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Balamurugan Vs. State rep. by The Inspector of Police and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberCrl.R.C.(MD)No. 535 of 2016 & Crl.M.P. (MD) Nos. 6772 & 6773 of 2016
Judge
AppellantBalamurugan
RespondentState rep. by The Inspector of Police and Another
Excerpt:
constitution of india - article 21 - criminal procedure code - section 20, section 20 (1), section 20(1)(2), section 20 (5), section 22, section 101, section 107, section 108, section 109, section 110, section 110 (e) and (f), section 111, section 117, section 122, section 122 (1) (b), sections 294(b), 352, section 397 r/w 401 and 506(i) - f.i.r. has been registered as against detenue by the sub-inspector of police, on the ground that he exhibited disorderly and unruly behavior - second respondent passed final order, directing him to execute security bond for keeping good behaviour for one year - accordingly, he has executed the security bond with sureties - subsequently, based on the complaint of one third party, a case has been registered as against the petitioner by the 1st respondent.....(prayer:criminal revision petition filed under section 397 r/w 401 of cr.p.c., to call for the records in m.c.no.90/pro/dc.lando/tin-c/2016 and the order, dated 14.06.2016 on the file of the executive magistrate/deputy commissioner of police (law and order), tirunelveli city and revise the same.) 1. petitioner, a detenue, who has been confined in central prison, palayamkottai pursuant to the order dated 14.06.2016 passed by the second respondent/executive magistrate/deputy commissioner of police (law and order), tirunelveli city, directed this revision, challenging the legality and propriety of the said order of detention. 2. petitioner belongs to palayamkkottai in tirunelveli district. on 05.03.2016, in crime no.288 of 2016, under section 110 (e) and (f) cr.p.c, an f.i.r. has been.....
Judgment:

(Prayer:Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C., to call for the records in M.C.No.90/Pro/DC.LandO/Tin-C/2016 and the order, dated 14.06.2016 on the file of the Executive Magistrate/Deputy Commissioner of Police (Law and Order), Tirunelveli City and revise the same.)

1. Petitioner, a detenue, who has been confined in Central Prison, Palayamkottai pursuant to the order dated 14.06.2016 passed by the second respondent/Executive Magistrate/Deputy Commissioner of Police (Law and Order), Tirunelveli City, directed this revision, challenging the legality and propriety of the said order of detention.

2. Petitioner belongs to Palayamkkottai in Tirunelveli District. On 05.03.2016, in Crime No.288 of 2016, under Section 110 (e) and (f) Cr.P.C, an F.I.R. has been registered as against him by the Sub-Inspector of Police, Palayamkkottai Police Station, on the ground that he exhibited disorderly and unruly behaviour.

3. On 08.03.2016, the 2nd respondent issued him show cause notice under Section 110 (e) and (f) Cr.P.C. as to why he shall not be asked to execute a security bond for Rs.30,000/- to keep good behaviour for one year enclosing a preliminary order containing details as required under Section 111 Cr.P.C. On 09.03.2016, the second respondent passed final order, under Section 117 Cr.P.C., directing him to execute security bond for Rs.30,000/- for keeping good behaviour for one year. Accordingly, he has executed the security bond with sureties.

4. Subsequently, based on the complaint of one Anandakumar, a case in Crime No.673 of 2016 under Sections 294(b), 352 and 506(i) IPC has been registered as against the petitioner by the 1st respondent. He was remanded to judicial custody.

5. On 13.06.2016, the 1st respondent sought for taking action as against the petitioner under Section 122 (1) (b) Cr.P.C to cancel his security bond executed and detain him in jail for the bond period. It was also recommended by the Assistant Commissioner of Police (Law and Order), Palayamkkottai Sub-Division. The 2nd respondent sent a show cause notice to the petitioner on 13.06.2016 through the Superintendent, Central Prison, Palayamkottai and he was also asked to produce the petitioner before him on 14.6.2016.

6. On 14.06.2016, the 2nd respondent passed the impugned order cancelling the security bond executed by the petitioner and directed his detention for one year in the Central Prison, Palayamkkottai. Accordingly, he was detained. This order is being challenged before us.

7. According to the learned counsel for the petitioner, under Section 110 Cr.P.C., no FIR can be registered. Before asking the petitioner to execute the security bond under Section 117 Cr.P.C. no preliminary order was passed and no enquiry was conducted. Petitioner was produced before the 2nd respondent on 08.06.2016 and mechanically, on 09.06.2016, under section 117 Cr.P.C., the petitioner was asked to execute the security bond for one year to keep good behaviour.

8. The learned counsel for the petitioner further contended that as per Section 20 (5) CrP.C., a Commissioner of Police alone can be given the power of Executive Magistrate. However, in the instant case, a Deputy Commissioner of Police has been given such a power. Therefore, the second respondent has no jurisdiction to pass orders under Section 111 Cr.P.C., and also order of detention under Section 122(1)(b) of Cr.P.C.

9. The learned counsel for the petitioner further contended that under Section 20 (5) Cr.P.C., Government have no power to sub-delegate its power to a Deputy Commissioner of Police.

