Madras High Court
Anwar Basha vs State Rep By on 30 November, 2023
Crl.R.C.(MD).No.1302 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.11.2023
CORAM
THE HONOURABLE MR. JUSTICE P.VADAMALAI
Crl.R.C.(MD).No.1302 of 2023
and
Crl.M.P(MD).No.16578 of 2023
Anwar Basha .. Petitioner
Vs.
1.State rep by
The Executive Magistrate and Tahsildar,
Aranthangi,
Pudukottai District.
2.The Inspector of Police,
Aranthangi Police Station,
Pudukottai District.
3. The Superintendent of Prison,
Central Prison,
Tiruchirappalli. ... Respondents
PRAYER: This Criminal Revision Case is filed under Sections 397 r/w
401 of the Criminal Procedure Code, to call for the records connected with
the order passed by the first respondent in M.C.No.19/2023/B7 order dated
30.10.2023 against the petitioner namely, Anwar Basha, S/o.Akbar Badusha,
1/7
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Crl.R.C.(MD).No.1302 of 2023
male, aged about 22 years, who is detained at central Prison, Trichy and set
aside the same as illegal.
For Petitioner : Mr.M.Karunakaran
For Respondents : Mr.S.Sanjay Gandhi
Government Advocate (Crl. Side)
ORDER
This Criminal Revision is filed to call for the records connected with
the order passed by the first respondent in M.C.No.19/2023/B7 order dated
30.10.2023 against the petitioner namely, Anwar Basha, S/o.Akbar Badusha,
male, aged about 22 years, who is detained at central Prison, Trichy and set
aside the same as illegal.
2. The impugned order passed by the first respondent wherein, the
petitioner was arrested on 28.10.2023 and detained under Section 122(1)(b)
of Cr.P.C for the violation of bond condition executed under Section 110 of
Cr.P.C dated 12.06.2023, he involved in the offence after executing the bond
under Section 110(e) of Cr.P.C. Aggrieved by the said order, the petitioner
has preferred the present revision.
3. The learned counsel appearing for the petitioner would submit the
first respondent has no jurisdiction to pass the impugned order under
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Crl.R.C.(MD).No.1302 of 2023
Section 122 (1)(b) of Cr.P.C for which, he placed reliance of the Hon'ble
Division Bench judgment in P.Sathish @ Sathish Kumar Vs. State
reported in 2023 (1) MWN (Crl.) 499 and he seeks to set aside the
impugned order.
4. The learned Government Advocate (Crl. Side) submitted that
against the above said order they are going to file SLP before the Hon'ble
Supreme Court.
5. This Court considered the rival submission made by both parties.
6.The issue in this case is that whether the first respondent has
jurisdiction to pass impugned order under Section 122(1)(b) of Cr.P.C
against the petitioner. The said issue was answered by the Hon'ble Division
Bench judgment in P.Sathish @ Sathish Kumar Vs. State reported in 2023
(1) MWN (Crl.) 499 negatively in the following terms:-
“88. Now that we have ousted the camel and put
the canopy of justice back to where it belongs, our
answers to the questions formulated in paragraph 2 are
as under:
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Crl.R.C.(MD).No.1302 of 2023
(a) GO.Ms. No. 659, dated 12.09.2013 and GO.Ms. No.
181, dated 20.02.2014 vesting Deputy Commissioners of
Police with the powers of an Executive Magistrate for
the purposes of Section 107 to 110 Cr.P.C., suffer from
manifest arbitrariness and violates the principle of
separation of powers under the Constitution. The GO's
are consequently violative of Articles 14, 21 and 50 of
the Constitution of India and the proviso to Section 6 of
the Madras District Police Act. Resultantly, we declare
GO.MS. No. 659, dated 12.09.2013 and GO.MS. No.
181, dated 20.02.2014 as unconstitutional and ultra
vires the aforesaid provisions. Consequently, the status
quo ante that prevailed prior to the issuance of GO.MS.
No. 659, dated 12.09.2013 and GO.MS. No. 181, dated
20.02.2014 stands restored forthwith.
(b) Ex-consequenti, the decision in Balamurugan v.
State, MANU/TN/2058/2016, will stand overruled.
(c) Violation of a bond executed under Section 110 of
the Cr.P.C., can be dealt with under Section 446 of the
Code and not under Section 122(1)(b) of the Cr.P.C.
Consequently, we affirm the judgment of Mr. Justice P.N.
Prakash in Devi v. Executive Magistrate
(MANU/TN/5284/2020 : 2020 6 CTC 157) in its entirety.
The decision of the learned single judge to the contrary
in Vadivel @ Mettai Vadivel v. The State (Crl.R.C. No.
982 of 2018 etc., batch) will stand overruled.
(d) GO.Ms. No. 659, dated 12.09.2013 and GO.Ms. No.
181, dated 20.02.2014 were issued only in exercise of
powers under Section 20(1) of the Cr.P.C., and these
Government Orders have been held to be
unconstitutional. And;
(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 v. State of Uttar Pradesh
MANU/SC/0059/1981 : (1982) 1 SCC 71, an Executive
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Crl.R.C.(MD).No.1302 of 2023
Magistrate cannot authorize imprisonment under
Section 122(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 challaned or prosecuted before
the Judicial Magistrate for inquiry and punishment
under Section 122(1)(b) Cr.P.C.”
...........
............
92.In the light of the law declared in paragraph 88 (e),
supra, orders passed even by the Revenue Authorities
acting as Executive Magistrates, by exercising powers
under Section 122(1)(b) Cr.P.C., will have to be
quashed.
7.In view of the above ratio, this Court is inclined to set aside the
impugned order passed by the first respondent in M.C.No.19/2023/B7 dated
30.10.2023 and accordingly, this Criminal Revision Case stands allowed.
Consequently, the connected miscellaneous petition is closed. The petitioner
is ordered to be released forthwith, if his presence is not otherwise required
in connection with any other case.
30.11.2023
Index : Yes / No
Internet : Yes / No
tta
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Crl.R.C.(MD).No.1302 of 2023
To,
1.The Executive Magistrate and Tahsildar,
Aranthangi,
Pudukottai District.
2.The Inspector of Police,
Aranthangi Police Station,
Pudukottai District.
3. The Superintendent of Prison,
Central Prison,
Tiruchirappalli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.R.C.(MD).No.1302 of 2023
P.VADAMALAI, J
tta
Crl.R.C.(MD).No.1302 of 2023
30.11.2023
https://www.mhc.tn.gov.in/judis
