.12767 of 2025
Nisha @ Nishanthan ... Petitioner
versus
1. The State of Tamil Nadu, rep. by
The Inspector of Police,
Sholavandan Police Station,
Madurai District.
P.Vasuthevan (died) ...Respondent
Prayer : Criminal Original Petition filed under Section 528 of BNSS, to
call for the records and set aside the docket order passed by the learned
Additional Chief Judicial Magistrate, Madurai, in S.C.No.252 of 2021 dated
19.06.2025 and consequently, direct the learned Additional Chief Judicial
Magistrate, Madurai, to consider and dispose the petitioner's bail application
in connection with the case in Crime No.252 of 2017 on the file of the
respondent Police Station.
For Petitioner : Mr.K.Mahendran
For Respondent : Mr.A.S.Abul Kalaam Azad,
Government Advocate (Crl. Side)
1/11
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm )
Crl.O.P.(MD)No.12767 of 2025
ORDER
The petitioner is the first accused in S.C.No.252 of 2021 on the file of the Additional Chief Judicial Magistrate, Madurai. This case has been registered as against the petitioner and others for the offence under Sections 294(b), 341 and 307 IPC. The trial Court, by its order dated 19.06.2025, has cancelled the bail bond and directed the learned Judicial Magistrate to give a complaint as against the first accused/the petitioner herein for the offence under Section 229A IPC/296 BNS. The trial Court, by its order dated 23.07.2025, has also forfeited the surety amount of the first accused/the petitioner and issued notice to the sureties. In these circumstances, the petitioner has filed this petition to set aside the order passed by the trial Court dated 19.06.2025.
2. The learned counsel appearing for the petitioner submits that the defacto complainant died and therefore, the trial has not commenced from the year 2021. The learned counsel further submits that the petitioner has appeared before the trial Court regularly, however, he failed to appear before the trial Court in a particular day, for which, a Non-Bailable Warrant was issued as against him. Further, the learned trial Judge went to the extent of 2/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025 cancelling the bail bond and fortifying the surety amount of the petitioner. The learned counsel further submits that the petitioner is prepared to appear before the trial Court regularly without fail and also ready to file an undertaking affidavit before the trial Court that he will not evade the trial proceedings in future.
3. The learned counsel for the petitioner has also produced a copy of the order passed by the Hon'ble Supreme Court in Special Leave Petition to Appeal (Crl.) No.5385 of 2020, wherein, as against the Non-Bailable Warrant issued by the Court, an accused has moved an appeal before the Hon'ble Supreme Court seeking anticipatory bail. The Hon'ble Supreme Court has disposed of the said petition as under:
“A person released on bail is already in the constructive custody of law. If the law requires him to come back to custody for specified reasons, we are afraid that an application for anticipatory bail apprehending arrest will not lie. There cannot be an apprehension of arrest by a person already in the constructive custody of the law. We, therefore, reject the prayer for anticipatory bail.
But, if the petitioner surrenders within two weeks from today and seeks regular bail, we direct that it shall be considered on the very same day.3/11
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025 Advance copy shall be served on the public prosecutor to facilitate the hearing.
Any such application for regular bail has to be considered on its own merits including the fact that originally he had been released on bail and such other grounds that may be raised without being prejudiced by our present order.
The special leave petition stands disposed of.” Therefore, by referring to the order passed by the Hon'ble Supreme Court in Special Leave Petition to Appeal (Crl.) No.5385/2020 dated 20.11.2020, the learned counsel appearing for the petitioner seeks a similar direction as issued by the Hon'ble Supreme Court in Special Leave Petition to Appeal (Crl.) No.5385 of 2020, dated 20.12.2020.
4. The learned Government Advocate (Crl. Side) has furnished the trial court proceedings from 04.06.2024 to 23.07.2025 and submits that the petitioner has evaded the trial proceedings and changed the counsel thrice and therefore, a Non-Bailable Warrant of arrest was issued as against the petitioner on 29.04.2025 and thereafter, this impugned order has been passed on 19.06.2025. There is no wrong in the order passed by the learned trial Judge. Therefore, there is no reason to interfere with the order of the trial Court.
4/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025
5. This Court considered the rival submissions made and perused the materials placed on record.
6. The petitioner/A1 is facing trial proceedings in S.C.No.252 of 2021 before the learned Additional Chief Judicial Magistrate, Madurai, for the offence under Sections 294(b), 341 and 307 IPC. He has filed this petition to set aside the order passed by the trial Court dated 19.06.2025. As per the impugned proceedings, the learned trial Judge went to the extent of cancelling the bail bond, forfeiting the surety amount and also issuing direction to the Head Clerk to register a case as against the petitioner under Section 229A IPC/269 BNS.
7. Section 229A IPC is extracted as under:
229A. Failure by person released on bail or bond to appear in court.—Whoever, having been charged with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of proving which shall lie upon him), to appear in court in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.5/11
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025 Explanation.—The punishment under this section is—
(a) in addition to the punishment to which the offender would be liable on a conviction for the offence with which he has been charged; and
(b) without prejudice to the power of the court to order forfeiture of the bond.