10. The learned counsel for the petitioner further contended that the detention order passed under Section 122(1)(b) of Cr.P.C on 14.06.2016 cancelling the security bond dated 9.6.2016 and detaining the petitioner is devoid of merits.

11. The learned counsel for the petitioner also contended that cases filed as against the petitioner even prior to the passing of the order under Section 111 of Cr.P.C on 09.06.2016, also have been taken into account in passing the detention order under section 122(1) (b) Cr.P.C. This is against the provisions of Section 122(1)(b) Cr.P.C.

12. The learned counsel for the petitioner further contended that before passing the said order of detention petitioner was not heard. He was not given any opportunity to file his counter or produce his materials. The second respondent has mechanically passed the detention order.

13. The learned counsel for the petitioner further contended that without expressing his subjective satisfaction whether the petitioner had breached the security bond the second respondent has simply accepted the report of the first respondent and passed the impugned order of detention.

14. In this connection, the learned counsel for the petitioner cited the following unreported decisions of this Court:

(1) Pandi @ Suriyapandi @ Sarayapandi Vs. The executive Magistrate/Assistant Collector, Trichy city and others [crl.o.p(md)no.13878 of 2015 etc, dated 29.7.2015].

(2) Murali @ Ponnuchamy Vs. The Sub-divisional Executive Magistrate, Sivakasi and another [Crl.r.c.(md)no.161 of 2016, dated 09.06.2016].

15. Prosecution filed counter.

16. The learned Public Prosecutor contended that Section 20(5) Cr.P.C., no doubt speaks about making a Commissioner of Police an Executive Magistrate, there is distinction between Section 20 (5) and 20 (1) Cr.P.C. Under Section 20 (5) Cr.P.C., the State Government has the power to confer the power of an Executive Magistrate on a Commissioner of Police. However, under Section 20 (1) Cr.P.C., the State Government has got the power to appoint as many persons as Executive Magistrates. It includes appointment of any Officer, may be Revenue or Police. Section 20 (5) Cr.P.C. deals with conferment of power of an Executive Magistrate on a Commissioner of Police. There is difference between 'appointment' and 'conferment of power'. Both cannot be confused and misunderstood.

17. The learned Public Prosecutor further contended that in exercise of its said power under Section 20 (1) Cr.P.C., the Government have passed G.O.Ms.No.181 Home (Cts VIA) Department dated 20.02.2014, appointing Deputy Commissioners of Police (Law and Order) in Certain Cities such as Madurai, Coimbatore, Tiruchirappalli, Tirunelveli, Salem, Tirupur as Executive Magistrates to exercise powers under Sections 107 to 110 Cr.P.C and also defined their local jurisdiction under Section 22(1) of Cr.P.C. In exercise of his such power, the 2nd respondent, namely, the Deputy Commissioner of Police (Law and Order), Tirunelveli has passed the impugned order of detention against the petitioner. It is within his jurisdiction.

18. In this connection, the learned Public Prosecutor cited A.N.Roy, Commissioner of Police Vs. Suresh Sham Singh [(2006) 5 SCC 745] and Pushpa Ram Thapa Vs. State of Maharashtra and Others [CDJ 2011 BHC 1730].

19. The learned Public Prosecutor also contended that after giving opportunity to the petitioner and considering the materials on record the order under Section 117 Cr.P.C was passed and the petitioner also accepted the same, received a copy of it and also executed the security bond. Thus, it cannot be faulted. Above all, in this revision, it is not the impugned order. So far the petitioner has not initiated any legal proceedings questioning the said order, dated 09.06.2016, directing him to execute the security bond to keep good behaviour for one year. Now, in this revision, he cannot question it.

20. The learned Public Prosecutor also contended that the 2nd respondent has not passed the impugned order of detention mechanically. He has perused the report of the 1st respondent, went through the materials produced and after satisfying himself, he has passed the order of detention under Section 122(1)(b) Cr.P.C.

21. I have anxiously considered the rival submissions, perused the impugned order, grounds of revision, counter filed by the prosecution and the entire materials on record and the decisions cited by both sides.

22. Now, the question before us is whether in the facts and circumstances, the impugned order of detention, dated 14.06.2016 passed by the 2nd respondent/Executive Magistrate/Deputy Commissioner of Police (Law and Order), Tirunelveli City, suffers from any legality, propriety, regularity.

23. In the administration of Criminal Justice mainly two types of Magistrates are devised in the Code of Criminal Procedure, 1973. They are Judicial Magistrates (in Metropolitan Cities, it is Metropolitan Magistrates) and Executive Magistrates.

24. Executive Magistrates are mentioned in Section 20 of Cr.P.C. It runs as under:

20. Executive Magistrates

(1) In every district and in every metropolitan area the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. (emphasis supplied by me)

(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force as may be directed by the State Government

(3) Whenever, in consequence of the office of a District Magistrate becoming Vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate

(4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-divisional Magistrate

(5) Nothing in this section shall preclude the State Government from conferring under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area.

