Partly allowed

Vijayakumar v. Executive Magistrate

Madras HC27 Jan 2022CRL MP/192/2022

Case brief

AI extract

What is this about?

Single Judge suspended sentence of petitioner on conditions pending larger bench decision regarding validity of detention orders and applicability of Cr.P.C. Section 122(1)(b) to good behaviour bonds.

What did the court decide?

Petitioner released on bail with own bond of Rs. 15,000 and two sureties; ordered to appear daily at police station; sentence suspended pending larger bench decision.

Vijayakumar Vs Executive Magistrate — Criminal Trial and Appeal | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 27.01.2022

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CORAM

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THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

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Crl.M.P.No.192 of 2022

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Crl.R.C.No.26 of 2022

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Vijayakumar ... Petitioner

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Vs.

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1.The Executive Magistrate and Deputy Commissioner of Police, Wannarapet District.

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2.The Inspector of Police,

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H8, Thiruvotriyur Police Station, Chennai. ... Respondents

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PRAYER: The Criminal Miscellaneous Petition is filed under Section 482 of the Code of Criminal Procedure, pleased to Suspend the Sentence imposed against the petitioner in M.P.No.77 of 2021 in LIR.No.326/Sec. Pro/DCP WPT/2021 dated 30.12.2021 by the Executive Magistrate and Deputy Commissioner of Police, Wannarapet District in H8 Thiruvotriyur P.S. SI No.86/2021 U/s 110 of Cr.P.C.

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For Petitioner : Mr.V.Parthiban

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For Respondents : Mr.S.Sugendran Government Advocate (Crl.Side)

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ORDER

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(This case has been heard through video conferencing)

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This Criminal Miscellaneous Petition has been filed by the petitioner/accused, seeking suspension of sentence of imprisonment, imposed against the petitioner in M.P.No.77 of 2021 in LIR.No.326/Sec. Pro/DCP WPT/2021 dated 30.12.2021 by the by the Executive Magistrate and Deputy Commissioner of Police, Wannarapet.

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Learned Counsel appearing for the petitioner would submit that the petitioner was summoned by the second respondent on 22.08.2021

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and without furnishing any material and without affording opportunity to the petitioner, he was compelled to furnish secutity for keeping good behaviour and accordingly, he had executed a bond under Section 110 Cr.P.C on 23.08.2021, whereas on 27.11.2021, he was falsely implicated by the second respondent in a case registered in Crime No.3199 of 2021, for the offence under Section 8 (C) r/w 20(b) (ii) (B) NDPS Act and when he was in judicial custody, a PT warrant was issued by the first respondent on 24.12.2021 and he was produced before the first respondent on 28.12.2021 and without affording sufficient opportunity to defend his case, he has been clamped with the detention order dated 30.12.2021, directing him to be in prison for a period of 236 days.

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He would further submit that this Court, earlier, in the case of P.Sathish Vs State and another, in Crl.R.C.(MD) No.302 of 2017 dated 09.08.2017 had issued certain directions to be followed by the Executive Magistrate before clamping detention orders. Further, in the judgment rendered in Devi Vs State, in Crl.R.C.No.78 of 2020, by order dated 25.09.2020, another Hon'ble Judge of this Court had doubted the power of the Deputy Commissioner of Police in passing detention order and while deferring with the view taken in P.Sathish Vs State and another, cited supra had referred the issues to the Hon'ble Chief Justice for constituting a larger bench and thereby, it would take some time to decide the issue. He would therefore, pray for suspension of sentence pending revision.

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Mr.S.Sugendran, the learned Government Advocate (Crl. Side), would submit that the petitioner had furnished a bond to be of good behaviour on 23.08.2021. On violation of the bond, he had involved in the offence on 27.11.2021. The first respondent, after affording sufficient opportunity, finding violation of the bond, passed the order of detention.

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Heard the learned counsel and perused the materials on record.

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This Court in “Devi Versus The Executive Magistrate-cum-Deputy Commissioner of Police, St.Thomas Mount District” in Crl.R.C.No.78 of 2020, by order dated 25.09.2020, had deferred with the findings given in Crl.R.C.No.982 of 2018, dated 24.11.2018 and held in paragraph No.20 as follows:-

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“42 Since this Court respectfully differs from V. Parthiban, J. on the issue of applicability of Section 122(1)(b) Cr.P.C. to a good behaviour bond under Section 110(e), the Registry is directed to place this matter before the Hon’ble Chief Justice for appropriate orders.

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43 Further, as this Court is not in agreement with the view propounded by another learned single judge of this Court in Balamurugan (supra), the following question is framed with a

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direction to the Registry to place the same before the Hon’ble Chief Justice with a request to constitute a Bench of appropriate strength for an authoritative pronouncement:

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Whether G.O.Ms.No.659, Home (Cts. VIA) Department dated 12.09.2013 and G.O. Ms.No.181, Home (Cts.VIA) Department dated 20.02.2014 violate the scheme of separation of powers and are ultra vires the proviso to Section 6 of the Tamil Nadu District Police Act, 1868 (Central Act XXIV of 1868)?”

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Now, both the learned Single Judges have referred the issues to be placed before the Hon'ble The Chief Justice for constituting a larger bench with regard to applicability of Section 122(1)(b) Cr.P.C., the power exercised by police officers can it be said to be power exercised as Executive Magistrate under the Code of Criminal Procedure and for other connected issues.

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In view of the above and it is learnt that it would take some time for the above issues to be decided, this Court is inclined to suspend the sentence imposed on the petitioner with the following conditions:-

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(a) Accordingly, the petitioner is ordered to be released on bail on condition to execute his own bond for a sum of Rs.15,000/- (Rupees Fifteen Thousand only) before the Superintendent, Central Prison, Puzhal, Chennai in which the Petitioner has been confined and thereafter, on his release, the petitioner shall execute two sureties, each for a like sum to the satisfaction of the learned Judicial Magistrate, Thiruvotriur, within 15 days from the date of commencement of the Court's normal functioning, failing which the bail granted by this Court shall stand dismissed automatically and on further conditions that:

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(b) the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the learned Magistrate may obtain a copy of their Aadhar Card or Bank Pass Book to ensure their identity;

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(c)The petitioner shall appear before the second respondent Police everyday at 5.30 p.m., until further orders.

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Hence, the Criminal Miscellaneous Petition is ordered to the extent of granting Suspension of Sentence. The Superintendent, Central Prison, Puzhal, Chennai is directed to set the petitioner at liberty, if his further detention is no longer required in connection with any other case or proceedings.

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