Madras High Court
Jayaseelan vs The Executive Magistrate Cum on 7 November, 2022
Crl.RC.No.1528 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.11.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.RC.No.1528 of 2018
Jayaseelan ... Petitioner
Versus
1.The Executive Magistrate cum
Deputy Commissioner of Police,
Washermenpet.
2.State: Inspector of Police(crime),
N2, Kasimedu Police Station,
Chennai 600 013 ... Respondents
PRAYER: Criminal Revision has been filed under Sections 397 and 401 of
the Code of Criminal Procedure to set aside and revise the order dated
10.09.2018 passed by the first respondent in MP.No.1 of 2018 in
RC.No.62/Sec.Pro/DCP WPT/2018.
For Petitioner : Mr.D.Gopi Krishnan
For Respondents : Mr.A.Gopinath,
Government Advocate(crl.side)
ORDER
This criminal revision is directed as against the order dated
10.09.2018 passed by the first respondent in MP.No.1 of 2018 in
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1528 of 2018
RC.No.62/Sec.Pro/DCP WPT/2018.
2. The petitioner had earlier involved in cases in Cr.No.1327 of
2017 and 1348 of 2017 on the file of the second respondent. Thereafter, on
suspicion of committing crime, to take action under Section 109 of Cr.P.C.,
it was registered in Sl.No.13 of 2018 on the file of the second respondent
and he was released. Thereafter on summon dated 06.08.2018, before the
first respondent, the petitioner executed bond for a period of one year under
Section 109 of Cr.P.C. on 06.08.2018. While pending the said bond period,
he again involved in crime No.394 of 2018 registered for the offences under
Section 380 of IPC.
3. On 07.09.2018, when he was produced before the Executive
Magistrate on PT warrant, he was given opportunity to submit his
explanation for the show cause notice and he was directed to submit his
explanation on 10.09.2018. On 10.09.2018, he was produced and he did not
engage any advocate. After examination of the prosecution witnesses, the
first respondent detained him for the remaining bond period by the
impugned order dated 10.09.2018 itself.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1528 of 2018
4. Heard, the learned counsel for the petitioner and the learned
Government Advocate(crl.side) appearing for the respondents.
5. Admittedly, the first respondent initiated proceedings under
Section 122(1)(b) of Cr.P.C. It is relevant to extract the provisions under
Section 122(1)(b) of Cr.P.C. hereunder:
122. Imprisonment in default of security.—
(1) (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.”
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1528 of 2018
Thus, it is clear that if any person having been executed bond for keeping
peace in pursuance of an order under Section 117 of Cr.P.C. and violated the
condition till the expiry of bond period, the first respondent can very well
initiate proceedings under Section 122(1)(b) of Cr.P.C. on the strength of
the report from the police personnel concerned.
6. In the case on hand, admittedly the petitioner executed bond
under Section 109 of Cr.P.C as security for his good behaviour for a period
of one year. Therefore, the first respondent has no jurisdiction to initiate
proceedings under Section 122(1)(b) of Cr.P.C. when the accused executed
bond under Section 109 Cr.P.C. In this regard, it is relevant to reply upon
the judgment in the case of Devi Vs. The Executive Magistrate and one
another in Crl.R.C.No.78 of 2020, dated 25.09.2020, wherein 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
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1528 of 2018
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 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
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1528 of 2018
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.”
7. In view of the above, this criminal revision is allowed and the
order dated 10.09.2018 passed by the first respondent in MP.No.1 of 2018
in RC.No.62/Sec.Pro/DCP WPT/2018 is set aside.
07.11.2022
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
lok
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1528 of 2018
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1528 of 2018
G.K.ILANTHIRAIYAN. J,
lok
To
1.The Executive Magistrate cum
Deputy Commissioner of Police,
Washermenpet.
2.Inspector of Police(crime),
N2, Kasimedu Police Station,
Chennai 600 013
3.The Public Prosecutor,
High Court of Madras
Crl.RC.No.1528 of 2018
07.11.2022
https://www.mhc.tn.gov.in/judis