(emphasis supplied by me)

25. Section 22 of the Code defines the local jurisdiction of the Executive Magistrates. It runs as under:

22. Local Jurisdiction of Executive Magistrates

(1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.

26. The police force in a Metropolitan City, area is headed by a Commissioner of Police. He is a Superior Police Officer. Joint Commissioner, Deputy Commissioner, Assistant Commissioner etc. are his subordinates. A Police Officer in the rank of a Superintendent of Police is being appointed as Deputy Commissioner of Police. He is only a deputy to the Commissioner of Police. He is not equal to a Commissioner of Police.

27. Government have passed G.O. appointing Deputy Commissioners (L and O) in certain Metropolitan areas as Executive Magistrates. The G.O. reads as under:

ABSTRACT

Police Appointment of jurisdictional Deputy Commissioners of Police cities other than Chennai City as Executive Magistrate to exercise power under Section 107 to 110 of Cr.P.C. - Notification Orders Issued.

Home (Cts VIA) Department

G.O.(Ms) No.181 Dated 20.02.2014

Read:

1. G.O.(Ms) No.736, Home, Dated 28.03.1974.

2. G.O.(Ms) No.659, Home (Cts VIA) Department, Dated 12.09.2013.

Read Also:

3. From the Director-General of Police, Letter R.C.No.226463/AandP(2)/2013, Dated 30.12.2013.

****

ORDER:

The Hon'ble Chief Minister among others has made the following announcement at the Conference of Collectors and Police Officers held on 13.12.2013:-

Deputy Commissioners of Police in all cities will be given magisterial powers under 107, 108, 110 Cr.P.C. as in the case of Chennai City Police.

2. In pursuance of the above announcement, the Director General of Police has sent proposals to Government and requested the Government to appoint the following 6 Jurisdictional Deputy Commissioners of Police in the Cities other than Chennai as Executive Magistrates to exercise powers under Section 107, 108, 109 and110 of Code of Criminal Procedure in exercise of the powers conferred by sub-section (1) of Section 20 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).

1. Deputy Commissioner of Police, Law and Order, Madurai City.

2. Deputy Commissioner of Police, Law and Order, Coimbatore City.

3. Deputy Commissioner of Police, Law and Order, Tiruchirappalli City.

4. Deputy Commissioner of Police, Law and Order, Tirunelveli City.

5. Deputy Commissioner of Police, Law and Order, Salem City.

6. Deputy Commissioner of Police, Law and Order, Tiruppur City.

3. The Government have carefully examined the proposal of the Director General of Police and decided to accept it. The Government accordingly appoint the following 6 Jurisdictional Deputy Commissioners of Police in the respective cities as Executive Magistrates to exercise powers under sections 107 to 110 of Code of Criminal Procedure.

1. Deputy Commissioner of Police, Law and Order, Madurai City.

2. Deputy Commissioner of Police, Law and Order, Coimbatore City.

3. Deputy Commissioner of Police, Law and Order, Tiruchirappalli City.

4. Deputy Commissioner of Police, Law and Order, Tirunelveli City.

5. Deputy Commissioner of Police, Law and Order, Salem City.

6. Deputy Commissioner of Police, Law and Order, Tiruppur City.

4. The following Notification will be published in an ordinary issue of the Tamil Nadu Government Gazette, dated Twentieth February, 2014:-

NOTIFICATION

In exercise of the powers conferred by sub-section (1) of section 20 read with sub-section (1) of section 22 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Tamil Nadu hereby appoints the officers specified below to be Executive Magistrates in the respective Police District so as to exercise the powers conferred under section 107 to 110 of the said Code:-

1. Deputy Commissioner of Police, Law and Order, Madurai City.

2. Deputy Commissioner of Police, Law and Order, Coimbatore City.

3. Deputy Commissioner of Police, Law and Order, Tiruchirappalli City.

4. Deputy Commissioner of Police, Law and Order, Tirunelveli City.

5. Deputy Commissioner of Police, Law and Order, Salem City.

6. Deputy Commissioner of Police, Law and Order, Tiruppur City.

28. The Executive Magistrates are different from Judicial Magistrates. Judicial Magistrates exercise purely judicial functions/power. They are part of judiciary. The Executive Magistrates performs executive functions. They are part of Executive. However, in the capacity of Executive Magistrates, they conduct judicial enquiries and at times they also act as quasi-judicial officers. Under certain circumstances, they were given power even to deal with personal liberty of persons. They are intended as a preventive measure. The object is to maintain peace and tranquility in the society. They are given power to ask certain types of criminals, habitual offenders, law-breakers, unruly and undesirable elements to execute security bond under Section 117 Cr.P.C., to keep good behaviour for a certain period. When they breach the said bond they may be detained in jail under section 122(1) (b) Cr.P.C.

29. In a detention order passed under Act No.14 of 1982 (GOONDAS ACT) or under National Security Act (NSA), COFEPOSA, Essential Commodities Act and N.D.P.S. Act, no enquiry much less a judicial enquiry is necessary before passing the detention order. However, in an order passed under Section 111, 122(1)(b) Cr.P.C., they were preceded by enquiry in exercise of their Magisterial power.

