Madras High Court
Ranganathan vs The Executive Magistrate Cum on 24 April, 2023
Crl.R.C.No.736 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.04.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
CRL.R.C.NO.736 OF 2023
Ranganathan ... Petitioner
Vs.
1.The Executive Magistrate cum
Deputy Commissioner of Police (South)
Coimbatore.
2.State Rep. By the Special Sub – Inspector
Prohibition Enforcement Wing
Coimbatore City.
(Crime No.198/2023)
3.The Superintendent of Prison
Central Prison, Coimbatore. ... Respondents
PRAYER: Criminal Revision Case filed under Section 397(1) r/w 401 of
Criminal Procedure Code to call for the records and set aside the order
dated 22.02.2023 passed under Section 122(1)(b) Cr.P.C., vide
M.C.No.05/2023 by the first respondent viz., the Executive Magistrate
cum Deputy Commissioner of Police (South) Coimbatore sentencing him
to undergo imprisonment for a period of 342 days i.e., till 29.01.2024 and
release him from prison.
For Petitioner ... Mr.T.R.Sivaram
For Respondents ... Mr.R.Vinothraja
Government Advocate (Crl.Side)
1/6
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.736 of 2023
ORDER
Challenging the order dated 22.02.2023 passed under Section
122(1)(b) Cr.P.C., in M.C.No.05/2023 by the first respondent viz., the
Executive Magistrate cum Deputy Commissioner of Police (South)
Coimbatore, sentencing the petitioner to undergo imprisonment for a
period of 342 days i.e., till 29.01.2024 and for a direction to release him
from prison, the petitioner is before this Court.
2.The learned counsel for the petitioner would submit that the
first respondent passed an order dated 22.02.2023 under Section 122(1)(b)
Cr.P.C., in M.C.No.05/2023 pursuant to the case in Crime No.198/2023
registered under Sections 4(1)(a) and 4(1)(i) of TNP Act on the file of
second respondent police and remanded the petitioner till 29.01.2024. He
would further submit that the petitioner had moved an bail application in
Crl.M.P.No.1063 of 2023 before the District Munsif cum Judicial
Magistrate Court, Madukarai and by order dated 15.03.2023, he was
granted bail. Despite being granted bail and after having executed sureties
as per the above order, the petitioner is still confined at Central Prison,
Coimbatore. The impugned order is unsustainable, in view of the order of
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Crl.R.C.No.736 of 2023
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.
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. and the petitioner is confined at Central Prison, Coimbatore.
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
second respondent, the Special Sub-Inspector of Police, Prohibition
Enforcement Wing, Coimbatore City, has proceeded to initiate proceedings
against the petitioner and directed to execute the bond with two sureties.
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Crl.R.C.No.736 of 2023
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
29.01.2024. The impugned order dated 22.02.2023 passed by the first
respondent in M.P.No.05 of 2023 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 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”
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Crl.R.C.No.736 of 2023
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
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
is allowed. The third respondent is directed to release the petitioner
forthwith, unless his presence is required in connection with any other
case.
24.04.2023
Internet : Yes/No
Note : Issue order copy on 25.04.2023
TK
To
1.The Executive Magistrate cum
Deputy Commissioner of Police (South)
Coimbatore.
2.The Special Sub – Inspector
Prohibition Enforcement Wing
Coimbatore City.
3.The Superintendent of Prison
Central Prison
Coimbatore.
4.The Public Prosecutor
High Court of Madras
Chennai – 600 104.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.736 of 2023
V.SIVAGNANAM, J.
TK
CRL.R.C.NO.736 OF 2023
24.04.2023
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