Vijayan @ Vijayakumar vs The Second-Class Administrative ...
2022 Latest Caselaw 13924 Mad

Citation : 2022 Latest Caselaw 13924 Mad
Judgement Date : 4 August, 2022

Madras High Court

Vijayan @ Vijayakumar vs The Second-Class Administrative ... on 4 August, 2022

                                                                Crl.M.P.No.11982 of 2022 in Crl.R.C.No.1047 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 04.08.2022

                                                            CORAM :

                      THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                    Crl.M.P.No.11982 of 2022
                                                               in
                                                    Crl.R.C.No.1047 of 2022

                Vijayan @ Vijayakumar                                       ..      Petitioner

                                                              Vs

                1. The Second-Class Administrative Magistrate-
                      cum-Revenue Tahsildar
                   Bhavani, Erode District.

                2. State rep. by
                   Inspector of Police
                  Bhavani Police Station
                   Erode District.                                          ..       Respondents


                Prayer: Criminal Miscellaneous Petition filed under Sections 397 and 439 of the

                Code of Criminal Procedure to suspend the sentence imposed by the first

                respondent in Muu.Muu.No.5231/2022/Aa3 vide an order dated 23.07.2022 and

                enlarge the petitioner on bail pending disposal of the criminal revision.

                                   For Petitioner       :    Mr.M.Vinoth
                                   For Respondents :         Mr.C.E.Pratap
                                                             Govt. Advocate (Crl. Side)


https://www.mhc.tn.gov.in/judis
                1/6
                                                             Crl.M.P.No.11982 of 2022 in Crl.R.C.No.1047 of 2022




                                                        ORDER

This Criminal Miscellaneous Petition has been filed by the

petitioner/Accused, seeking suspension of the sentence imposed by the first

respondent in Muu.Muu.No.5231/2022/Aa3 vide an order dated 23.07.2022 and

enlarge the petitioner on bail pending disposal of the criminal revision.

2. Mr.M.Vinoth, learned Counsel appearing for the petitioner would submit

that in a routine manner, with a view to detain the petitioner, bond is required

under Section 110 of the Code of Criminal Procedure and subsequently, the

petitioner is implicated in criminal case as if he violated the bond and now, the

present order is passed.

3. He would further submit that this Court, earlier, in the case of P.Sathish

Vs State and another, in Crl.R.C.(MD) No.302 of 2017 dated 09.08.2017 had

issued certain directions to be followed by the Executive Magistrate before

clamping detention orders. Further, in the judgment rendered in Devi Vs State, in

Crl.R.C.No.78 of 2020, by order dated 25.09.2020, another Hon'ble Judge of this

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

Crl.M.P.No.11982 of 2022 in Crl.R.C.No.1047 of 2022

Court had doubted the power of the Deputy Commissioner of Police in passing

detention order and while differing with the view taken in P.Sathish Vs State

and another, cited supra had referred the issues to the Hon'ble Chief Justice for

constituting a larger bench and thereby, it would take some time to decide the

issue. He would therefore, pray for suspension of sentence pending revision.

4. Mr.C.E.Pratap, the learned Government Advocate (Crl. Side), would

submit that the petitioner had furnished a bond to be of good behaviour and in

violation of the bond, he had involved in the offence and the respondent, after

affording sufficient opportunity, finding violation of the bond, passed the order of

detention.

5. Heard the learned counsel for the petitioner and perused the materials on

record.

6. This Court in “Devi Versus The Executive Magistrate-cum-Deputy

Commissioner of Police, St.Thomas Mount District” in Crl.R.C.No.78 of

2020, by order dated 25.09.2020, had differed with the findings given in

Crl.R.C.No.982 of 2018, dated 24.11.2018 and held in paragraph No.20 as

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

Crl.M.P.No.11982 of 2022 in Crl.R.C.No.1047 of 2022

follows:-

“42. Since this Court respectfully differs from V. Parthiban, J. on the issue of applicability of Section 122(1)(b) Cr.P.C. to a good behaviour bond under Section 110(e), the Registry is directed to place this matter before the Hon’ble Chief Justice for appropriate orders.

43. Further, as this Court is not in agreement with the view propounded by another learned single judge of this Court in Balamurugan (supra), the following question is framed with a direction to the Registry to place the same before the Hon’ble Chief Justice with a request to constitute a Bench of appropriate strength for an authoritative pronouncement:

Whether G.O.Ms.No.659, Home (Cts. VIA) Department dated 12.09.2013 and G.O. Ms.No.181, Home (Cts.VIA) Department dated 20.02.2014 violate the scheme of separation of powers and are ultra vires the proviso to Section 6 of the Tamil Nadu District Police Act, 1868 (Central Act XXIV of 1868)?”

7. Now, both the learned Single Judges have referred the issues to be

placed before the Hon'ble The Chief Justice for constituting a larger bench with

regard to applicability of Section 122(1)(b) Cr.P.C., the power exercised by

police officers can it be said to be power exercised as Executive Magistrate

under the Code of Criminal Procedure and for other connected issues.

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

Crl.M.P.No.11982 of 2022 in Crl.R.C.No.1047 of 2022

8. In view of the above and it is learnt that it would take some time for the

above issues to be decided, this Court is inclined to suspend the sentence

imposed on the petitioner with the following conditions:-