30. The Executive Magistrates performs quasi-judicial functions. Under Sections 107 to 110 Cr.P.C. they were given power to take preventive measures to maintain peace and tranquility. It is a preventive action. It will not be based on any conviction recorded by a Court. It is based on the subjective satisfaction of the Executive Magistrate. The Executive Magistrate has to apply his mind and after satisfying himself only he can pass the order of detention under section 122(1) (b) Cr.P.C. He cannot pass such orders mechanically.

31. Under Section 20(5) Cr.P.C., the Government can confer the power of an Executive Magistrate upon a Commissioner of Police. It is conferment of power, while Section 20(1) Cr.P.C. deals with appointment of a person as Executive Magistrate. 'Appointment' and 'Conferment' are different.

32. In Suresh Sham Singh (supra) under a particular State enactment, the Commissioner of Police, Bombay was appointed as Executive Magistrate under Section 20(1)(2) Cr.P.C. When it was challenged, the Bombay High Court held that Section 20(1) Cr.P.C. does not include the power to appoint a Commissioner of Police as Executive Magistrate. However, the Hon'ble Supreme Court reversed this decision.

33. In this connection it is relevant to note the following observations of the Hon'ble Supreme Court made in Suresh Sham Singh (supra):

20. The High Court after expressing its views in paragraphs 11 and 17 as quoted above came to the following findings:

(i) The District Magistrate or the Additional District Magistrate can be appointed out of the Executive Magistrate so appointed under Section 20(1) of the Code.

(ii) The Additional District Magistrate can exercise the powers of the District Magistrate to the extent directed by the State Government.

(iii) Unless a person is appointed as an Executive Magistrate, he can neither be appointed as a District Magistrate nor an Additional District Magistrate.

(iv) In relation to a metropolitan area the powers of an Executive Magistrate can be conferred upon the Commissioner of Police.

(v) The State Government's power to appoint any person as an Executive Magistrate in terms of the provisions of law under sub- section (1) of Section 20 of the Code does not include the power to appoint the Commissioner of Police as an Executive Magistrate.

(vi) As far as the Commissioner of Police is concerned, he can only be conferred with the powers of the Executive Magistrate in terms of sub-section (5) of Section 20 of the Code but is not entitled to be appointed even as an Executive Magistrate under sub-section (1) of Section 20 of the Code.

(vii) The District Magistrate, Additional District Magistrate and the Executive Magistrate are three different offices.

21. We have already noticed the provisions of sub- section (1) and (2) of Section 20 of the Code. Sub-section (1) deals with the power of the State Government to appoint Executive Magistrates as many persons as it thinks fit in every district and in every metropolitan area. Sub-section (2) of Section 20 deals with the power of the State Government to appoint any Executive Magistrate to be an Additional District Magistrate and such Magistrate shall have the powers of a District Magistrate under the Code or under any other law for the time being in force as may be directed by the State Government. We agree with the view of the High Court that unless a person is appointed as an Executive Magistrate he cannot be appointed as either an Additional District Magistrate or the District Magistrate. To this extent, the High Court's view is correct. But the views of the High Court contained in sub clause V and VI of the findings, in our view, are not correct. 22.Under sub-section (1) of Section 20 the Government has got the power to appoint as many persons as it thinks fit to be Executive Magistrates in every district and in every metropolitan area and shall appoint one of them to be the District Magistrate. The words, "as many persons" employed in sub-section (1) are adequately elastic to include the Commissioner of Police. In other words, the State Government is not precluded from appointing the Commissioner of Police in metropolitan area as an Executive Magistrate. We have already noted that Brihan Bombay is a metropolitan area. Once the Commissioner of Police is appointed as an Executive Magistrate in Brihan Bombay, he can be appointed as an Additional District Magistrate, who shall have the powers of the District Magistrate for the purposes of Sections 18 and 20 of the Act. In our opinion, this would be the correct reading of the statute. This view of ours is further clarified by sub-section (5) of Section 20 when it is stated that nothing in this section shall preclude the State Government from conferring under any law for the time being in force, on Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area.

23. It is now well settled principle of law that the Court cannot enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous. Narrow and pedantic construction may not always be given effect to. Courts should avoid a construction, which would reduce the legislation to futility. It is also well settled that every statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning, the court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the alternative constructions.

24. In Anwar Hasan Khan v. Mohd. Shafi and Ors. (2001) 8 SCC 540 this Court held: (SCC p.543 para 8)

"8.....It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved...." 25.Reading sub-sections (1), (2) and (5) of Section 20 in conjunction, we are of the view, that the State has power to appoint the Commissioner of Police of Brihan Bombay as an Executive Magistrate and further appoint him as an Additional District Magistrate, who shall have the powers of District Magistrate for the purposes of Sections 18 and 20 of the Act. The State Government shall now appoint the Commissioner of Police as an Executive Magistrate in Brihan Bombay and shall further appoint him as an Additional District Magistrate, who shall have the powers of District Magistrate for the purposes of Sections 18 and 20 of the Act.