8. In the Bharatiya Nyaya Sanhita, 2023, this provision has been incorporated as Section 269, which is extracted as under:
Section 269 – Failure by person released on bail bond or bond to appear in Court.
Whoever, having been charged with an offence and released on bail bond or on bond, fails without sufficient cause (the burden of proving which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Explanation – The punishment under this section is -
(a) in addition to the punishment to which the offender would be liable on a conviction for the offence with which he has been charged; and
(b) without prejudice to the power of the Court to order forfeiture of the bond.6/11
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025
9. This provision has been inserted in order to ensure the appearance of the accused regularly before the trial Court. Most of the trials are not prosecuting for want of accused. If the accused gets absconded, the trial Court cannot proceed further by framing the charges. Further, the questioning under Section 313 Cr.P.C. and the identification of the accused during the trial would also be affected. Therefore, the presence of the accused is required during the trial proceedings. Considering the manner in which the trials are affected for want of accused or for execution of NBW, this Court is imposing such condition while granting bail and anticipatory bail, by incorporating a direction to initiate proceedings under Section 229A IPC/269 BNS, whenever an accused absconds the proceedings.
10. From the perusal of the court proceedings produced by the learned Government Advocate (Crl. Side), it appears that the petitioner has not appeared before the trial Court on 19.07.2024. Thereafter, he was present before the Court on 27.08.2024. Again, on 26.09.2024, the petitioner was absent and the Advocate for the petitioner/A1 reported no instructions. But, the learned trial Judge has not issued NBW on 26.09.2024 for his absence. Thereafter, the petitioner appeared on 16.10.2024 and 16.11.2024. However, he failed to appear before the trial court on 7/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025 03.12.2024 and an application has been filed on behalf of the petitioner/A1 to condone his absence. When the Advocate for the petitioner/A1 has reported no instructions on 26.09.2024, it is not known as to how the application has been filed on behalf of the petitioner/A1 to condone his absence on 03.12.2024. The said application was entertained by the Court and his absence was condoned by the learned trial Judge on 03.12.2024. Thereafter, on 20.12.2024, a Memo has been filed by the counsel that he is withdrawing his memo of appearance for A1 and A4. Therefore, the case was adjourned to 10.01.2025. On that day, a new counsel has filed a memo of appearance for the petitioner/A1 and A4. Thereafter, on the next date of hearing, i.e. on 14.02.2025, there was no representation for the petitioner by the new counsel on 14.02.2025. Even then, the trial Court has not issued Non-Bailable Warrant to the petitioner. Thereafter, the petitioner has not appeared before the trial Court on 07.03.2025. Again, the petitioner was absent on 08.04.2025 and 29.04.2025 and the new counsel has also reported no instructions on 29.04.2025. In these circumstances, the trial Court went to the extent of issuing a Non-Bailable Warrant as against the petitioner. After two months, the trial Court went to the extent of cancelling the bail bond and issuing a direction for taking action under Section 229A IPC/269 BNS.
8/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025
11. Further, the petitioner has filed this petition enclosing the court proceedings of 29.04.2025, 15.05.2025 and 19.06.2025 selectively and not enclosed other court proceedings from 04.06.2024 to 23.07.2025.
12. Therefore, this Court is of the view that the trial Court has acted in a perfect manner granting so much opportunity to the petitioner and finally issued a Non-Bailable Warrant of arrest only on 29.04.2025 and also proceeded for cancelling the bail bond on 19.06.2025 and issuing a direction for taking action under Section 229A IPC/269 BNS on 19.06.2025. The trial Court is perfectly right in taking the action for the conduct of the petitioner. Hence, this Court is not inclined to entertain this petition. However, considering the undertaking affidavit filed by the petitioner and the order of the Hon'ble Supreme Court in the Special Leave Petition to Appeal (Crl.) No.5385 of 2020, this Court is inclined to dispose of this petition.
13. Accordingly, this Criminal Original Petition is disposed of with liberty to the petitioner to surrender before the trial Court within a period of two weeks from today and file a similar undertaking affidavit before the 9/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025 trial Court. It is upto the trial Court to take a call depending upon the facts and circumstances of the case and also by considering the undertaking affidavit filed by the petitioner/A1, on the same day.
14. This Court places its appreciation to the Government Advocate (Crl. Side) for placing the court proceedings from 04.06.2024 to 23.07.2025, which enabled the Court to understand the proceedings of the trial Court and to dispose of this petition.
01.08.2025 NCC : Yes/No Index : Yes/No Internet:Yes ogy To
1. The learned Additional Chief Judicial Magistrate, Madurai.
2. The Inspector of Police, Sholavandan Police Station, Madurai District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
10/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm ) Crl.O.P.(MD)No.12767 of 2025 B.PUGALENDHI, J.
ogy Crl.OP(MD)No.12767 of 2025 01.08.2025 11/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/08/2025 05:30:31 pm )