Balaji vs The State Rep. By Sub Divisional ...
2022 Latest Caselaw 9991 Mad

Citation : 2022 Latest Caselaw 9991 Mad
Judgement Date : 14 June, 2022

Madras High Court

Balaji vs The State Rep. By Sub Divisional ... on 14 June, 2022

Crl.M.P.No.7165 of 2022 in Crl.R.C.No.684 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.06.2022

CORAM :

THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.M.P.No.7165 of 2022
in
Crl.R.C.No.684 of 2022

Balaji .. Petitioner

1. The State Rep. by Sub Divisional Magistrate/
Revenue Divisional Officer
Chengalpattu, Chengalpattu District.

2. The Deputy Superintendent of Police
Chengalpattu Sub Division
Chengalpattu District.

3. The Inspector of Police
Prohibition Enforcement Wing Unit
Chengalpattu
Chengalpattu District. .. Respondents

Prayer: Criminal Miscellaneous Petition filed under Section 389(1) r/w
Section 439 of the Code of Criminal Procedure to suspend the conviction
and sentence imposed on the petitioner herein by the first respondent
learned Sub divisional magistrate/Revenue Divisional Officer,
Chengalpattu, Chengalpattu District, the first respondent herein passed in
M.C.No.A1/183/2021 order dated 30.09.2021.
For the Petitioner : Mr.Y.Deva Arul Prakash
For the Respondents : Mr.S. Vinoth Kumar,
Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis

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Crl.M.P.No.7165 of 2022 in Crl.R.C.No.684 of 2022

ORDER

This Criminal Miscellaneous Petition is to suspend the conviction

and sentence imposed on the petitioner herein by the first respondent

learned Sub divisional Magistrate/Revenue Divisional Officer,

Chengalpattu, Chengalpattu District, the first respondent herein passed in

M.C.No.A1/183/2021 order dated 30.09.2021, pending disposal of the

above revision.

2.Learned Counsel for the petitioner would submit that the case of

the petitioner is that the petitioner had executed bond on 04.05.2022 to

03.05.2023 under Section 110 of Cr.P.C., for keeping good behaviour for

one year. Based on the complaint against the petitioner, the third

respondent registered a case against the petitioner in Crime No.183 of

2022 under Sections 4(1)(aaa) 4(1-A) TNP Act r/w 6 & 11 of Rules 2000

and was arrested and remanded in Judicial custody on 20.04.2022. The

petitioner further executed a security bond from 30.09.2021 to 29.09.2022

and prior to the expiry of the bond period, the petitioner committed an

offence and violated the conditions of the bond. Due to which, the second

respondent recommended to take action against the petitioner under

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Crl.M.P.No.7165 of 2022 in Crl.R.C.No.684 of 2022

Section 122(1)(b) of the Cr.P.C, for which the first respondent cancelled

the bond execued by the petitioenr on 30.09.2021 under Section 110 of the

Cr.P.C and ordered to detain the petitioner.

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 Court had doubted the power of

the Deputy Commissioner of Police in passing detention order and while

deferring 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 on 30.09.2021. On violation of the bond, he had involved in the

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Crl.M.P.No.7165 of 2022 in Crl.R.C.No.684 of 2022

offence on 29.09.2022. The first 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 deferred with the

findings given in 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:

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

Crl.M.P.No.7165 of 2022 in Crl.R.C.No.684 of 2022

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.

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 Superintendent, Central Prison, Puzhal, Chennai.