34. Subsequently, in Pushpa Ram Thapa (supra), when similar issue arose, the Bombay High Court referring to Suresh Sham Singh (supra) upheld the appointment of a Police Officer as an Executive Magistrate under Section 20(1)(2) Cr.P.C.

35. In this connection, it is relevant to note the following observations made by the Bombay High Court in the said decision:

3. The counsel for the petitioner, however, has placed reliance on the decision of our High Court in the case of Suresh Sham Singh and Ors. v. A.N.Roy, Commissioner of Police and Ors., reported in 2005 (2) Bom.C.R.(Cri.)513. In the first place, this judgment has been overruled by the Apex Court in the case of A.N.Roy, Commissioner of Police, and Anr. v. Suresh Sham Singh, reported in (2006) 5 SCC 745. In any case, the said judgment has not considered the question that arises for our consideration that even when an express Notification is issued by the State Government, in exercise of powers under Section 20(1) and (2) of the Code, read with Section 18 of the Act of 1956, can such Notification be overlooked? Thus understood, this decision is of no avail.

4............

5. Indeed, reliance was placed on sub-section (5) of Section 20 of the Code to contend that the Commissioner of Police could not have been appointed as District Magistrate but, at best, as Executive Magistrate in relation to a metropolitan area. This argument clearly overlooks that sub-section (5) of Section 20 of the Code is an enabling provision, and does not limit the sweep of sub-section (1), and in particular, sub-section (2) of Section 20 of the Code. Even for this reason, the first argument deserves to be rejected.

36. Thus reading Section 20 (1) and Section 20 (5) Cr.P.C. and also the decision in Suresh Sham Singh (supra), it is clear that under Section 20 (1) Cr.P.C., Police Officers other than a Commissioner of Police, such as a Deputy Commissioners of Police can also be appointed as Executive Magistrates.

37. In the circumstances, the argument as to Government delegating its power under Section 20 (5) Cr.P.C. to appoint a Deputy Commissioner of Police as Executive Magistrate will not arise at all.

38. On 09.03.2016, the petitioner was asked to execute a security bond for Rs.30,000/- to keep good behaviour for one year. He has participated in the enquiry. In the enquiry, he has accepted to execute the security bond. In fact he has also executed the security bond. A copy of the order was also served upon him. In such circumstances, now it cannot be said that it has been passed without giving him an opportunity. Further, in this revision it is not the impugned order. Above all, as stated already, the revision petitioner had accepted the order, consented to execute the security bond and also executed the security bond. Therefore, now he cannot be heard to say that the order passed on 09.03.2016 to execute the security bond is in violation of law.

39. When the security bond executed by him has been breached by the petitioner by his subsequent conduct/act, under Section 122(1)(b) Cr.P.C., the 2nd respondent can initiate proceedings to cancel the same and detain him in jail for a particular period.

40. In this connection, it is relevant to extract here under Section 122 Cr.P.C. It runs as under:

''122. Imprisonment in default of security.

(1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for Which such security is to be given commences, the shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period- he gives the security to the Court or Magistrate who made the order requiring it.

(b) If any person after having executed a bond 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. (emphasis supplied by me)

(2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be, before such Court.

(3) Such Court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit: Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years.

(4) If security has been required in the course of the same proceeding' from two or more persons in respect of any one of whom the proceedings are referred to the Sessions Judge under sub- section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of sub- sections (2) and (3) shall, in that event, apply to the case of such other person also, except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security.

(5) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub- section (2) or sub- section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings.

(6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the Court or Magistrate who made the order, and shall await the orders of such Court or Magistrate.

(7) Imprisonment for failure to give security for keeping the peace shall be simple.

(8) Imprisonment for failure to give security for good behaviour 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.''

41. Recently, in Murali @ Ponnuchamay Vs. The Sub Divisional Executive Magistrate and another [Crl.R.C.(MD) No.161 of 2016 dated 09.06.2016] as regards the nature of the power under Section 122 Cr.P.C. and the procedure to be followed, this Court has held as under:

''8. Under the Codeof Criminal Procedure, there are Judicial Magistrates and Executive Magistrates. In order to keep peace, tranquility and also to prevent persons from indulging in any criminal activities, disturbing the peace of others, powers to take certain preventive measures have been given to the Executive Magistrates.

9. Under Section 117 Cr.P.C., upon satisfaction, the Executive Magistrate may direct such persons to execute a bond, but upto 3 years and when they breach the conditions, he can pass orders to detain them under Section 122 (1)(b) Cr.P.C.

10. It is pertinent to note that such a detention is different from a detention authorised by a Court. Jailing a person by a Judicial Order is based on charges, evidence, trial and a detailed Judgment. However, in jailing a person, under Section 122(1)(b) Cr.P.C., by the Executive Magistrate, there will be no charge, no evidence and no trial. Without any trial, the liberty of a person can be taken away by the Executive Magistrates. So, it is draconian in nature. An affront to civil and personal liberty.

