Madras High Court
Gowrishankar @ Poonaiyan vs The Second Class Administrative on 25 May, 2023
Crl.RC.No.897 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.05.2023
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.RC.No.897 of 2023
and Crl.M.P.No.7263 of 2023
Gowrishankar @ Poonaiyan ... Petitioner
Versus
1.The Second Class Administrative
Magistrate Cum Revenue Tahsildar,
Bhavani, Erode District.
2.State Rep. by
The Inspector of Police,
Bhavani Police Station,
Erode District ... Respondents
PRAYER: Criminal Revision has been filed under Sections 397 and 401 of
the Code of Criminal Procedure to set aside the order in
Na.Ka.No.2098/2023/Aa3 vide an order dated 16.05.2023 on the file of the
1st Respondent.
For Petitioner : Mr.A.Sathishkumar
For Respondents : Mr.V.J.Priyadarsana
Government Advocate (Crl.Side)
1/8
https://www.mhc.tn.gov.in/judis
Crl.RC.No.897 of 2023
ORDER
This criminal revision is directed as against the order dated
16.05.2023 passed by the first respondent in Na.Ka.No.2098/2023/Aa3,
thereby detained the petitioner for the remaining bond period.
2. The petitioner was arrested and remanded to judicial custody in
Na.Ka.No.2098/2023/Aa3. 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 03.10.2022. While pending the said bond period, he again
involved in crime No.330 of 2023 registered for the offences under Section
379 IPC. In pursuant to the registration of FIR, again he was 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.
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Crl.RC.No.897 of 2023
3. The grievance of the Petitioner is that the First Respondent without
providing any opportunity of hearing detained him for the remaining bond
period by the impugned order dated 16.05.2023.
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:
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
https://www.mhc.tn.gov.in/judis
Crl.RC.No.897 of 2023
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 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”
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Crl.RC.No.897 of 2023
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 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
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Crl.RC.No.897 of 2023
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, 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 16.05.2023 passed by the First Respondent in
Na.Ka.No.2098/2023/Aa3 is set aside. Consequently, the connected
miscellaneous petition is closed.
25.05.2023
Index:Yes/No
Speaking/Non speaking order
Anu
https://www.mhc.tn.gov.in/judis
Crl.RC.No.897 of 2023
To
1.The Second Class Administrative
Magistrate Cum Revenue Tahsildar,
Bhavani, Erode District.
2.The Inspector of Police,
Bhavani Police Station,
Erode District
3.The Public Prosecutor,
High Court of Madras
SATHI KUMAR SUKUMARA KURUP, J.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.897 of 2023
Anu
Crl.RC.No.897 of 2023
and Crl.M.P.No.7263 of 2023
25.05.2023
https://www.mhc.tn.gov.in/judis
