Madras High Court
M.Madhukumar vs The Second Class Executive ... on 11 July, 2023
Crl.R.C.(MD).No.417 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 11.07.2023
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.RC(MD)No.417 of 2023
M.Madhukumar ... Petitioner/Petitioner
Vs.
1.The Second Class Executive Magistrate,
Tahsildar,
Athoor Division,
Dindigul District.
2.State by
The Inspector of Police,
Pattiveeranpatti Police Station,
Dindigul District. ... Respondents/Complainants
PRAYER: Criminal Revision Petition has been filed under Section 397 r/w. 401
of Cr.P.C., to call for the records pertaining to the order passed in M.C.No.98 /
2022 / Aa3, dated 01.02.2023 on the file of the 1st respondent and set aside the
same.
For Petitioner : Mr.G. Karuppasamy Pandiyan
For Respondents : Mr.P. Kottaichamy
Government Advocate (Crl.Side)
1/6
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Crl.R.C.(MD).No.417 of 2023
ORDER
This Criminal Revision is filed to quash the order on the file of the first
respondent, dated 01.02.2023 in M.C.No.98 / 2022 / Aa3.
2. The impugned order passed by the first respondent wherein, the
petitioner was arrested 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
17.11.2023 i.e., he involved in the offence after executing the bond under
Section 110 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 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 for quashment of impugned order.
4. The learned Government Advocate (Crl. Side) submitted that against the
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Crl.R.C.(MD).No.417 of 2023
above said order they are going to file SLP before the Hon'ble Supreme Court.
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.
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Crl.R.C.(MD).No.417 of 2023
(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 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.
8.In the result, the Criminal Revision is allowed and the impugned order
dated 01.02.2023, passed by the first respondent / Second Class Executive
Magistrate, Tahsildar, Athoor Division, Dindigul District, in M.C.No.98 / 2022 /
Aa3, is hereby set aside and therefore, the petitioner is directed to be released
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Crl.R.C.(MD).No.417 of 2023
forthwith, unless his custody is required in connection with any other case.
11.07.2023
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
dss
Note : Issue order copy on 17.07.2023
To
1.The Second Class Executive Magistrate,
Tahsildar,
Athoor Division,
Dindigul District.
2.The Inspector of Police,
Pattiveeranpatti Police Station,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C.(MD).No.417 of 2023
K.K.RAMAKRISHNAN, J.
trp
Crl.RC(MD)No.417 of 2023
11.07.2023
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