Madras High Court
R.Vivek @ Vivekanandhan vs The Sub Divisional Magistrate Cum on 31 March, 2022
Crl.R.C(MD)No.163 of 2022
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 31.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.163 of 2022
and
Crl.M.P(MD)No.2682 of 2022
R.Vivek @ Vivekanandhan ... Petitioner/Petitioner
Vs.
1.The Sub Divisional Magistrate cum
Revenue Divisional Officer,
Pudukkottai.
2.The Inspector of Police,
Ganesh Nagar Police Station,
Pudukkottai District. ... Respondents/Complainants
PRAYER: Criminal Revision Case filed under Section 397 and 401 of
the Code of Criminal Procedure, to call for the records of the first
respondent in Cr.P.C case No.125 of 2021 dated 26.11.2021 and set
aside the same.
For Petitioner : Mr.G.Mathavan
For Respondents : Ms.M.Aasha
Government Advocate (Criminal Side)
https://www.mhc.tn.gov.in/judis
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Crl.R.C(MD)No.163 of 2022
ORDER
This revision has been filed as against the order passed by
the first respondent in Cr.P.C case No.125 of 2021 dated 26.11.2021
and set aside the same.
2.The petitioner executed a bond under Section 110 of Cr.P.C
for a period of one year on 30.09.2021. Thereafter, the petitioner
involved in another crime No.799 of 2021 for the offences under
Sections 294(b), 386 and 506(ii) of I.P.C and 7 r/w 25 (1-A) of
Arms Act, 1959 on the file of the second respondent. In pursuant to
the said crime, the petitioner was arrested and remanded to judicial
custody. It was intimated to the first respondent and on receipt of
the same, the first respondent issued show cause notice for the
enquiry to be conducted on 09.11.2021. On the enquiry, the second
respondent examined two witnesses and passed the impugned
order thereby detained the petitioner for the remaining bond period.
The petitioner originally executed the bond under Section 110 of
Cr.P.C whereas, the first respondent initiated proceedings under
Section 122 of Cr.P.C.
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Crl.R.C(MD)No.163 of 2022
3.Heard the learned counsel appearing on either side and
perused the materials available on record.
4.It is relevant to rely upon the provision under Section 122 of
Cr.P.C and the same reads as follows:-
“122. Imprisonment in default of security.—
(1) (a) If any person ordered to give security under
section 106 or section 117 does not give such
security on or before the date on which the period for
which such security is to be given commences, he
shall, except in the case next hereinafter mentioned,
be committed to prison, or, if he is already in prison,
be detained in prison until such period expires or
until within such period he gives the security to the
Court or Magistrate who made the order requiring it.
(b) If any person after having executed a
[bond, with or without sureties] without sureties for
keeping the peace in pursuance of an order of a
Magistrate under section 117, is proved, to the
satisfaction of such Magistrate or his successor-in-
office, to have committed breach of the bond, such
Magistrate or successor-in-office may, after recording
the grounds of such proof, order that the person be
arrested and detained in prison until the expiry of the
period of the bond and such order shall be without
prejudice to any other punishment or forfeiture to
which the said person may be liable in accordance
with law.”
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Crl.R.C(MD)No.163 of 2022
The first respondent cannot invoke the provision under Section 122
of Cr.P.C if the petitioner violated the bond under Section 110 of
Cr.P.C.
5.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 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.
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Crl.R.C(MD)No.163 of 2022
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.
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.”
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Crl.R.C(MD)No.163 of 2022
The above legal principles as evolved have to be followed by all the
Executive Magistrates concerned.
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.
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Crl.R.C(MD)No.163 of 2022
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 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
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Crl.R.C(MD)No.163 of 2022
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 Cr.P.C case No.125 of 2021 dated
26.11.2021 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.
31.03.2022
Index : Yes/No
Internet : Yes
ps
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.163 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 Magistrate cum
Revenue Divisional Officer,
Pudukkottai.
2.The Inspector of Police,
Ganesh Nagar Police Station,
Pudukkottai District.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.163 of 2022
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.163 of 2022
31.03.2022
https://www.mhc.tn.gov.in/judis
