Madras High Court
Pandi vs The Learned Ii Class Executive ... on 19 May, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.05.2022
CORAM:
THE HONOURABLE MRS JUSTICE T.V.THAMILSELVI
Crl.R.C.(MD).No.477 of 2022
Pandi .. Petitioner/Offender
Vs.
1.The learned II Class Executive Magistrate Cum Tahsildar,
Aathur Taluk,
Dindigul District.
2.The State Rep by
The Inspector of Police,
Pattiveeranpatti Police Station,
Dindigul District.
.. Respondents/Complainants
Prayer:- Criminal Revision petition is filed under Section 397 r/w 401
Cr.P.C. to call for records pertaining to the order passed in M.C.No.
12/2022/Aa3, dated 05.05.2022, on the file of the learned II Class
Executive Magistrate Cum Thasildar, Aathur Taluk, Dindigul, and set
aside the same as illegal.
For Petitioner :Mr.K.Sivabalan
For Respondent :Mrs.M.Aasha
Government Advocate (Crl.Side)
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2
ORDER
The Criminal Revision case is filed to call for records pertaining
to the order passed in M.C.No.12/2022/Aa3, dated 05.05.2022, on the
file of the learned II Class Executive Magistrate Cum Thasildar, Aathur
Taluk, Dindigul, and set aside the same as illegal.
2. Originally, the petitioner executed a bond before the first
respondent under Section 110(e) Cr.P.C for a period of six months.
Pending the bond period, again on 28.04.2022, the petitioner involved in
another case in Crime No.101 of 2022 registered for the offence under
Section 8(C) r/w 20(b) II (B) NDPS Act. On the very same day, the
petitioner was arrested and remanded to judicial custody. Thereafter, the
second respondent had recommended the first respondent to initiate
proceedings under Section 122 (1)(b) Cr.P.C. The first respondent
without issuing any show cause notice to the petitioner and without
giving opportunity of hearing to the petitioner, mechanically passed an
order on 05.05.2022 and thereby, detained the petitioner for the
remaining bond period. That apart, the petitioner originally executed a
bond under Section 110 Cr.P.C. Therefore, the first respondent ought not
to have initiated proceedings under Section 121(b) Cr.P.C. It is relevant
to see the judgment of this Court in the case of P.Sathish @ Sathish
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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.
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.
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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.
3.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:-
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“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
commission or attempt to commit or the abetment of
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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.
4. 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 allowed and the proceedings
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in M.C.No.12/2022/Aa3, dated 05.05.2022, 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.
19.05.2022
Internet :Yes/No
Internet : Yes/No
dss
Note : Issue order copy on 20.05.2022
To
1.The learned II Class Executive Magistrate Cum Tahsildar,
Aathur Taluk,
Dindigul District.
2.The State Rep by
The Inspector of Police,
Pattiveeranpatti Police Station,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI,J.
dss
Crl.R.C.(MD).No.477 of 2022
19.05.2022
https://www.mhc.tn.gov.in/judis
