Madras High Court
Esakkipandi @ Karthik vs The Ii Class Executive Magistrate on 11 April, 2022
Crl.R.C.(MD)No.361 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.(MD)No.361 of 2022
and
Crl.M.P(MD)No.4615 of 2022
Esakkipandi @ Karthik ... Petitioner/ Petitioner
Vs.
1.The II Class Executive Magistrate
cum the Tahsildar,
Cheranmahadevi Taluk,
Tirunelveli District.
2.The Inspector of Police,
Mukkudal Police Station,
Tirunelveli District.
3.The Superintendent of Prison,
Central Prison,
Palayankottai,
Tirunelveli District. ...Respondents /Respondents
Prayer: This Criminal Revision Petition filed under Section 397 r/w 401
Cr.P.C. to call for the records and set aside the impugned order passed by the
first respondent in Na.Ka.A.4/378/2022, dated 31.01.2022 and allow this
criminal revision.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.361 of 2022
For Petitioner : Mr.C.Saravanakumar
For Respondents : Mrs.Aasha
Government Advocate (Criminal Side)
ORDER
The criminal revision petition has been filed seeking to set aside the order
passed by the first respondent in Na.Ka.A4/378/2022, dated 31.01.2022.
2.The second respondent had initiated proceedings in LIR.No.37 of 2021
under Section 110 of Cr.P.C as against the petitioner on 18.11.2021.
Accordingly, the petitioner had executed a bond for a period of one year for
keeping good faith before the first respondent till 17.11.2022. However, the
petitioner involved in another case in Crime No.10 of 2022, registered for the
offence under Sections 341, 294(b), 427, 307 and 506(ii) of IPC. Again, he
involved in another case in Crime No.11 of 2022, registered for the offences
under Sections 294(b), 427, 307 and 506(ii) of IPC and Section 3(1)(r), 3(1)(s),
3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)
Act, 1989. In pursuant to which, the petitioner was arrested and remanded to
the judicial custody on 15.01.2022. The same was communicated to the first
respondent to initiate proceedings under Section 122(1(b) of Cr.P.C and on
summon, the petitioner was produced before the first respondent on 31.01.2022.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.361 of 2022
On the day itself, without giving opportunity of hearing and without even
conducting any enquiry, the impugned order was passed, thereby, detained the
petitioner for the remaining bond period, which was executed by the petitioner
till 17.11.2022.
3.On perusal of the impugned order revealed that the petitioner was
produced before the first respondent on 31.01.2022, on the day of which, the
impugned order was passed that too without giving any opportunity of hearing
to the petitioner. That apart, the petitioner was not served any show cause
notice and he was not given opportunity to explain his side. That apart, the
petitioner had executed a bond under Section 110 of Cr.P.C for keeping good
faith.
4.It is relevant to rely upon the judgment of this Court in the case of
Devi Vs. The Executive Magistrate and one another in Crl.R.C.No.
78 of 2020, dated 25.09.2020, this Court has held as follows:-
“36.Unlike the expression “breach of the peace”, where
“subjectivity” is the basis, good behaviour rests on
“objectivity”. All the clauses of Section 110 Cr.P.C., except
clause (g), underpin the existence of a previous case. In fact,
they use the expression “habit / habitual” which is
conspicuously missing in clause (g). Such a requirement is not
there
https://www.mhc.tn.gov.in/judis under Section 107 Cr.P.C. Section 110(e) Cr.P.C. which
Crl.R.C.(MD)No.361 of 2022
contemplates offences committed habitually involving breach of
the peace cannot be used as a window to enter into Section
122(1)(b) Cr.P.C., for the simple reason that, Section 122 (1)
(b) Cr.P.C. is predicated on the nature of the bond, viz., bond
for breach of the peace and not on clause (e) of Section 110
Cr.P.C. Thus, textually and contextually, a bond for good
behaviour can, by no stretch of imagination, be telescoped into
Section 122(1)(b) Cr.P.C.
37. In Anoop Singh Vs. State of Punjab, a learned Single
judge of the Punjab and Haryana High Court has held that
imprisonment under Section 122(1)(b) Cr.P.C., was not
contemplated for the breach of a good behaviour bond under
Section 110 Cr.P.C.
38. There is yet another reason as to why the Parliament
did not include breach of a good behaviour bond in Section
122(1)(b) Cr.P.C., Section 120 Cr.P.C., states what amounts to
breach of a bond. It states that commission or attempt to
commit or the abetment of any offence punishable with
imprisonment, would amount to breach of a bond for food
behaviour. This means that the person will have to face a
regular trial in a criminal Court for the act which gave rise to
the brach of the bond for good behaviour. If a good behaviour
bond is included in Section 122(1)(b) Cr.P.C., there is every
likelihood of the person being imprisoned twice, viz., one for
breach of the bond and the other for the commission or the
attempt to commit the substantive offence. Supposing such a
person is imprisoned for the breach of bond, but is acquitted
for the criminal act which gave rise to the breach of bond, the
imprisonment suffered by him cannot be compensated. That is
why, the Legislature had thought it fit to mulct a person who
commits breach of good behaviour bond only with civil liability,
viz., forfeiture of the bond amount and not imprisonment.”
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.361 of 2022
5.In view of the above, the impugned order passed in Na.Ka.A.
4/378/2022, dated 31.01.2022, cannot be sustained as against the petitioner ad
the same is set aside. Accordingly, the criminal revision petition is allowed.
Consequently, the connected miscellaneous petition is also closed.
11.04.2022
Index :yes/No
Internet:yes/No
lr
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.361 of 2022
G.K.ILANTHIRAIYAN,J.
lr
To
1.The II Class Executive Magistrate
cum the Tahsildar,
Cheranmahadevi Taluk,
Tirunelveli District.
2.The Inspector of Police,
Mukkudal Police Station,
Tirunelveli District.
3.The Superintendent of Prison,
Central Prison,
Palayankottai,
Tirunelveli District.
Crl.R.C.(MD)No.361 of 2022
11.04.2022
https://www.mhc.tn.gov.in/judis
