Madras High Court
Haris Mohamed vs The Ii Class Executive Magistrate ... on 30 August, 2023
Crl.R.C.(MD).No.965 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 30.08.2023
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.RC(MD)No.965 of 2023
Haris Mohamed ... Petitioner/Respondent
Vs.
1.The II Class Executive Magistrate cum
Thasildhar,
Dindigul District.
2.The Inspector of Police,
Dindigul Town South Police Station,
Dindigul District. ... Respondents/Complainant
PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401
of Cr.P.C., to call for the records in Na.Ka.No.11/2023/A3 dated 08.08.2023 on
the file of the learned II Class Executive Magistrate cum Thasildhar, Dindigul
East, Dindigul District and set aside the same by allowing this Criminal Revision
Case.
For Petitioner : Mr.M.Suresh
For Respondent : Mr.M.Muthumanikkam
Government Advocate (Crl.Side)
1/6
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Crl.R.C.(MD).No.965 of 2023
ORDER
This Criminal Revision is filed to quash the proceedings in Na.Ka.No.
Na.Ka.No.11/2023/A3 by the first respondent dated 08.08.2023.
2. The impugned order passed by the first respondent wherein, the
petitioner was arrested on 03.08.2023 and detained under Section 122(1)(b) of
Cr.P.C for the violation of bond condition executed under Section 110(e) of
Cr.P.C dated 27.03.2023, he involved in the offence after executing the bond
under Section 110(e) of Cr.P.C. Aggrieved by the said order, the petitioner has
preferred the present revision.
3. The learned counsel appearing for the petitioner would submit the first
respondent has no jurisdiction to pass the impugned order under Section 122 (1)
(d) of Cr.P.C for which, he placed reliance of the Hon'ble Division Bench
judgment in P.Sathish @ Sathish Kumar Vs. State reported in 2023 (1) MWN
(Crl.) 499 and he seeks for quashment of impugned order.
4. The learned Government Advocate (Crl. Side) submitted that against the
above said order they are going to file SLP before the Hon'ble Supreme Court.
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Crl.R.C.(MD).No.965 of 2023
5. This Court considered the rival submission made by both parties.
6.The issue in this case is that whether the first respondent has
jurisdiction to pass impugned order under Section 122(1)(b) of Cr.P.C against
the petitioner. The said issue was answered by the Hon'ble Division Bench
judgment in P.Sathish @ Sathish Kumar Vs. State reported in 2023 (1) MWN
(Crl.) 499 negatively in the following terms:-
“88. Now that we have ousted the camel and put the
canopy of justice back to where it belongs, our answers to
the questions formulated in paragraph 2 are as under:
(a) GO.Ms. No. 659, dated 12.09.2013 and GO.Ms. No. 181,
dated 20.02.2014 vesting Deputy Commissioners of Police
with the powers of an Executive Magistrate for the purposes
of Section 107 to 110 Cr.P.C., suffer from manifest
arbitrariness and violates the principle of separation of
powers under the Constitution. The GO's are consequently
violative of Articles 14, 21 and 50 of the Constitution of
India and the proviso to Section 6 of the Madras District
Police Act. Resultantly, we declare GO.MS. No. 659, dated
12.09.2013 and GO.MS. No. 181, dated 20.02.2014 as
unconstitutional and ultra vires the aforesaid provisions.
Consequently, the status quo ante that prevailed prior to the
issuance of GO.MS. No. 659, dated 12.09.2013 and GO.MS.
No. 181, dated 20.02.2014 stands restored forthwith.
(b) Ex-consequenti, the decision in Balamurugan v. State,
MANU/TN/2058/2016, will stand overruled.
(c) Violation of a bond executed under Section 110 of the
Cr.P.C., can be dealt with under Section 446 of the Code and
not under Section 122(1)(b) of the Cr.P.C. Consequently, we
affirm the judgment of Mr. Justice P.N. Prakash in Devi v.
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Crl.R.C.(MD).No.965 of 2023
Executive Magistrate (MANU/TN/5284/2020 : 2020 6 CTC
157) in its entirety. The decision of the learned single judge
to the contrary in Vadivel @ Mettai Vadivel v. The State
(Crl.R.C. No. 982 of 2018 etc., batch) will stand overruled.
(d) GO.Ms. No. 659, dated 12.09.2013 and GO.Ms. No. 181,
dated 20.02.2014 were issued only in exercise of powers
under Section 20(1) of the Cr.P.C., and these Government
Orders have been held to be unconstitutional. And;
(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 v. State of Uttar Pradesh MANU/SC/0059/1981 :
(1982) 1 SCC 71, an Executive Magistrate cannot authorize
imprisonment under Section 122(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 challaned or prosecuted before
the Judicial Magistrate for inquiry and punishment under
Section 122(1)(b) Cr.P.C.”
7.In view of the above ratio, this Court is inclined to quash the impugned
order passed by the first respondent in Na.Ka.No.11/2023/A3 dated 08.08.2023
and accordingly, this Criminal Revision Case stands allowed.
30.08.2023
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
dss
Note : Issue order copy on 30.08.2023
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.965 of 2023
To
1.The II Class Executive Magistrate cum
Thasildhar,
Dindigul District.
2.The Inspector of Police,
Dindigul Town South Police Station,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.965 of 2023
K.K.RAMAKRISHNAN, J.
dss
Crl.RC(MD)No.965 of 2023
30.08.2023
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