Madras High Court
Vinoth Kumar vs The Executive Magistrate Cum on 20 April, 2023
Crl.R.C.No.703 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
CRL.R.C.NO.703 OF 2023
AND CRL.M.P.NO.5470 OF 2023
Vinoth Kumar ... Petitioner
Vs.
1.The Executive Magistrate cum
Deputy Commissioner of Police
St. Thomas Mount
Chennai – 600 016.
2.The State Represented by
The Inspector of Police
S-3, Meenampakkam Police Station
Chennai District. ... Respondents
PRAYER: Criminal Revision Case filed under section 397 r/w 401 of
Criminal Procedure Code to set aside the order dated 23.01.2023 made in
M.P.No.1 of 2023 in RC No.99/Sec.Pro/DCP STM/2022 dated 23.01.2023
on the file of the Executive Magistrate cum Deputy Commissioner of
Police, St. Thomas Mount.
For Petitioner ... Ms.G.Gayathri
For Respondents ... Mr.R.Vinothraja
Government Advocate (Crl.Side)
1/6
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.703 of 2023
ORDER
Challenging the order dated 23.01.2023 passed by the first
respondent under Section 122 (1)(b) Cr.P.C., in M.P.No.1 of 2023 in RC
No.99/Sec.Pro/DCP STM/2022 in Sl.No.06/S-2(Crime)/BO/2022 Under
Section 109 Cr.P.C., on the file of S-3, Meenampakkam 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 23.01.2023 in M.P.No.1 of 2023 in
RC No.99/Sec.Pro/DCP STM/2022 under Section 122(1)(b) Cr.P.C,
pursuant to the case in Sl.No.06/S-2(Crime)/BO/2022 under Section 109
Cr.P.C., on the file of S-3, Meenampakkam Police Station and remanded
the petitioner till 01.07.2023. 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.703 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
Inspector of Police, S-3, Meenampakkam Police Station, has proceeded to
initiate proceedings against the petitioner 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 01.07.2023. The impugned order dated 23.01.2023 passed by the
first respondent in M.P.No.1 of 2023 in RC No.99/Sec.Pro/DCP
STM/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
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Crl.R.C.No.703 of 2023
KUMAR CASE (cited 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
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Crl.R.C.No.703 of 2023
that the first respondent is not the competent authority to impose any
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.
20.04.2023
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
S-3, Meenampakkam Police Station
Chennai District.
3.The Superintendent
Central Prison
Puzhal.
4.The Public Prosecutor
High Court of Madras
Chennai – 600 104.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.703 of 2023
V.SIVAGNANAM, J.
TK
CRL.R.C.NO.703 OF 2023
AND CRL.M.P.NO.5470 OF 2023
20.04.2023
https://www.mhc.tn.gov.in/judis
