Madras High Court

Lokesh @ Ajith @ Digilo vs The Revenue Divisional Officer-Cum on 5 June, 2024

Author: M.Dhandapani

Bench: M.Dhandapani

                                                                                Crl.R.C.No.842 of 2024

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 05.06.2024

                                                          CORAM

                                    THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                                  Crl.R.C.No.842 of 2024
                                                           And
                                                 Crl.M.P.No.7540 of 2024

                     Lokesh @ Ajith @ Digilo                                     ... Petitioner

                                                            Vs.

                     1.The Revenue Divisional Officer-cum-
                       The Sub-Divisional Administrative Magistrate,
                       Madhuranthakam,
                       Chengalpattu District.

                     2.The State rep.by
                       The Inspector of Police (Law & Order),
                       G-1, Maduranthakam Police Station,
                       Chengalpattu District.                                    ... Respondents


                     Prayer:
                                  Criminal Revision Case filed under Section 397 r/w. 401 of
                     Criminal        Procedure   Code,   seeking   to   set   aside   the   order   in
                     MC.No.49/2023 Na.Ka.No.2600/2023/AA dated 31.07.2023 passed by
                     the first respondent herein.


                                      For Petitioner   : Mr.S.Kasirajan
                                      For Respondents : Mr.A.Gopinath
                                                         Government Advocate (Crl. Side)




                     1/10

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                                                                                Crl.R.C.No.842 of 2024

                                                          ORDER

The criminal revision case has been filed seeking to set aside

the order dated 31.07.2023 in MC.No.49/2023

Na.Ka.No.2600/2023/AA passed by the first respondent.

2.The learned counsel for the petitioner submitted that the

petitioner executed a bond for good behaviour under Section 117 of

Cr.P.C. on 22.05.2023 and subsequently it is alleged that the

petitioner involved in Crime No.362 of 2023 for the offence under

Sections 147, 148, 323, 324, 307 and 506 (ii) IPC of I.P.C. and he

was arrested and kept as remand prisoner in Central Prison Puzhal,

Chennai. In view of the criminal case fastened against the petitioner,

the bond executed by the petitioner was cancelled vide impugned

order dated 31.07.2023 by the first respondent and by exercising the

power under Section 122(1)(b) of Cr.P.C., the first respondent issued

warrant to detain the petitioner. Challenging the same, the present

revision has been filed.

3.The learned counsel for the petitioner further submitted that

the Executive Magistrate has no power to detain the petitioner for

breach of bond under Section 120 of Cr.P.C. and the learned Judicial

Magistrate alone can pass orders after conducting enquiry by invoking

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the power under Section 446 of Cr.P.C. for forfeiture of bond. The

learned counsel further submitted that the issue arising in this

revision is no longer res integra and is covered by the decision of the

Division Bench of this Court reported in 2023 – 1 – L.W.(Crl.) 810

[P.Sathish @ Sathish Kumar Vs. State rep. by the Inspector of

Police – Law and Order and another]. Accordingly, he prayed for

allowing this revision.

4.The learned Government Advocate (Crl. Side) did not dispute

the fact submitted by the learned counsel for the petitioner, however

submitted that as against the order passed by the Division Bench of

this Court, SLP is pending before the Apex Court.

5.Heard the learned counsel appearing for the petitioner as well

as the learned Government Advocate (Crl. Side).

6.It is useful to extract hereunder the relevant portions of the

decision of the Division Bench of this Court reported in 2023 – 1 –

L.W.(Crl.) 810 [P.Sathish @ Sathish Kumar Vs. State rep. by the

Inspector of Police – Law and Order and another]:

“32. The question then is whether the

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Executive Magistrate can proceed to authorize detention under Section 122(1)(b) if it is proved that a bond executed under Section 107 to 110, pursuant to an order under Section 117, has been breached. Section 122(1)(b) reads as follows:

“(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.” We have already concluded that the breach of a bond under Section 122(1)(b) would result in initiation of proceedings under Section 446 Cr.P.C., for forfeiture and recovery of the sum covered by the bond. Thus, only a bond executed under Section 107 pursuant to an order under Section 117 comes within the net of this provision. Section 122(1)(b) does not use the expression Executive Magistrate, but merely states “Magistrate”. Section 3(1) (a) of the Code reads as follows:

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“3. Construction of references.—(1) In this Code,—

(a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,—

(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;

(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;……………..” Therefore, where the Code merely uses the expression Magistrate it must be read, unless the context otherwise requires, as referring to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be. The question is whether the meaning of the expression “Magistrate” in the context of Section 122(1)(b) warrants a departure from the aforesaid construction.

33.It is no doubt true that Section 122(1)(b) read literally requires proof of breach to be proved before “such Magistrate or his successor-in-office” before whom the bond was executed under Section 117. The larger question, however, is whether an Executive Magistrate is invested with powers under the Code to inflict punishment. Our attention was invited by the Amicus Curiae to Section 167(2-A) of the Code which authorizes

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the detention of an accused by an Executive Magistrate. It was pointed out that to exercise powers of detention Section 167 (2-A) requires that an Executive Magistrate must be specifically invested with the powers of a Judicial or Metropolitan Magistrate. This can be done by the High Court on a request made by the State Government under Sections 13 or 18 of the Code. This itself would show that the detention of a person, which is an interference with his personal liberty, cannot be done by an Executive Magistrate without being specially invested with the powers of a Judicial Magistrate.

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:

(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

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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, 2016 SCC Online Mad 23460, 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 (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

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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 (1982) 1 SCC 71, an Executive 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.”

7.Considering the facts and circumstances of the case and in

view of the decision rendered by the Division Bench of this Court

reported in 2023 – 1 – L.W.(Crl.) 810 [P.Sathish @ Sathish

Kumar Vs. State rep. by the Inspector of Police – Law and

Order and another], particularly, paragraph no.88(c), the Executive

Magistrate has no power to detain the petitioner for breach of bond

and the learned Judicial Magistrate alone can pass orders after

conducting enquiry by invoking the power under Section 446 of

Cr.P.C. for forfeiture of bond. Hence, the impugned order is liable to

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be set aside and accordingly, the same is set aside.

8.This revision is allowed. Consequently, the connected