Madras High Court

Ramesh @ Anbu Rameshdevar vs The Tahsildhar Cum Taluk ... on 28 April, 2023

                                                                                 Crl.O.P.No.9670 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 28.04.2023

                                                       CORAM

                          THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN

                                               Crl.O.P.No.9670 of 2023
                                             and Crl.M.P.No.6312 of 2023

                Ramesh @ Anbu Rameshdevar                           ... Petitioner

                                                          Vs.

                1. The Tahsildhar cum Taluk Executive Magistrate,
                   Office of Tahsildar,
                   Palladam,
                   Tiruppur District.

                2. The Inspector of Police,
                   Palladam Police Station,
                   Palladam,
                   Tiruppur District.                               ... Respondents

                PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., to
                call for the records of the order dated 19.04.2023 under Section 110 of Cr.P.C
                in Na.Ka.No.1902/2023/Aa2 on the file of the first respondent herein and set
                aside the same.


                                   For Petitioner  : Mr.N.Ponraj
                                   For Respondents : Mr.S.Santhosh
                                                     Government Advocate (Crl. Side)



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                                                                                          Crl.O.P.No.9670 of 2023

                                                              ORDER

This Criminal Original Petition has been filed calling for the records of

the order dated 19.04.2023 under Section 110 of Cr.P.C in

Na.Ka.No.1902/2023/Aa2 on the file of the first respondent herein and set aside

the same.

2. The learned counsel for the petitioner challenged the summon dated

19.04.2023, issued in Na.Ka.No.1902/2023/Aa2, on the following ground:-

(a) Section 110 Cr.P.C. can be invoked only against habitual offenders.

He further relied on the judgment reported in 1980 (Supp) Supreme

Court Cases 649 (Gopalanachari Vs. State of Kerala) for the proposition that

the personal liberty of a person cannot be put up to struggle under section 110

Cr.P.C unless it is justified. In paragraph 6 of the judgment, it is observed as

follows:

6. ................The constitutional survival of Section 110 depends on its obedience to Article 21, as this Court has expounded. Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of Article 21 read down to be as a fair and reasonable legislation with reverence for human rights. A glance at Section 110 that only a narrow signification can be attached to the words in clauses (a) to (g), "by habit a robber....", "by habit a receiver of stolen https://www.mhc.tn.gov.in/judis

Crl.O.P.No.9670 of 2023

property....", "habitually protects or harbours thieve....", "habitually commits or attempts to commit or abets the commission of .... ", "is so desperate and dangerous as to render his being at large without security hazardous to the community". These expressions, when they become part of the preventive chapter with potential for deprivation of a man's personal freedom upto a period of three years, must be scrutinised by the court closely and anxiously. The poor are picked up or brought up, habitual witnesses swear away their freedom and courts ritualistically commit them to prison and Article 21 is for them a freedom under total eclipse in practice. Courts are guardians of human rights. The common man looks upon the trial court as the protector. The poor and the illiterate, who have hardly the capability to defend themselves, are nevertheless not 'non-persons', the trial judges must remember, This Court in Hoskot's case has laid down the law that a person in prison shall be given legal aid at the expense of the State by the court assigning counsel. In cases under Section 110 of the Code, the exercise is often an idle ritual deprived of reality although a man's liberty is at stake. We direct the trial magistrates to discharge their duties, when trying cases under Section 110, with great responsibility and whenever the counter-petitioner is a prisoner give him the facility of being defended by counsel now that Article 21 has been reinforced by Article 39A. Otherwise the order to bind over will be bad and void.

We have not the slightest doubt that expressions like "by habit", "habitual", "desperate", "dangerous", "hazardous" cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference - that by confirmed habit, which is second https://www.mhc.tn.gov.in/judis

Crl.O.P.No.9670 of 2023

nature, the counter-petitioner . is sure to commit the offences mentioned if he is not kept captive. Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury. They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot. To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available. A sociologist may pardonably take the view that it is the poor man, the man without political clout the person without economic stamina, who in practice gets caught in the coils of Section 110 of the Code, although, we as court, cannot subscribe to any such proposition on mere assertion without copious substantiation. Even so, the court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality. After all, the judicial process must not fail functionally as the protector of personal liberty.

3. Per contra, the learned Government Advocate (Crl.Side) opposed this

petition on the ground that Section 110 (g) Cr.P.C deals with a person who is so

desperate and dangerous as to render his being at large without security,

hazardous to the community. Therefore, the petitioner can be asked to furnish

security for his good behaviour as per Section 110 (g) Cr.P.C.

4. Considered the rival submissions and perused the records.

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Crl.O.P.No.9670 of 2023

5. On going through Section 110 Cr.P.C., the heading itself shows that

security can be secured from a habitual offender for ensuring good behaviour.

Section 110 Cr.P.C. reads as follows:

110. Security for good behaviour from habitual offenders

“When an Executive Magistrate receives information that there is within his local jurisdiction a person who—

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment of disposal of stolen property, or

(d) habitually commits, or attempts to commit, or abets the Commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section 489B, section 489C or section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the Commission of, offences, involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of—

(i) any offence under one or more of the following Acts, namely:— https://www.mhc.tn.gov.in/judis

Crl.O.P.No.9670 of 2023

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);

(c) the Employees' Provident Funds and Family Pension Fund Act, 1952 (19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955 (10 of 1955);

(f) the Untouchability (Offences) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962); or

(ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.”

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Crl.O.P.No.9670 of 2023

Section 110 (g) Cr.P.C discusses about the person who is so desperate

and dangerous as to render his being at large without security, hazardous to the

community. To fit the petitioner under Section 110 (g), it must be established

that the petitioner is so desperate and dangerous that he being at large without

security would amount to hazardous to the community. No material is produced

in this regard.

6. In the said circumstances, this Court is of the considered view that the

impugned summon dated 19.04.2023 in Na.Ka.No.1902/2023/Aa2, issued by

the first respondent is contrary to law and liable to be quashed.

7. Accordingly, this Criminal Original Petition is allowed and the

impugned summon dated 19.04.2023 in Na.Ka.No.1902/2023/Aa2 on the file of

the first respondent herein is hereby quashed. Consequently, connected

miscellaneous petition is also closed.

28.04.2023

Index:Yes/No Speaking/Non speaking order mn

https://www.mhc.tn.gov.in/judis

Crl.O.P.No.9670 of 2023

G.CHANDRASEKHARAN.J.,