Madras High Court
S.Sunil Kumar vs The Executive Magistrate Cum on 6 June, 2023
Crl.R.C.No.836 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
CRL.R.C.NO.836 OF 2023
AND CRL.M.P.NO.6405 OF 2023
S.Sunil Kumar ... Petitioner
Vs.
1.The Executive Magistrate cum
Deputy Commissioner of Police
Redhills District,
Chennai.
2.State Rep. By Inspector of Police
(Law & Order)
M-5, Ennore Police Station,
Chennai – 600 057. ... Respondents
PRAYER: Criminal Revision Case filed under Section 397 read with 401
Cr.P.C., to set aside the order dated 05.10.2022 passed in
M.P.No.03/2022 in RC No.77/Sec.Pro/DCP RED/2022 in M5 Ennore
Police Station Sl.No.25/2022 U/s. 110 Cr.P.C., on the file of the 1 st
respondent Executive Magistrate cum Deputy Commissioner of Police,
Redhills District u/s.122(1)(b) r/w. 110 Cr.P.C., ordering to detain the
petitioner for 286 days by allowing this revision.
1/6
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.836 of 2023
For Petitioner ... Mr.Azaghu P.Senthil Kumar
For Respondents ... Mr.R.Vinothraja
Government Advocate (Crl.Side)
ORDER
Challenging the order dated 05.10.2022 passed under Section
122(1)(b) Cr.P.C., in M.P.03/2022 by the first respondent viz., the
Executive Magistrate cum Deputy Commissioner of Police, Redhills
District, Chennai, sentencing the petitioner to undergo imprisonment for a
period of 286 days from 05.10.2022 and for a direction to release him
from prison, the petitioner is before this Court.
2.The learned counsel for the petitioner would submit that the
first respondent passed an order dated 05.10.2022 under Section 122(1)(b)
Cr.P.C., in M.P.No.03/2022 pursuant to the case in Crime No.564/2022
registered under Sections 147, 148, 341, 294(b), 323, 324, 307 and 506(ii)
IPC and Sl.No.25/2022 u/s.110 Cr.P.C., on the file of second respondent
police and remanded the petitioner. The impugned order is unsustainable,
in view of the order of the Division Bench of this Court in P.SATHISH @
SATHISH KUMAR AND OTHERS VS. THE STATE REP. BY THE
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Crl.R.C.No.836 of 2023
INSPECTOR OF POLICE AND OTHERS [CRL.R.C. NO.137 OF 2018
AND ETC., BATCH CASES, DECIDED ON 13.03.2023]. Therefore, he
seeks to set aside the impugned order passed by the first respondent.
3.The learned Government Advocate (Criminal Side)
appearing for the respondents fairly conceded that the first respondent is
not the competent authority to pass an order under Section 122(1)(b)
Cr.P.C. and the petitioner is confined at Central Prison, Puzhal, Chennai.
4.I have considered the matter in the light of submissions of
the learned counsel for the petitioner and the respondents.
5.On perusal of the records and the impugned order, it reveals
that the first respondent in pursuance of the complaint given by the
second respondent, the Inspector of Police (Law & Order) M-5, Ennore
Police Station, Chennai has proceeded to initiate proceedings against the
petitioner and directed to execute the bond with two sureties. Since the
petitioner has violated the bond executed before the Executive Magistrate,
the first respondent proceeded against him further under Section 122(1)(b)
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Crl.R.C.No.836 of 2023
Cr.P.C and finally ordered to remand him for 286 days from 05.10.2022.
The impugned order dated 05.10.2022 passed by the first respondent in
M.P.No.03 of 2022 under Section 122(1)(b) Cr.P.C, is unsustainable, in
view of the order of the Division Bench of this Court in P.SATHISH @
SATHISH KUMAR CASE (cited supra) wherein, in paragraph 80 (e), this
Court, relied on a judgment of the Hon'ble Supreme Court in GULAM
ABBAS VS STATE OF UTTAR PRADESH] [1982) 1 SCC 71] has 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”
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Crl.R.C.No.836 of 2023
6.In the light of the above, this Court is of the considered view
that the first respondent is not the competent authority to impose any
punishment under Section 122(1)(b) Cr.P.C. Therefore, the impugned
order passed by the first respondent is set aside and the Criminal Revision
is allowed. Consequently, connected miscellaneous petition is closed.
06.06.2023
Internet : Yes/No
TK
To
1.The Executive Magistrate cum
Deputy Commissioner of Police
Redhills District, Chennai.
2.State Rep. By Inspector of Police
(Law & Order)
M-5, Ennore Police Station,
Chennai – 600 057.
3.The Superintendent
Central Prison
Puzhal, Chennai.
4.The Public Prosecutor
High Court of Madras
Chennai – 600 104.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.836 of 2023
V.SIVAGNANAM, J.
TK
CRL.R.C.NO.836 OF 2023
06.06.2023
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