Allowed

Elango v. The Second Class Executive Magistrate and Thasildar

Madras HC29 Jul 2024CRL RC(MD)/718/2024

Case brief

AI extract

What is this about?

The petitioner challenged an order of detention by an Executive Magistrate for violating conditions of a bond under Section 110 Cr.P.C. Relying on precedent holding that such violations are dealt with under Section 446 Cr.P.C. before a Judicial Magistrate, the High Court allowed the criminal revision and quashed the impugned order.

What did the court decide?

Quashed the order of detention passed by the Executive Magistrate under Section 122(1)(b) Cr.P.C.

Elango Vs The Second Class Executive Magistrate and… — Criminal Trial and Appeal | Madras HC (2024)

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Crl.R.C.(MD)No.718 of 2024 and Crl.M.P.(MD)No.7461 of 2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated : 29.07.2024

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CORAM

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THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

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Crl.R.C.(MD)No.718 of 2024 and Crl.M.P.(MD)No.7461 of 2024

Elango

... Petitioner

Vs.

1.The Second Class Executive Magistrate & Thasildar, Ramanathapuram, M.C.No.04/3260/2024, dated 02.07.2024.

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2.The Inspector of Police, Mandapam Police Station, Ramanathapuram District.

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3.The Superintendent of Prison, District Prison, Ramanathapuram.

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... Respondents

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PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401 of Cr.P.C., to call for the records pertaining of the proceedings in M.C.No. 04/3260/2024 dated 02.07.2024 on the file of the 1^st respondent and set aside the same.

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https://www.mhc.tn.gov.in/judis

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Crl.R.C.(MD)No.718 of 2024 and Crl.M.P.(MD)No.7461 of 2024

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For Petitioner : Mr.S.Sathya Chidambaram

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For Respondents : Mr.B.Thanga Aravindh Government Pleader(Crl.side) * * * * *

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ORDER

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This Criminal Revision is filed to quash the proceedings in M.C.No. 04/3260/2024 dated 02.07.2024 on the file of the 1^st respondent.

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2.The impugned order passed by the first respondent wherein, the petitioner was arrested on 13.06.2024 and detained under Section 122(1)(b) of Cr.P.C for the violation of bond condition executed under Section 110(e) of Cr.P.C dated 18.03.2024, 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.

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3.The learned counsel appearing for the petitioner would submit the first respondent has no jurisdiction to pass the impugned order under Section 122 (1) (d) 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 for quashment of impugned order.

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https://www.mhc.tn.gov.in/judis

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Crl.R.C.(MD)No.718 of 2024 and Crl.M.P.(MD)No.7461 of 2024

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4.The learned Government Advocate (Crl. Side) submitted that against the

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above said order they are going to file SLP before the Hon'ble Supreme Court.

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5.This Court considered the rival submission made by both parties.

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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

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P.Sathish @ Sathish Kumar Vs. State reported in 2023 (1) MWN (Crl.) 499 negatively in the following terms:-

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“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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(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.

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(b) Ex-consequenti, the decision in Balamurugan v. State, MANU/TN/2058/2016, will stand overruled.

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(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,

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Crl.R.C.(MD)No.718 of 2024 and Crl.M.P.(MD)No.7461 of 2024

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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.

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(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;

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(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 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.”

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7.In view of the above ratio, this Court is inclined to quash the impugned order passed by the first respondent in M.C.No.04/3260/2024 dated 02.07.2024 and accordingly, this Criminal Revision Case stands allowed. Consequently, connected miscellaneous petition is also closed.

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29.07.2024

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NCC : Yes/No Index : Yes/No Internet: Yes/No tta

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Note : Issue order copy on 29.07.2024

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Crl.R.C.(MD)No.718 of 2024 and Crl.M.P.(MD)No.7461 of 2024