11. Under Article 21, Constitution of India, no one shall be deprived of his life and liberty, except by procedure established by law. Thus, Article 21 of the Constitution does not prevent the authorities to take away the liberty or life of a person. But, in doing so, they should follow prescribed procedures. The procedure must be fair, reasonable, not unjust, not arbitrary and not whimsical (See Menaka Gandhi vs. Union of India [1978 AIR 597]).

13. Now, in the case before us, the detention order has been passed by the first respondent under Section 122(1)(b) Cr.P.C. As per the said provision, the Executive Magistrate, before ordering a person to be jailed, he shall be satisfied that the person has breached the bond conditions, the Executive Magistrate must also record the grounds for such proof. That means he must apply his mind and pass orders. He cannot pass orders mechanically. But, he need not write an elaborate Judgment like us. His Orders must show atleast briefly the grounds upon which, he has satisfied that the person has breached the bond executed by him. Under Section 122 (1)(b) Cr.P.C., if the said satisfaction is not recorded, it will be presumed that the detention authority sending a person to jail is arbitrary, mechanical, not fair, unjust. The detention order must disclose the grounds of proof, otherwise, Court cannot see what has transpired in the mind of the Executive Magistrate in passing the detention order, more particularly, when these orders are revisable by the Sessions Judges.

17. As we have already stated, without a charge, without evidence and without trial, a person's liberty has been taken away and he has been jailed for 3 years under Section 122(1)(b) Cr.P.C. So, the Executive Magistrate must be very serious of this matter. In a casual manner, personal liberty of a person has been curtailed. 1st respondent is bound to follow the law. There cannot be compromise with law, more particularly, when it is concerned with the liberty of a person.

18. Now, in this case, the impugned order cannot stand the test of law. It is vitiated. Thus, our interference is called for.

42. In Pandi @ Suriyapandi @ Saraya Pandi (supra) before a learned Single Judge, correctness of a detention order passed under Section 122(1)(b) Cr.P.C. against a person for he having alleged to have breached the security bond executed by him under Section 117 Cr.P.C., was canvassed on the ground that the Executive Magistrate has passed the detention order mechanically and he did not referred to the materials and he did not give hearing to the detenue.

43. The learned Judge accepted the contentions and set aside the detention order observing as under:

The petitioners herein were proceeded with Section 101 of the Criminal Procedure Code. Thereafter, orders have been passed under Section 117 of the Criminal Procedure Code, requiring the petitioners to execute a bond with sureties. The said order has been passed on the ground that it was proved that such an action is required and necessary for keeping peace and maintaining good behaviour. Accordingly, the petitioners have executed the bonds with sureties. Thereafter, by the orders impugned passed under Section 122(1)(b) r/w 111 of the Criminal Procedure Code, the petitioners were directed to be kept under custody till 18.05.2018 and 27.04.2016 respectively for having violated the bonds executed by them. Challenging the same, the petitioners have come forward with these petitions.

2. The learned counsel for the petitioners submitted that Section 122 of the Criminal Procedure Code speaks only about imprisonment in default of security. Such imprisonment can only be imposed only when there is breach of the bond proved to the satisfaction of the said Magistrate. The Magistrate concerned is duty bound to records grounds of such proof. Thereafter, on satisfaction should proceed to arrest and detain the person concerned in prison. But such an exercise has not been done. A perusal of the orders under challenge would show that they have been passed merely based upon the reports of the Inspectors of Police, which indicate that one case has been registered against the petitioner in Crl.O.P.(MD) No.13878 of 2015 and two cases have been registered against the petitioner in Crl.O.P.(MD) No.13957 of 2015.

3. The learned counsel also submitted the principle of natural justice will have to be looked into or otherwise the said provision would hit Article 21 of the Constitution of India.

4. The learned Government Advocate (Criminal side) would submit that in as much as the petitioner in Crl.O.P.(MD) No.13878 of 2015 is concerned, he involved in one case and the petitioner in Crl.O.P.(MD) No.13957 of 2015 has involved in two cases. Therefore, the orders impugned do not warrant interference.

5. This Court finds considerable force in the submission of the learned counsel for the petitioners. Section 122 of the Code of Criminal Procedure makes it clear that it is mandatory on the part of the Magistrate concerned to be satisfied of the breach of bond by the person concerned. Such breach has to be proved by the police. Therefore, there is an element of quasi judicial function involved. Admittedly, the order to be passed has got its own consequences, in as much as it intends to take the liberty of the person concerned. Therefore, it goes without saying that an opportunity of being heard has to be afforded. When it is stated that a breach has to be proved, then necessarily the person against whom it is sought to be proved has to be heard. A satisfaction of the Magistrate has to be recorded in the order to be passed. Such satisfaction should be based upon the materials to be produced by the police officer concerned as well as the contra material, if any, that could be produced by the persons against whom the said provision is sought to be invoked. It is also for the reason, this proceedings is without prejudice to the other punishment that can be imposed against the accused persons.

6. A perusal of the impugned order would show the non-application of mind of the Executive Magistrate. Merely because certain cases have been registered against the petitioners, ipso facto, the same cannot be said to be sufficient ground leading to prove the breach of bond to the satisfaction of the Magistrate concerned that too without hearing the affected party.

