Madras High Court
Dinesh Kumar @ Dheena vs The Executive Magistrate Cum ... on 23 June, 2022
Crl.M.P.No.1149 of 2022 in Crl.R.C.No.118 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.M.P.No.1149 of 2022
in
Crl.R.C.No.118 of 2022
Dinesh Kumar @ Dheena .. Petitioner
Vs
1. The Executive Magistrate cum Deputy Commissioner
Madhavaram District.
2. State rep. by
The Inspector of Police (L&O)
M-6, Manali Police Station
Chennai 600 068. . .. Respondents
Prayer: Criminal Miscellaneous Petition filed under Sections 397 and 439 of
the Code of Criminal Procedure to suspend the sentence order dated 16.12.2021
u/s.122(1)(b) of Cr.P.c. in M.P.no.12 of 2021 in RC.No.313/Sec. Pro/DCP-
MVM/2021 in M-6, Manali P.S., S.I.No.27 of 2021 u/s 110 of Cr.P.C. (On the
file of the Executive Magistrate cum Deputy Commissioner, Madhavaram
District) to undergo simple imprisonment of 285 days and enlarge the petitioner
on bail.
For Petitioner : Mr.M.Illiyas
For Respondents : Mr.S.Vinoth Kumar
Govt. Advocate (Crl. Side)
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Crl.M.P.No.1149 of 2022 in Crl.R.C.No.118 of 2022
ORDER
This Criminal Miscellaneous Petition has been filed by the
petitioner/Accused, seeking suspension of sentence order dated 16.12.2021
u/s.122(1)(b) of Cr.P.c. in M.P.no.12 of 2021 in RC.No.313/Sec. Pro/DCP-
MVM/2021 in M-6, Manali P.S., S.I.No.27 of 2021 u/s 110 of Cr.P.C. (On the
file of the Executive Magistrate cum Deputy Commissioner, Madhavaram
District) to undergo simple imprisonment of 285 days and enlarge the petitioner
on bail.
2. Mr.M.Illiyas, 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
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Crl.M.P.No.1149 of 2022 in Crl.R.C.No.118 of 2022
Hon'ble Judge of this 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.S.Vinoth Kumar, 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
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Crl.M.P.No.1149 of 2022 in Crl.R.C.No.118 of 2022
Crl.R.C.No.982 of 2018, dated 24.11.2018 and held in paragraph No.20 as
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.
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Crl.M.P.No.1149 of 2022 in Crl.R.C.No.118 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:-
(i) The petitioner shall execute own bond for a
sum of Rs.10,000/- (Rupees Ten Thousand Only) before
the Superitendent of Prisons, Puzhal Cental Prison,
Puzhal.
(ii)The petitioner shall appear before the second
respondent Police everyday at 5.30 p.m., until further
orders.
9. Hence, the Criminal Miscellaneous Petition is ordered to the extent of
granting Suspension of Sentence. The Superitendent of Prisons, Puzhal Cental
Prison, Puzhal, is directed to set the petitioner at liberty, if his further detention
is no longer required in connection with any other case or proceedings.
10. The Criminal Miscellaneous Petition is ordered accordingly.
Index : yes/no 23.06.2022
Internet: yes/no (1/2)
Speaking order/Non-speaking order
drm
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Crl.M.P.No.1149 of 2022 in Crl.R.C.No.118 of 2022
D.BHARATHA CHAKRAVARTHY. J.,
drm
To
1. The Executive Magistrate cum Deputy Commissioner
Madhavaram District.
2. The Superintendent of Prison
Puzhal Central Prison
Puzhal.
3.The Public Prosecutor,
Madras High Court.
Crl.M.P.No.1149 of 2022
in Crl.R.C.No.118 of 2022
(½)
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Crl.M.P.No.1149 of 2022 in Crl.R.C.No.118 of 2022
23.06.2022
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