Madras High Court
Maya @ Silambarasan vs The Sub Divisional Executive ... on 30 March, 2022
Crl.R.C(MD)No.156 of 2022
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 30.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.156 of 2022
and
Crl.M.P(MD)No.2589 of 2022
Maya @ Silambarasan,
S/o.Appasamy,
Uthirai Street,
Thirupurambiyam Village,
Kumbakonam Taluk,
Thanjavur District.
(Now confined at Central
Prison, Trichy). ... Revision Petitioner
Vs.
1.The Sub Divisional Executive Magistrate cum
Revenue Divisional Officer,
Kumbakonam,
Thanjavur District.
2.The Inspector of Police,
Swamimalai Police Station,
Thanjavur District. ... Respondents
PRAYER: Criminal Revision Case filed under Section 397 read with
Section 401 of the Code of Criminal Procedure, to call for the entire
records pertaining to the order passed by the first respondent in
Na.Ka.No.002-2022-A4, dated 19.01.2022 and warrant in Form-16
in M.P.No.01 of 2022 in M.C.No.96/2021-A4, dated 19.01.2022 and
set aside the same by allowing the Criminal Revision.
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Crl.R.C(MD)No.156 of 2022
For Petitioner : Mr.M.Seenisulthan
For Respondents : Ms.M.Aasha
Government Advocate (Criminal Side)
ORDER
This revision has been filed as against the order passed by
the first respondent in Na.Ka.No.002-2022-A4, dated 19.01.2022
and warrant in Form-16 in M.P.No.01 of 2022 in M.C.No.96 of 2021-
A4, dated 19.01.2022 and set aside the same.
2.The petitioner executed a bond under Section 110 of Cr.P.C
on 14.09.2021 for a period of one year. While pending the said bond
period, the petitioner involved in another crime in Crime No.2 of
2022 registered for the offences under Sections 294(b), 342, 324
and 506(ii) of I.P.C. In pursuant to the same, he was arrested and
remanded to judicial custody. The same has been informed by the
second respondent to the first respondent and the first respondent
initiated proceedings under Section 122(1)(b) of Cr.P.C.
3.The learned counsel appearing for the petitioner would
submit that the entire proceeding is unjust and illegal, since Section
122(1)(b) of Cr.P.C is not at all applicable for the bond executed
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Crl.R.C(MD)No.156 of 2022
under Section 110 of Cr.P.C for keeping good behaviour and the
petitioner did not execute any bond under Section 107 bond for
keeping peace.
4.Heard the learned counsel appearing on either side and
perused the materials available on record.
5.On a perusal of the impugned order, it seen that the same
was passed without application of mind. It is also seen that no
explanation is called, for the violation of the terms of the bond
executed by the petitioner and no hearing of opportunity was given
to the petitioner before cancelling the bond executed by him.
Though the petitioner was given an opportunity of cross-examining
the witnesses produced by the second respondent, he did not
engage any counsel on behalf of him and no cross-examination was
made from the witnesses produced by the second respondent.
Further, the petitioner did not produce any witness or document and
no explanation was given by him. He was produced before the first
respondent for the judicial custody and as such there was no
possibility for him to put-forth his defence before the first
respondent. Therefore, no one shall be deprived on his life or
personal liberty except according to procedure established by law. It
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Crl.R.C(MD)No.156 of 2022
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 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.
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Crl.R.C(MD)No.156 of 2022
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.
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.
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Crl.R.C(MD)No.156 of 2022
6.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 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
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Crl.R.C(MD)No.156 of 2022
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.”
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.
7.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
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Crl.R.C(MD)No.156 of 2022
allowed and the proceedings in Na.Ka.No.002-2022-A4, dated
19.01.2022 and warrant in Form-16 in M.P.No.01 of 2022 in M.C.No.
96/2021-A4, dated 19.01.2022 passed by the first 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.
30.03.2022
Index : Yes/No
Internet : Yes
ps
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.156 of 2022
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
To
1.The Sub Divisional Executive Magistrate cum
Revenue Divisional Officer,
Kumbakonam,
Thanjavur District.
2.The Inspector of Police,
Swamimalai Police Station,
Thanjavur District.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.156 of 2022
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.156 of 2022
30.03.2022
https://www.mhc.tn.gov.in/judis
