Bhukya Devandar vs The State Of Telangana And Another
2022 Latest Caselaw 2006 Tel

      THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                   WRIT PETITION No.18169 of 2022

ORDER:

This writ petition is filed questioning the warrant order issued in

RC.No.A/161/2022, dated 21.03.2022 against the petitioner's wife in a bind

over case under Section 110 Cr.P.C. as illegal, arbitrary, contrary to law and

violation of Article 21 of the Constitution of India and set aside the same.

2. Mr.M.Ratan Singh, learned counsel for the petitioner, submitted that

the Executive Magistrate has passed warrant of commitment to prison on

breach of bond for good bahaviour, as the petitioner has failed to pay the

penalty of Rs.2,00,000/- for breaching of bond of keeping good behavior.

The Magistrate has passed the order of keeping custody of the petitioner's

wife together with the warrant and keep her safely in the jail or she is

already in prison, be detained therein, for the said period from 28.01.2022 to

27.07.2022. It is submitted that under Section 110 Cr.P.C., an order is

passed. and according to the Magistrate, the petitioner's case falls under

Section 110(g) of Cr.P.C., i.e., the Customs Act, 1962, where the petitioner

habitually commits, or attempts to commit, or abets the commission of the

Customs Act and admittedly in this case, the petitioner is alleged to be a

habitual offender and indulged in transporting of black jaggery and alum. It LK, J W.P.No.18169 of 2022

is submitted that Section 110(g) has no application to the facts of the case.

Further, it is submitted that under Section 122 and Section 110, does not

contemplate imposing the punishment or sending the accused to the

imprisonment. Further, without application of mind, without conducting any

proper enquiry, the impugned order has been passed.

3. On the other hand, Mr.S.Rama Mohan Rao, learned Assistant

Government Pleader for Home submits that the order is passed under

Section 110 Cr.P.C. As per Section 122 of Cr.P.C, which deals with

imprisonment in default of security and as far as 122(8) of Cr.P.C.,

imprisonment for failure to give security for good behavior shall, where the

proceedings have been taken under Section 108, be simple, and where the

proceedings have been taken under Section 109 or Section 110, be rigorous

or simple as the Court or Magistrate in each case directs. He also relied on

the judgment passed by the Hon'ble Apex Court in Devadassan v. The

Second Class Executive Magistrate, Ramanthapuram and others

(arising out of Crl.Appeal No.388 of 2022) and submitted that the writ

petition itself is not maintainable when an order is passed under Section 110

Cr.P.C. The remedy available to the petitioner is to file a criminal revision.

It is also submitted that even in the order passed by the Hon'ble Apex Court,

the matter is carried to the Supreme Court in an order passed in a revision LK, J W.P.No.18169 of 2022

case, it is categorically observed Chapter-VIII of Cr.P.C. confer powers to

the Executive Magistrate to take bond for maintaining security and for

keeping the peace and good behavior by the citizens and when an order is

passed under Section 109, 110, 111 and 117 Cr.P.C., recourse is specified

under Section 122 Cr.P.C. He submitted that as per Section 122 Cr.P.C., if

the petitioner fails to comply with the order passed under Section 110

Cr.P.C., the Magistrate is empowered to pass such an order.

4. In response to the same, learned counsel for the petitioner submitted

that the petitioner can maintain a writ of mandamus and relied on the

judgment of High Court of Punjab and Haryana at Chandigarh in Anoop

Singh @ Mahna v. State of Punjab through Secretary, Department of

Home Affairs and Justice, Government of Punjab, Main Secretariat,

Chandigarh and others (arising out of C.W.P.No.7832 of 2015) and

submitted that in similar circumstances, the Hon'ble Court has entertained

the writ petition and has directed the Superintendent of Central Jail to

release the petitioner. It is submitted that when there is violation of

fundamental right, this Court, under Article 226 of the Constitution of India,

can interfere with the said order.

5. It is an undisputed fact that when an order is passed by the Magistrate

under Section 110 Cr.P.C., a criminal revision lies and Hon'ble Apex Court LK, J W.P.No.18169 of 2022

time and again has cautioned that the jurisdiction under Article 226 of the

Constitution of India cannot be used as a substitute for enforcement of rights

and obligations, which could be enforced more efficaciously through

ordinary process of Courts. When the petitioner has an effective and

alternative remedy by filing a revision, particularly when the petitioner is in

jail, this Court is not inclined to entertain this writ petition.

6. Accordingly, this Writ Petition is disposed of giving liberty to the

petitioner to avail appropriate remedy, as per law.

Miscellaneous applications, pending if any, shall stand closed.

__________________________ LALITHA KANNEGANTI, J Date: 19.04.2022

Note:

Issue C.C. by tomorrow.

(b/o) mar