Madras High Court
Siva vs The Executive Magistrate Cum on 5 April, 2023
Crl.R.C.No.631 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
CRL.R.C.NO.631 OF 2023
AND CRL.M.P.NO.4816 OF 2023
Siva ... Petitioner
Vs.
1.The Executive Magistrate cum
Deputy Commissioner of Police
St. Thomas Mount,
Chennai – 600 016.
2.The Inspector of Police
Law and Order
S-7, Madipakkam Police Station
Kilkattalai, Chennai – 600 117. ... Respondents
PRAYER: Criminal Revision Case filed under section 397 r/w 401 of
Criminal Procedure Code to set aside the conviction order imposed against
the petitioner in M.C.No.03 of 2023 in Na.Ka.En458 / Nr. Se.Natu.Ka.
Thu.Aa.Pu.Tho.Ma/2022 dated 23.02.2023 passed by the first respondent
in by allowing this Criminal Revision Petition.
For Petitioner ... Mr.M.Kalaiyarasan
For Respondents ... Mr.R.Vinothraja
Government Advocate (Crl.Side)
1/6
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.631 of 2023
ORDER
Challenging the order dated 23.02.2023 passed by the first
respondent under Section 122 (1)(b) of Criminal Procedure Code in
M.P.No.03 of 2023 in Na.Ka.En.458/Nr.Se.Natu.Ka.
Thu.Aa.Pu.Tho.Ma/2022 pursuant to the Crime No.45 of 2023 under
Sections 392 and 397 IPC on the file of G7 Achirapakkam Police Station,
this Criminal Revision is filed by the petitioner.
2.The learned counsel for the petitioner would submit that the
first respondent passed an order dated 23.02.2023 in M.P.No.03 of 2023 in
Na.Ka.En.458/Nr.Se.Natu.Ka.Thu.Aa.Pu.Tho.Ma/2022, under Section
122(1)(b) Cr.P.C, pursuant to Crime No.45 of 2023 under Sections 392
and 397 IPC on the file of G7 Achirapakkam Police Station and remanded
the petitioner till 29.11.2023. This impugned order is unsustainable, in
view of the order of the Division Bench of this Court in P.SATHISH @
SATHISH KUMAR AND OTHERS VS. THE STATE REP. BY THE
INSPECTOR OF POLICE AND OTHERS [CRL.R.C. NO.137 OF 2018
AND ETC., BATCH CASES, DECIDED ON 13.03.2023]. Therefore, he
seeks to set aside the impugned order passed by the first respondent.
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Crl.R.C.No.631 of 2023
3.The learned Government Advocate (Criminal Side)
appearing for the respondents fairly conceded that the first respondent is
not the competent authority to pass an order under Section 122(1)(b)
Cr.P.C.
4.I have considered the matter in the light of submissions of
the learned counsel for the petitioner and the respondents.
5.On perusal of the records and the impugned order, it reveals
that the first respondent in pursuance of the complaint given by the
Sub-Inspector of Police, G7 Achirapakkam Police Station has proceeded
to initiate proceedings against the petitioner under Section 110 Cr.P.C and
directed to execute the bond with two sureties. Since the petitioner has
violated the bond executed before the Executive Magistrate, the first
respondent proceeded against him further under Section 122(1)(b) Cr.P.C
and finally ordered to remand him till 29.11.2023. The impugned order
dated 23.02.2023 passed by the first respondent in M.P.No.03 of 2023 in
Na.Ka.En.458/Nr.Se.Natu.Ka.Thu.Aa.Pu.Tho.Ma/2022 under Section
122(1)(b) Cr.P.C, is unsustainable, in view of the order of the Division
Bench of this Court in P.SATHISH @ SATHISH KUMAR CASE (cited
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Crl.R.C.No.631 of 2023
supra) wherein, in paragraph 80 (e), this Court, relied on a judgment of
the Hon'ble Supreme Court in GULAM ABBAS VS STATE OF UTTAR
PRADESH] [1982) 1 SCC 71] has held as follows:
“80 (e) In the light of the law laid down in
paragraph 24 of the three judge bench decision
of the Supreme Court in Gulam Abbas Vs State
of Uttar Pradesh (1982) 1 SCC 71, an Executive
Magistrate cannot authorize imprisonment under
Section 123(1)(b) for violation of a bond under
Section 107 Cr.P.C. A person who has violated
the bond executed before the Executive
Magistrate under the said provision will have to
be challenged or prosecuted before the Judicial
Magistrate for inquiry and punishment under
Section 122(1)(b)Cr.P.C”
6.In the light of the above, this Court is of the considered
view that the first respondent is not the competent authority to impose any
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Crl.R.C.No.631 of 2023
punishment under Section 122(1)(b)Cr.P.C. Therefore, the impugned order
passed by the first respondent is set aside and the Criminal Revision Case
is allowed. Consequently, connected miscellaneous petition is closed.
05.04.2023
Internet : Yes/No
Speaking / Non-speaking order
TK
To
1.The Executive Magistrate cum
Deputy Commissioner of Police
St. Thomas Mount, Chennai – 600 016.
2.The Inspector of Police
Law and Order
S-7, Madipakkam Police Station
Kilkattalai, Chennai – 600 117.
3.The Sub Inspector of Police
G7 Achirapakkam Police Station
Achirapakkam.
4.The Superintendent
Central Prison
Puzhal, Chennai.
5.The Public Prosecutor
High Court of Madras
Chennai – 600 104.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.631 of 2023
V.SIVAGNANAM, J.
TK
CRL.R.C.NO.631 OF 2023
AND CRL.M.P.NO.4816 OF 2023
05.04.2023
https://www.mhc.tn.gov.in/judis
