Shanmugasundaram vs The Executive Magistrate /
2023 Latest Caselaw 8026 Mad

Citation : 2023 Latest Caselaw 8026 Mad
Judgement Date : 11 July, 2023

Madras High Court

Shanmugasundaram vs The Executive Magistrate / on 11 July, 2023

                                                                             Crl.R.C.(MD).No.361 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.361 of 2023

                Shanmugasundaram                                            ... Petitioner / Detenu

                                                       Vs.


                1.The Executive Magistrate /
                      Deputy Commissioner of Police,
                Madurai City,
                Madurai.

                2.The Inspector of Police,
                D-3, Koodalpudur Police Station,
                Koodalpudur,
                Madurai City.

                3.The Superintendent of Police,
                Central Prision,
                Madurai,
                Madurai District.                                               ... Respondents

                PRAYER: Criminal Revision Case has been filed under Section 397 & 401 of
                Cr.P.C., to call for the records pertaining to the order, dated 08.02.2023 passed
                by the 1st respondent / the Executive Magistrate / Deputy Commissioner of
                Police            (North),   Madurai     City    in   M.C.No.259/      Ni.Se.Na       and
                Ka.Thu.Aa/Ma.Maa/2022 and set aside the same.

                1/6
https://www.mhc.tn.gov.in/judis
                                                                           Crl.R.C.(MD).No.361 of 2023

                                      For Petitioner     : Mr.N. Pragalathan

                                      For Respondents : Mr.P.Kottaichamy
                                                        Government Advocate (Crl.Side)

                                                       ORDER

This Criminal Revision is filed to quash the order on the file of the first

respondent, dated 08.02.2023 in M.C.No.259/ Ni.Se.Na and Ka.Thu.Aa/

Ma.Maa/ 2022 in LIR.No.58 of 2022.

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

08.02.2023 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.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.361 of 2023

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.

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,

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.361 of 2023

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 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 dated 08.02.2023 passed by the first respondent viz, the Executive

Magistrate / Deputy Commissioner of Police, Madurai City, Madurai in

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.361 of 2023

M.C.No.259/ Ni.Se.Na and Ka.Thu.Aa/ Ma.Maa/ 2022 in LIR.No.58 of 2022 is

hereby set aside and therefore, the petitioner is directed to be released forthwith,

unless his custody is required in connection with any other case.

11.07.2023 NCC : Yes/No Index : Yes/No Internet: Yes/No trp

Note : Issue order copy on 13.07.2023

1.The Second Class Executive Magistrate and Tahsildar, Office of the Executive Magistrate and Tahsildar, Mudukulathur, Ramanathapuram District.