44. Thus, a close reading of Section 122(1)(b) Cr.P.C. would clearly show that the Executive Magistrate, in the instant case, the Deputy Commissioner of Police (L and O) in his capacity of Executive Magistrate shall refer the materials produced, must give an opportunity to the petitioner and apply his judicial mind and arrive at his subjective satisfaction that the petitioner has breached the security bond executed by him to keep good behaviour. He must also record grounds of such proof.

45. In the instant case, on 09.06.2016, the revision petitioner had executed security bond for Rs.30,000/- under Section 117 Cr.P.C. to keep good behaviour for one year. He has also produced the sureties. Subsequently based on the complaint of one Anandhakumar that on 06.06.2016, the petitioner had abused him in filthy language and tried to assault him a case in Crime No.673/2016 under Sections 294(b), 352 and 506(i) I.P.C. has been registered by the Palayamkottai Police. He was arrested and remanded to judicial custody. In this connection, 1st respondent/Inspector of Police, Palayamkottai (L and O), who is the sponsoring authority petitioned the Executive Magistrate/2nd respondent seeking initiation of proceedings under Section 122 (1)(b) Cr.P.C. to cancel his security bond and detain him in prison. It was also recommended by the Assistant Commissioner of Police, Palayamkottai Sub-Division.

46. On 13.06.2016, the 2nd respondent has directed the Superintendent, Central Prison, Palayamkottai to cause the production of the petitioner before him on 14.06.2016 and also issued a show cause notice to the petitioner under Section 122(1)(b) Cr.P.C. through the Superintendent, Central Prison, Palayamkottai.

47. On the next day ie., on 14.06.2016, the second respondent passed the impugned order cancelling the security bond executed by the petitioner and detained him for one year in prison. The order is in vernacular language. Its English translation runs as under:

Executive Magistrate / Deputy Commissioner of Police, Law and Order, Tirunelveli City

Present : Thiru Pradip Kumar, IPS

M.C.No.90/2016, dated 08.03.2016

Order under section 122(1)(b) r/w 117 Cr.PC

Inspector of Police,

Law and Order,

Palayamkottai Police Station,

Tirunelveli City. : Appellant / Petitioner

Vs

Tr.Balamurugan @ Prabhu (40/16),

S/o.Chelladurai,

16-Kularchirai Nayanar Street,

Palayamkottai, Tirunelveli : Respondent / Counter petitioner

----

Action has been taken against the Respondent/counter-petitioner Tr.Balamurugan @ Prabhu, aged 40 years, s/o.Chelladurai, 16-Kularchirai Nayanar Street, Palayamkottai u/s 110, 117 r/w 113 Cr.PC by this court. In accordance with the aforesaid action, the Respondent/counter-petitioner Tr.Balamurugan @ Prabhu was issued show-cause notice on 08.03.2016, as to why he should not be bound over on a bond in Palayamkottai PS cr.No.288/2016 u/s 110 Cr.PC for maintaining good behaviour for one year and fixed a fine amount Rs.30,000/- if he violated the provision of bond, since this case comes under the jurisdiction of this court. Accordingly, the respondent Tr.Balamurugan has appeared before the Executive Magistrate/Deputy Commissioner of Police, Law and Order, Tirunelveli City on 09.03.2016 for inquiry and after examination, the charges against the respondent has been proved and ordered him to execute bond u/s 117 Cr.PC and on the same day the respondent has been bound over and released him for maintaining good behaviour for one year.

The Inspector of Police (LandO), Palayamkottai PS, has informed in his report that the counter-petitioner Tr.Balamurugan @ Prabhu (40/16) s/o. Chelladurai, who was executed bond u/s 110 Cr.PC on 09.03.2016 for maintaining good behaviour for one year, violated the provision of bond by involving himself in a criminal case in Palayamkottai PS Cr.No.673/16 u/s 294(b), 352, 506(i) IPC, and he explained the details of the case registered against the respondent Tr.Balamurugan @ Prabhu (40/16) s/o Chelladurai, as hereunder.

On 06.05.2016 evening while the complainant Tr.Ananthakumar (30/16) s/o Murugan, 15/20 Kularchirai Nayanar Street, Palayamkottai, Tirunelveli was returning to his home from Super Market in his car, the respondent and his friends who were chatting at a bridge in his village, intercepted his car and as he blown horn they left away. But, when he stopped his car and got down from the car at about 7.30 hours, the afroesaid Balamurugan @ Prabhu and one Ranjith s/o Koilraj and their friends came near the complainant with aggravated mind and abused him with un-parliamentary words, assaulted him on his cheek repeatedly, at that time Balamurugan @ Prabhu threatened him with dire consequences and told him that they will kill him if he does not leave from the village. In this connection, on the complaint of Tr.Ananthakumar, a case in palayamkottai PS Cr.No.673/16 u/s 294(b), 352, 506(i) IPC has been registered. Tmt.Mahalakshmi, S.I.of Police, Palayamkottai PS took up investigation, arrested the accused Balamurugan @ Prabhu, aged 40 years, s/o Chelladurai on 11.06.2016 at 1200 hours and produced him before JM-1, Tirunelveli and remanded to judicial custody. Now, the case is under investigation.

