Madras High Court
Jai Ganesh vs The Executive Magistrate Cum ... on 2 June, 2023
Crl.RC.No.935 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.R.C.No.935 of 2023 &
Crl.M.P.No.7586 of 2023
Jai Ganesh ... Petitioner
/vs/
1. The Executive Magistrate cum Deputy Commissioner of Police,
St. Thomas Mount District.
2. The State represented by the Inspector of Police,
[Law & Order], S-9 Palavanthangal Police Station,
Chennai. .. Respondents
Prayer : Criminal Revision Petition filed under section 397 read with 401 of
Cr.P.C., to set aside the Order dated 20.09.2022 under section 122 [1] [b] of
Cr.P.C. in M.P.No.21 of 2022 in Na.Ka.No.360/Nir.Se.Nad.DCP –
St.Thomas Mount Dist/2022 in S-9 Palavanthangal P.S.,
S.I.No.74/Sec/Pro.2022 u/s.110 of Cr.P.C. [on the file of the Executive
Magistrate cum Deputy Commissioner of Police, St. Thomas Mount District]
to undergo Simple Imprisonment of 358 days [from 28.08.2022 to
20.08.2023].
For petitioner ... Mr.M.Illiyas
For Respondents ... Mr.R. Vinothraja, GA (crl.side)
1/7
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Crl.RC.No.935 of 2023
ORDER
This Criminal Revision has been preferred seeking to set aside the
Order dated 20.09.2022 passed under section 122 [1] [b] of Cr.P.C. in
M.P.No.21 of 2022 in Na.Ka.No.360/Nir.Se.Nad.DCP – St.Thomas Mount
Dist/2022 in S-9 Palavanthangal P.S., S.I.No.74/Sec/Pro/2022 u/s.110 of
Cr.P.C. by the first respondent.
2. The learned counsel for the petitioner would submit that the 1st
respondent, in pursuance of the case registered by the second
respondent, initiated proceedings against the petitioner and made him
to execute a bond on 20.08.2022 under section 110 of C.P.C., for
maintaining good behaviour for a period of 12 months. Subsequently, a
case has been registered against the petitioner in Cr.No.180 of 2023
for the offence under sections 294(b), 354, 341, 506(ii) of IPC read
with Section 4 of TNPHW Act. Since the petitioner violated the bond
condition, the 1st respondent, proceeded against the petitioner under
section 122(1)(b) of Cr.P.C., and remanded the petitioner to prison by
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Crl.RC.No.935 of 2023
his proceedings in M.C.No.21 of 2022, dated 02.09.2022 to undergo
imprisonment for a period of 358 days [from 28.08.2022 to 20.08.2023] .
He further submitted that in view of the judgment of the Division
Bench of this Court dated 13.03.2023 in Cr.R.C.No.137 of 2018 batch
cases [P.Sathish @ Sathis Kumar Vs State Rep by The Inspector of
Police, Law and Order, H-4 Korukkupet Police Station, Chennai],
the impugned order passed by the 1st respondent is unsustainable,
Therefore, he seeks to set aside the impugned order passed by the 1st
respondent.
3. The learned Government Advocate (Crl.Side) appearing for the
respondents fairly conceded that the 1st respondent is not competent
authority to pass an order under Section 122(1)(b) Cr.P.C.
4.I have considered the matter in the light of submissions of the
learned counsel for the petitioner and the respondents.
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Crl.RC.No.935 of 2023
5.On perusal of the records and the impugned order, it reveals
that the 1st respondent in pursuance complaint with affidavit given by
the second respondent, initiated proceedings under section 107
Cr.P.C., against the petitioner and directed to him to execute a bond
for keeping good behaviour under section 110 of Cr.P.C., pursuant to
which, the petitioner executed a bond for keeping good behaviour on
20.08.2022 for a period of 12 months. Since the petitioner has violated
the bond executed before the Executive Magistrate, the 1st respondent
proceeded against him under Section 122(1)(b) Cr.P.C and finally
remanded him to undergo simple imprisonment for a period of 358
days [from 28.08.2022 to 20.08.2023].
6. It is relevant to note that in the order dated 13.03.2023 passed
by the Division Bench of this Court in Cr.R.C.No.137 of 2018 batch
cases [P.Sathish @ Sathis Kumar Vs State Rep by The Inspector of
Police, Law and Order, H-4 Korukkupet Police Station, Chennai],
wherein, this Court relied on the judgement of the Hon'ble Supreme
Court reported in (1982) 1 SCC 71 [Gulam Abbas Vs State of Uttar
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Crl.RC.No.935 of 2023
Pradesh]. In paragraph 80 (e) of the said order dated 02.06.2023, it
has been held as follows:-
“80 (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 Vs State
of Uttar Pradesh (1982) 1 SCC 71, an Executive
Magistrate cannot authorize imprisonment
under Section 123(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 challenged or prosecuted before the Judicial
Magistrate for inquiry and punishment under
Section 122(1)(b)Cr.P.C”
7. In the light of the above, the 1st respondent is not competent
authority to impose any punishment under Section 122(1)(b)Cr.P.C.
Therefore, the impugned order passed by the 1st respondent is set aside
and the Criminal Revision Case is allowed. Consequently, connected
miscellaneous petition is closed.
02.06.2023
https://www.mhc.tn.gov.in/judis
Crl.RC.No.935 of 2023
vrc
To
1. The Executive Magistrate cum Deputy Commissioner of Police,
St. Thomas Mount District.
2. The State represented by the Inspector of Police,
[Law & Order], S-9 Palavanthangal Police Station,
1. Chennai.
3. The Superintendent, Central Prison, Puzhal.
4. The Public Prosecutor, High Court, Madras.
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Crl.RC.No.935 of 2023
V.SIVAGNANAM, J.
vrc
Crl.R.C.No.935 of 2023
02.06.2023
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