Madras High Court
Nijamuthin vs The Sub Divisional Magistrate And on 4 May, 2023
Crl.RC.No.861 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.05.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.861 of 2023
and
Crl.M.P.No.6649 of 2023
Nijamuthin ... Petitioner
Vs.
1.The Sub Divisional Magistrate and
The Deputy Commissioner,
The Deputy Commissioner Office,
Adyar, Chennai.
2.The Inspector of Police,
J-8, Neelankarai Police Station,
Law and Order,
Neelankarai, Chennai. ... Respondents
Prayer:- Criminal Revision Petition filed under Section 397 r/w 401
Cr.P.C. to set aside the order in M.P.No.4 of 2023 in
Na.Ka.No.235/Sa.Na & Ka.Tu.Aa. Adyar District/ 2022 vide an order
dated 03.03.2023 on the file of the 1st respondent and to allow the above
Criminal Revision Case.
Page 1 of 7
https://www.mhc.tn.gov.in/judis
Crl.RC.No.861 of 2023
For Petitioner : Mr.R.Parthiban
For Respondents : Mr.V.Meganathan,
Government Advocate (Crl. Side)
ORDER
This Revision has been filed challenging the order passed in
M.P.No.4 of 2023 in Na.Ka.No.235/Sa.Na & Ka.Tu.Aa. Adyar District/
2022 vide an order dated 03.03.2023 on the file of the 1st respondent,
thereby detained the petitioner for the remaining bond period under
Section 122(1)(b) of Cr.P.C.
2. The learned counsel for the petitioner would submit that
after executing a bond under section 110 of Cr.P.C., for maintaining
good behaviour for one year, a case has been registered against the
petitioner in Cr.No.1276 of 2020 for the offence under sections 294(b),
341, 323 506(ii) of IPC. Since the petitioner violated the bond condition,
the 1st respondent, proceeded against the petitioner and remanded the
petitioner to prison by his proceedings under section 122(1)(b) of Cr.P.C.
in M.P.No.4 of 2023 in Na.Ka.No.235/Sa.Na & Ka.Tu.Aa. Adyar
District/ 2022 vide an order dated 03.03.2023 to undergo imprisonment
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Crl.RC.No.861 of 2023
for 131 days from 03.03.2022.
3. 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.
4.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.
5.I have considered the matter in the light of submissions of the
learned counsel for the petitioner and the respondents.
6.On perusal of the records and the impugned order, it reveals
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Crl.RC.No.861 of 2023
that since the petitioner has violated the bond executed under Section
110 Cr.P.C, the 1st respondent proceeded against him under Section
122(1)(b) Cr.P.C and remanded him to undergo imprisonment for the
remaining period of the bond from 03.03.2022.
7. It is relevant to note that in the common judgment passed by
a 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:~
“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
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Crl.RC.No.861 of 2023
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”
8.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, dated 03.03.2023 passed by the 1st
respondent is set aside and the Criminal Revision Case is allowed.
Consequently, connected miscellaneous petition is closed.
04.05.2023
Index:Yes/No
Internet:Yes/No
dsa/jv
https://www.mhc.tn.gov.in/judis
Crl.RC.No.861 of 2023
To
1.The Sub Divisional Magistrate and
The Deputy Commissioner,
The Deputy Commissioner Office,
Adyar, Chennai.
2.The Inspector of Police,
J-8, Neelankarai Police Station,
Law and Order,
Neelankarai, Chennai.
3. The Superintendent, Central Prison Puzhal-2, Chennai.
4.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.861 of 2023
G.K.ILANTHIRAIYAN, J.
dsa/jv
Crl.R.C.No.861 of 2023
and
Crl.M.P.No.6649 of 2023
04.05.2023
https://www.mhc.tn.gov.in/judis