Further, the aforesaid accused Balamurugan @ Prabhu has already involved in 7 cases including 2 murder cases viz., (i) Palayamkottai PS Cr.No.358/2002 u/s 147, 148, 452, 341, 294(b), 302 IPC, (ii) Palayamkottai PS Cr.No.403/2006 u/s 147, 148, 302, 506(ii) IPC, (iii) Palayamkottai PS Cr.No.361/2002 u/s 341, 294(b), 307 IPC r/w 3, 4 of E.S.Act (iv) Palayamkottai PS Cr.No.803/2009 u/s 147, 148, 341, 294(b), 506(ii) IPC, (vi) Palayamkottai PS Cr.No.350/2015 u/s 294(b), 353, 307, 506(ii) IPC and 25(1)(a) of Arms Act, (vii) Palayamkottai PS Cr.No.288/2016 u/s 110 (eandF) Cr.PC. History sheet is being maintained for him in Palayamkottai PS in HS No.247/2005. He has already been detained under Goondas Act on 20.05.2015 in No.48/BCDFGISSV/15 and interned to Central Prison, Palayamkottai and released from Central Prison on 25.08.2015. (Emphasis supplied by me)

During the tenure of bond period u/s 110 Cr.PC, the respondent Tr.Balamurugan @ Prabhu, aged 40 years, s/o Chelladurai violated the provision of bond, involved in criminal offences and acted as rowdy by causing panic to the life and belongings of public. Under these circumstances, if he allowed continuing his act, he will breach the tranquility of public. Thus, the Inspector of Police (LandO), Palayamkottai PS has recommended to take action against the respondent Tr.Balamurugan @ Prabhu u/s 122(1)(b) Cr.PC and to be interned in Central Prision, Palayamkottai continuously. The Assistant Commissioner of Police (LandO), Palayamkottai has also agreed and recommended to take such action against Tr.Balamurugan @ Prabhu.

On perusal of all relevant records produced by the Inspector of Police, Palayamkottai PS, Tirunelveli City, it is determined that necessary action should be taken against Tr.Balamurugan @ Prabhu for preventing breach of peace and to maintain protection among public.

So, the bond executed on Tr.Balamurugan @ Prabhu (40/16) s/o Chelladurai u/s 117 Cr.PC to maintain good behaviour is hereby cancelled and it is ordered to detain the accused Tr.Balamurugan @ Prabhu (40/16) s/o Chelladurai, 16-Kularchirai Nayanar Street, Palayamkottai in Prison until the expiry of the period of the bond viz. 08.03.2017.

Given under my hand and seal on 14.06.2016.

Executive Magistrate /

Deputy Commissioner of Police,

Law and Order,

Tirunelveli City.

48. The said detention order does not show whether the revision petitioner was produced before the detaining authority/2nd respondent and whether he has participated in the enquiry. Whether his views were considered. Whether the petitioner has produced any materials. The impugned order is simply duplicating the report of the sponsoring authority/1st respondent. In para 4, the 2nd respondent referred to the several past cases registered as against the petitioner, his earlier detention under Goondas Act. It is irrelevant for the purpose of a detention under Section 122(1)(b) Cr.P.C. It is concerned with the allegation whether the petitioner has breached the security bond executed by him on 09.06.2016. Again referring the past events is outside the scope of an enquiry under section 122(1) (b) Cr.P.C. However, the 2nd respondent has referred to the past cases, which are also not in proximity on point of time to the present enquiry. The 2nd respondent has simply read the report of the sponsoring authority/1st respondent and in a stray sentence he says that it is necessary to detain him.

49. However, if we look at Section 122(1)(b) Cr.P.C. the Executive Magistrate must record his grounds of satisfaction and he must say whether sufficient cause has been established. But he did not do so. It is complete non-application of mind. The detention order has been passed mechanically. Under such circumstances, a person's personal liberty has been taken away. It is in violation of Article 21 of the Constitution of India and the principles laid down by the Hon'ble Supreme Court in Maneka Gandhi Vs. Union of India [1978 AIR 597]), wherein the Hon'ble Supreme Court has held that deprivation of one's personal liberty by a procedure, which is 'unreasonable', 'unfair', 'unjust' and 'arbitrary' is against law. The impugned detention order has not been passed in accordance with law. Such taking of/deprivation of a person's personal liberty will not stand the test of law. The impugned order suffers from legality, propriety and it is vitiated.

50. In view of the foregoings, it is ordered as under:

(1) Crl.R.C.(MD) No.535 of 2016 is allowed.

(2) The impugned order of detention passed by the 2nd respondent/Executive Magistrate/ Deputy Commissioner of Police (Law and Order), Tirunelveli City in M.C.No.90/Pro/DC.LandO/Tin-c/2016 dated 14.06.2016 is set aside.

(3) The Superintendent, Central Prison, Palayamkottai is directed to set at liberty the revision petitioner, if his further detention is no longer required in connection with any case or proceedings.

Consequently, connected Miscellaneous Petitions are closed.


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