Madras High Court
Rasaiyyah vs The Executive Magistrate Cum ... on 21 March, 2023
Crl.R.C.No.524 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.03.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.R.C.No.524 of 2023
and Crl.M.P.No.4001 of 2023
Rasaiyyah ... Petitioner
/vs/
1. The Executive Magistrate cum Deputy Commissioner of Police,
Washermentpet District, Chennai.
2. The State Represented by
The Inspector of Police (Law & Order),
H-8, Thiruvottiyur Police Station,
Chennai-600 019. ... Respondents
Prayer : Criminal Revision Case filed under section 397 r/w 401 of Cr.P.C,
to set aside the order dated 09.01.2023 u/s.122 (1)(b) of Cr.P.C., in
M.P.No.01 of 2023 in M.C.No.1592/Sec.Pro/DCP-WPT/2022 in H-8,
Thiruvottiyur P.S., LIR No.248/2022 u/s.110 of Cr.P.C. (On the file of the
Executive Magistrate cum Deputy Commissioner of Police, Washermenpet
District) to undergo Imprisonment of 303 days.
For petitioner ... Mr.M.Illiyas
For Respondents ... Mr.R.Vinothraja,
Government Advocate (Crl.Side)
ORDER
Challenging the order dated 09.01.2023 passed by the 1st respondent in
M.P.No.01 of 2023 in M.C.No.1592/Sec.Pro/DCP-WPT/2022 in H-8,
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.524 of 2023
Thiruvottiyur P.S., LIR No.248/2022, this Criminal Revision is filed by the
petitioner.
2. The learned counsel for the petitioner would submit that the 1st
respondent passed an order, by his proceedings in M.P.No.01 of 2023 in
M.C.No.1592/Sec.Pro/DCP-WPT/2022 in H-8, Thiruvottiyur P.S., LIR
No.248/2022, dated 09.01.2023 under Section 122(1) of Cr.P.C and
remanded the petitioner to undergo imprisonment for 303 days. This
impugned order is unsustainable, 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]. 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.R.C.No.524 of 2023
5.On perusal of the records and the impugned order, it reveals that the
1st respondent in pursuance of the complaint given by the 2nd respondent,
Inspector of Police (Law and Order), H-8, Tiruvottiyur Police Station,
Chennai proceeded the proceedings against the petitioner under Section 110
Cr.P.C and directed to execute the bond with two sureties. 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 ordered to remand him to undergo imprisonment for 303 days. The
impugned order passed by the 1st respondent dated 09.01.2023 in M.P.No.01
of 2023 in M.C.No.1592/Sec.Pro/DCP-WPT/2022 in H-8, Thiruvottiyur P.S.,
LIR No.248/2022 is unsustainable, in view of the order 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], 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 Pradesh]. In paragraph 80 (e) of
the said order dated 13.03.2023, it has been held as follows:-
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Crl.R.C.No.524 of 2023
“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”
6.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. The Superintendent of Prison, Central Prison,
Puzhal, Chennai is directed to release the petitioner forthwith, if his detention
is no longer required in any other case. Consequently, connected
miscellaneous petition is closed.
21.03.2023
srn
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.524 of 2023
To
1. The Executive Magistrate cum Deputy Commissioner of Police,
Washermentpet District, Chennai.
2. The Inspector of Police (Law & Order),
H-8, Thiruvottiyur Police Station,
Chennai-600 019.
3. The Superintendent of Prison,
Central Prison, Puzhal, Chennai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.524 of 2023
V.SIVAGNANAM, J.
srn
Crl.R.C.No.524 of 2023
and Crl.M.P.No.4001 of 2023
21.03.2023
https://www.mhc.tn.gov.in/judis
