Madras High Court
Viji @ Vijay vs The District Sub-Collector Cum on 5 May, 2023
Crl.R.C.No.866 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.05.2023
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.866 of 2023
and
Crl.M.P.No. 6691 of 2023
Viji @ Vijay ... Petitioner
Versus
State rep by
1. The District Sub-Collector cum
Sub-Divisional Magistrate,
Ponneri.
2. Inspector of Police (L & O),
F-1 Gummidipoondi Police Station,
Thiruvallur Dt. ... Respondents
PRAYER : Criminal Revision Case filed under Section 397 and 401 of
the Code of Criminal Procedure, to set aside the order passed in
M.C.No.147 of 2022 in Na.Ka.No.COLREV-COLR/13999/2023/B-1,
dated 24.02.2023 on the file of 1st respondent.
Page No.1 of 8
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Crl.R.C.No.866 of 2023
For Petitioner : Mr.A.Samson
For Respondents : Mr.V.Meghanathan,
Govt. Advocate (Crl. Side)
ORDER
This criminal revision is directed as against the order dated
24.02.2023 passed by the first respondent in M.C.No.147/2022 in
Na.Ka.No.COLREV-COLR/13999/2023/B1, thereby directing the
petitioner to be detained in custody for the period till 24.11.2023.
2. The petitioner was arrested and remanded to judicial custody
in M.C.No.147 of 2022. In pursuant to the same, he was directed to
execute bond for a period of one year under Section 110 Cr.P.C.
Accordingly, he executed bond for a period of one year under Section
110 of Cr.P.C. on 25.11.2022. While pending the said bond period, he
again involved in crime No.27 of 2023 registered for the offences under
Sections 147, 148, 341, 324, 506(ii), 379 I.P.C. r/w 2 and 3 of TNPPDL
Act on 13.02.2023. In pursuant to the registration of FIR, again he was
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Crl.R.C.No.866 of 2023
arrested and remanded to judicial custody. Since the petitioner involved
in another case while pending bond period, he was issued show cause
notice to initiate proceedings under Section 122(1)(b) of Cr.P.C.
3. On 21.02.2023, when he was produced before the Executive
Magistrate on PT warrant, he was given opportunity to submit his
explanation for the show cause notice and he was directed to submit his
explanation. After examination of the prosecution witnesses, the first
respondent detained him for the remaining bond period by the impugned
order dated 24.02.2023.
4. Heard, the learned counsel for the petitioner and the learned
Government Advocate(crl.side) appearing for the respondents.
5. Admittedly, the first respondent initiated proceedings under
Section 122(1)(b) of Cr.P.C. It is relevant to extract the provisions under
Section 122(1)(b) of Cr.P.C. hereunder:
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Crl.R.C.No.866 of 2023
122. Imprisonment in default of security.—
(1) (b) If any person after having executed a
[bond, with or without sureties] without sureties for
keeping the peace in pursuance of an order of a
Magistrate under section 117, is proved, to the
satisfaction of such Magistrate or his successor-in-office,
to have committed breach of the bond, such Magistrate
or successor-in-office may, after recording the grounds
of such proof, order that the person be arrested and
detained in prison until the expiry of the period of the
bond and such order shall be without prejudice to any
other punishment or forfeiture to which the said person
may be liable in accordance with law.”
Thus, it is clear that if any person having been executed bond for keeping
peace in pursuance of an order under Section 117 of Cr.P.C. and violated
the condition till the expiry of bond period, the first respondent can very
well initiate proceedings under Section 122(1)(b) of Cr.P.C. on the
strength of the report from the police personnel concerned.
6. In the case on hand, admittedly the petitioner executed bond
under Section 110 of Cr.P.C as security for his good behaviour for a
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Crl.R.C.No.866 of 2023
period of one year. Therefore, the first respondent has no jurisdiction to
initiate proceedings under Section 122(1)(b) of Cr.P.C. when the accused
executed bond under Section 110 Cr.P.C. In this regard, it is relevant to
reply upon the judgment in the case of Devi Vs. The Executive
Magistrate and one another in Crl.R.C.No.78 of 2020, dated
25.09.2020, wherein this Court has held as follows:-
“36.Unlike the expression “breach of the
peace”, where “subjectivity” is the basis, good
behaviour rests on “objectivity”. All the clauses of
Section 110 Cr.P.C., except clause (g), underpin the
existence of a previous case. In fact, they use the
expression “habit / habitual” which is conspicuously
missing in clause (g). Such a requirement is not there
under Section 107 Cr.P.C. Section 110(e) Cr.P.C. which
contemplates offences committed habitually involving
breach of the peace cannot be used as a window to
enter into Section 122(1)(b) Cr.P.C., for the simple
reason that, Section 122 (1) (b) Cr.P.C. is predicated on
the nature of the bond, viz., bond for breach of the
peace and not on clause (e) of Section 110 Cr.P.C.
Thus, textually and contextually, a bond for good
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Crl.R.C.No.866 of 2023
behaviour can, by no stretch of imagination, be
telescoped into Section 122(1)(b) Cr.P.C.
37. In Anoop Singh Vs. State of Punjab, a
learned Single judge of the Punjab and Haryana High
Court has held that imprisonment under Section
122(1)(b) Cr.P.C., was not contemplated for the breach
of a good behaviour bond under Section 110 Cr.P.C.
38. There is yet another reason as to why the
Parliament did not include breach of a good behaviour
bond in Section 122(1)(b) Cr.P.C., Section 120 Cr.P.C.,
states what amounts to breach of a bond. It states that
commission or attempt to commit or the abetment of
any offence punishable with imprisonment, would
amount to breach of a bond for food behaviour. This
means that the person will have to face a regular trial
in a criminal Court for the act which gave rise to the
brach of the bond for good behaviour. If a good
behaviour bond is included in Section 122(1)(b)
Cr.P.C., there is every likelihood of the person being
imprisoned twice, viz., one for breach of the bond and
the other for the commission or the attempt to commit
the substantive offence. Supposing such a person is
imprisoned for the breach of bond, but is acquitted for
the criminal act which gave rise to the breach of bond,
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Crl.R.C.No.866 of 2023
the imprisonment suffered by him cannot be
compensated. That is why, the Legislature had thought
it fit to mulct a person who commits breach of good
behaviour bond only with civil liability, viz., forfeiture
of the bond amount and not imprisonment.”
7. In view of the above, this criminal revision is allowed and
the order dated 24.02.2023 passed by the first respondent in M.C.No.147
of 2022 in Na.Ka.No.COLREV-COLR/13999/2023/B-1 is set aside.
Consequently, connected Crl.M.P. is closed.
05.05.2023
Index: Yes/No
Internet: Yes/No
rpp/mfa
To
1. The District Sub-Collector cum
Sub-Divisional Magistrate,
Ponneri.
2. Inspector of Police (L & O),
F-1 Gummidipoondi Police Station,
Thiruvallur Dt.
3. The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.866 of 2023
G.K.ILANTHIRAIYAN, J.
rpp/mfa
Crl.R.C.No.866 of 2023
05.05.2023
https://www.mhc.tn.gov.in/judis
