Madras High Court
Muneeswaran vs The Ii Class Executive Magistrate ... on 19 April, 2022
Crl.R.C(MD)No.378 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :19.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.378 of 2022
and
Crl.M.P(MD)No.4908 of 2022
Muneeswaran ...Petitioner/Petitioner
Vs.
State Rep. by
1.The II Class Executive Magistrate Cum
Tahsildar,
Dindigul East,
Dindigul.
2.The Sub Inspector of Police,
Dindigul Taluk Police Station,
Dindigul. ...Respondents/Respondents
Prayer : This Criminal Revision has been filed under Section 397 r/w
401 of Criminal Procedure Code, to call for the records and set aside the
order passed by the first respondent in Na.Ka.No.07/2022/A3, dated
23.03.2022 and allow this Criminal Revision Petition.
For Petitioner : Mr.J.Imran Khan
For Respondents : Ms.M.Aasha
Government Advocate (Crl.side)
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.378 of 2022
ORDER.
The Criminal Original Petition has been filed to set aside the
order passed by the first respondent in Na.Ka.No.07/2022/A3, dated
23.03.2022, thereby detained the petitioner for the remaining bond
period executed by the petitioner.
2.The petitioner was directed to execute a bond under Section
110 (e) of Cr.P.C. for the reason that the second respondent police
registered a case as against the petitioner and initiated proceedings in
L.I.R.No.44 of 2022. In pursuant to the said proceedings, the petitioner
was produced before the first respondent on 04.03.2022 and he executed
a bond for Rs.1,00,000/- for a period of twelve months. Again on the
very same the second respondent registered another case against the
petitioner in Cr.No.139 of 2022 for the offences under Sections 392 and
506 (ii) of IPC and he was arrested and remanded to judicial custody, in
pursuant to the registration of FIR. Thereafter, the second respondent
informed the same to the first respondent to initiate the proceedings
under Section 122(1)(B) of Cr.P.C. On receipt of the said request, the
first respondent has issued summons to the petitioner to appear before
the first respondent on 23.03.2022. On 23.03.2022, the petitioner was
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Crl.R.C(MD)No.378 of 2022
produced before the first respondent and his statement was recorded and
passed impugned order, thereby detained the petitioner for remaining
period of bond executed by the petitioner on 04.03.2022.
3.Heard the learned counsel appearing on either side and
perused the materials available on record.
4.Admittedly, the first respondent has failed to issue show
cause notice to the petitioner and without giving any opportunity of
hearing and also not given any opportunity of cross examining the
witnesses before passing impugned order. It amounts to clear violation
of principles of natural justice and as such impugned order is not
sustainable as against the petitioner. That apart, when the petitioner
executed a bond under Section 110(e) of Cr.P.C., the first respondent
cannot initiate the proceedings under Section 122(1)(B) of Cr.P.C. It is
relevant to see the judgment of this Court in the case of P.Sathish @
Sathish Kumar Vs. State represented by Inspector of Police reported in
2019 (2) MWN (cr.) 136, in which, this Court has held as follows:-
“1.Notice to be sent to the person by the
Executive Magistrate to show cause as to why action
under Section 122(1)(b) of Cr.P.C should not be
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Crl.R.C(MD)No.378 of 2022
taken for breach of the bond executed under Section
117 Cr.P.C on a date fixed.
2.At the enquiry, the Executive Magistrate
should furnish the person the materials sought to be
relied upon, including statements of witnesses, if any,
in the vernacular (if the person is not knowing the
language other than his mother tongue).
3.If the person wishes to engage an
Advocate to represent him at the enquiry, an
opportunity to have a counsel of his choice should be
provided to him.
4.The Executive Magistrate shall inform
the person about his right to have the assistance of a
lawyer for defending him in the enquiry.
5.The enquiry shall be conducted by the
Executive Magistrate on the notified date or such
other date as may be fixed and the person should be
allowed to participate in the same.
6.At the enquiry, an opportunity should be
given to the person to: (i)Cross-examine the official
witnesses, if any and (ii)produce documents and
witnesses, if any, in support of his case.
7.Such Executive Magistrate or his
successor in office, should then, apply his mind on
the materials available on record, in the enquiry, and
pass speaking order.
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Crl.R.C(MD)No.378 of 2022
8.An order under Section 122(1)(b) of
Cr.P.C should contain the grounds upon which the
Executive Magistrate is satisfied that the person has
breached the bond.
9.A copy of the order should be furnished
to the person along with the materials produced at
the enquiry.
10.The enquiry, as far as possible shall be
completed within 30 days and at no circumstance,
the enquiry shall be adjourned unnecessarily. The
advocates, who appear on behalf of the persons
concerned, are expected to co-operate with the
enquiry process for its expeditious completion.”
The above legal principles as evolved have to be followed by all the
Executive Magistrates concerned.
5.Further, 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
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Crl.R.C(MD)No.378 of 2022
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
under Section 107 Cr.P.C. Section 110(e) Cr.P.C.
which 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
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Crl.R.C(MD)No.378 of 2022
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.”
In the aforesaid judgment, this Court has held that the bond for good
behavior can by no stretch of imagination be telescoped into Section
122(1) (b) of Cr.P.C.
6.In view of the above referred judgments, the first respondent
failed to follow the procedure as enumerated by this Court and as such
the impugned order cannot be sustained as against the petitioner.
Accordingly, this criminal revision case is allowed and the proceedings
in Na.Ka.No.07/2022/A3, dated 23.03.2022 passed by the first
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Crl.R.C(MD)No.378 of 2022
respondent is set aside and the petitioner is directed to be released
forthwith, unless his presence is required in any other case.
Consequently connected miscellaneous petition is closed.
19.04.2022
Index : Yes/No
Internet : Yes/No
vsd
ToT
1.The II Class Executive Magistrate Cum
Tahsildar,
Dindigul East,
Dindigul.
2.The Sub Inspector of Police,
Dindigul Taluk Police Station,
Dindigul.
3 .The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.378 of 2022
G.K.ILANTHIRAIYAN, J.
vsd
Crl.R.C(MD)No.378 of 2022
and
Crl.M.P(MD)No.4908 of 2022
19.04.2021
https://www.mhc.tn.gov.in/judis
