Madras High Court
Anbarasu vs The Executive Magistrate Cum ... on 25 April, 2023
Crl.RC No.738 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.RC No.738 of 2023
& Crl.MP.No.5755 of 2023
Anbarasu ... Petitioner
Vs.
1. The Executive Magistrate Cum Tahsildar,
Coimbatore North, Coimbatore.
2. State Rep by
Inspector of Police,
Thudiyalur Police Station,
Coimbatore ... Respondent
Prayer: Criminal Revision Petition filed under Section 397 r/w 401
Cr.P.C. to call for the records in respect of the impugned order passed
on 11.02.2023 by the Hon'ble Executive Magistrate cum Tahsildar,
Coimbatore, 1st respondent herein in Na.Ka.No.633/2023/Aa1 and set
aside the same.
For Petitioner : Mr.R.Radha Pandian
For Respondents : Mr.R.Vinothraja,
Government Advocate (Crl. Side)
Page 1 of 6
https://www.mhc.tn.gov.in/judis
Crl.RC No.738 of 2023
ORDER
This petition has been filed to set aside the order dated
11.02.2023 in Na.Ka.No.633/2023/Aa1 on the file of the first
respondent.
2. The learned counsel for the petitioner would submit that
after executing a bond under section 110 of C.P.C., for maintaining
good behaviour for one year, a case has been registered against the
petitioner in Cr.No. 66 of 2023 on 04.02.2023 for the offence
under sections 8(c), 20(b) (ii)(B), 25 and 29(i) NDPS Act. Since
the petitioner violated the bond condition, based on a complaint
given by the 2nd respondent, the 1st respondent, proceeded against
the petitioner and remanded the petitioner to prison by his
proceedings under section 122(1)(b) of Cr.P.C. in
Na.Ka.No.633/2023/Aa1 dated 11.02.2023 to undergo imprisonment
until 01.02.2024.
https://www.mhc.tn.gov.in/judis
Crl.RC No.738 of 2023
3. He further submitted that in view of the judgment of the
Division Bench of this Court dated 13.03.2023 in Cr.R.C.No.137
of 2018 batch cases [P.Sathish @ Sathis Kumar Vs State Rep by
The Inspector of Police, Law and Order, H-4 Korukkupet Police
Station, Chennai], the impugned order passed by the 1st
respondent is unsustainable, Therefore, he seeks to set aside the
impugned order passed by the 1st respondent.
4.The learned Government Advocate (Crl.Side) appearing
for the respondents fairly conceded that the 1st respondent is not
competent authority to pass an order under Section 122(1)(b)
Cr.P.C.
5.I have considered the matter in the light of submissions of
the learned counsel for the petitioner and the respondents.
https://www.mhc.tn.gov.in/judis
Crl.RC No.738 of 2023
6.On perusal of the records and the impugned order, it
reveals that since the petitioner has violated the bond executed
under Section 110 Cr.P.C, the 1st respondent proceeded against
him under Section 122(1)(b) Cr.P.C and remanded him to undergo
imprisonment for the remaining period of the bond till 01.02.2024.
7. It is relevant to note that in the common judgment passed
by a Division Bench of this Court dated 13.03.2023 in
Cr.R.C.No.137 of 2018 batch cases [P.Sathish @ Sathis Kumar
Vs State Rep by The Inspector of Police, Law and Order, H-4
Korukkupet Police Station, Chennai], wherein, this Court relied
on the judgement of the Hon'ble Supreme Court reported in (1982)
1 SCC 71 [Gulam Abbas Vs State of Uttar Pradesh]. In
paragraph 80 (e) of the said order dated 13.03.2023, it has been
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
https://www.mhc.tn.gov.in/judis
Crl.RC No.738 of 2023
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”
8.In the light of the above, the 1st respondent is not
competent authority to impose any punishment under Section
122(1)(b) Cr.P.C. Therefore, the impugned order, dated
11.02.2023 passed by the 1st respondent is set aside and the
Criminal Revision Case is allowed. Consequently, connected
miscellaneous petition is closed.
25.04.2023
Index:Yes/No
Internet:Yes/No
srn
V.SIVAGNANAM, J.
https://www.mhc.tn.gov.in/judis
Crl.RC No.738 of 2023
srn
To
1. The Executive Magistrate Cum Tahsildar,
Coimbatore North, Coimbatore.
2. The Inspector of Police,
Thudiyalur Police Station,
Coimbatore
3. The Superintendent, Central Prison, Coimbatore
4.The Public Prosecutor, High Court, Madras.
Crl.RC No.738 of 2023
& Crl.MP.No.5755 of 2023
25.04.2023
https://www.mhc.tn.gov.in/judis
