Madras High Court
Ragupathy vs The Ii Class Executive Magistrate Cum ... on 8 December, 2023
Crl.R.C.(MD).No.1339 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated :08.12.2023
CORAM
THE HONOURABLE MR. JUSTICE P.VADAMALAI
Crl.R.C.(MD).No.1339 of 2023
Ragupathy .. Petitioner / Respondent
Vs.
1.The II Class Executive Magistrate Cum Thasildhar,
Dindigul District,
Dindigul West,
Dindigul District.
2.The Inspector of Police,
Rettiyar Chathiram Police Station,
Dindigul District.
3.The Superintendent,
District Jail,
Dindigul. ... Respondents
PRAYER: This Civil Revision Case is filed under Sections 397 r/w 401 of the
Criminal Procedure Code, to call for the records relating to the proceedings of the
first respondent in Na.Ka.No.6068/2023/A5 dated 08.11.2023 and set aside the
same.
For Petitioner : Mr.D.Venkatesh
For Respondents : Mr.K.Sanjay Gandhi
https://www.mhc.tn.gov.in/judis Government Advocate (Crl. Side)
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Crl.R.C.(MD).No.1339 of 2023
ORDER
This Criminal Revision is filed to call for the records relating to the
proceedings of the first respondent in Na.Ka.No.6068/2023/A5 dated 08.11.2023
and set aside the same.
2. The impugned order passed by the first respondent wherein, the petitioner
was arrested on 29.10.2023 and detained under Section 122(1)(b) of Cr.P.C for the
violation of bond condition executed under Section 110 of Cr.P.C dated 04.07.2023,
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)(b)
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 to set aside the 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.1339 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
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Crl.R.C.(MD).No.1339 of 2023
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. 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
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Crl.R.C.(MD).No.1339 of 2023
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.”
...........
............
92.In the light of the law declared in paragraph 88 (e), supra, orders
passed even by the Revenue Authorities acting as Executive Magistrates,
by exercising powers under Section 122(1)(b) Cr.P.C., will have to be
quashed.
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Crl.R.C.(MD).No.1339 of 2023
7.In view of the above ratio, this Court is inclined to set aside the impugned
order passed by the first respondent in Na.Ka.No.6068/2023/A5 dated 08.11.2023
and accordingly, this Criminal Revision Case stands allowed. The petitioner is
ordered to be released forthwith, if his presence is not otherwise required in
connection with any other case.
Sd/-
Assistant Registrar(RTI)
// True Copy //
08/12/2023
Sub Assistant Registrar(CS)
tta
To,
1.The II Class Executive Magistrate Cum Thasildhar,
Dindigul District,
Dindigul West,
Dindigul District.
2.The Inspector of Police,
Rettiyar Chathiram Police Station,
Dindigul District.
3.The Superintendent,
District Jail,
Dindigul.
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Crl.R.C.(MD).No.1339 of 2023
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
COPY TO:
THE SECTION OFFICER,
CRIMINAL RECORDS,
MADURAI BENCH OF MADRAS HIGH COURT,
MADURAI. (2 Copies)
+1 CC to M/s.D.VENKATESH, Advocate ( SR-55612[F] dated 08/12/2023 )
Crl.R.C.(MD).No.1339 of 2023
08.12.2023
MK/08.12.2023 7P 8C
Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023
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