P.Stephenraj v. The Executive Magistrate

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.04.2023

CORAM

THE HONOURABL E MR.JUSTICE V.SIVAGNANAM and Crl.M.P.No.5271 of 2023 P.Stephenraj ... Petitioner vs 1.The Executive Magistrate cum Deputy Commissioner of Police (North), Coimbatore City, Coimbatore.

2.The Inspector of Police, C1, Kattor Police Station (Law & Order), Coimbatore City, Coimbatore.

... Respondents Prayer : Criminal Revision Case filed under section 397 & 401 of Cr.P.C, to set aside the detention order dated 18.10.2022 passed against the petitioner in the proceedings in Miscellaneous Petition No.5/2022 in Na.Ka.No.169/Neer.Se.Nadu/Ka.Thu.Aa(North) Ko.Ma/2022 on the file of the Executive Magistrate cum the Deputy Commissioner of Police, Coimbatore District.

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For petitioner : Mr.M.Dinesh For Respondent : Mr.R.Vinothraja, Government Advocate (Crl.Side)

ORDER

Challenging the order dated 18.10.2022 passed by the 1st respondent in M.P.No.5/2022 in Na.Ka.No.169/Neer.Se.Nadu/Ka.Thu.Aa(North) Ko.Ma/2022, this Criminal Revision is filed by the petitioner. 2.The learned counsel for the petitioner would submit that the 1st respondent passed an order, by his proceedings in M.P.No.5/2022 in Na.Ka.No.169/Neer.Se.Nadu/Ka.Thu.Aa(North) Ko.Ma/2022 dated 18.10.2022 under Section 122(1) of Cr.P.C and remanded the petitioner to undergo imprisonment for the remaining period of the bond till 01.08.2023. This impugned order is unsustainable, in view of the judgment of the Division Bench of this Court dated 13.03.2023 in Cr.R.C.No.137 of 2018 batch cases [P.Sathish @ Sathis Kumar Vs State Rep by The Inspector of Police, Law and Order, H-4 Korukkupet Police Station, Chennai]. Therefore, he seeks to set aside the impugned order passed by the 1st respondent.

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3.The learned Government Advocate (Crl.Side) appearing for the respondent fairly conceded that the 1st respondent is not competent authority to pass an order under Section 122(1)(b) Cr.P.C. 4.I have considered the matter in the light of submissions of the learned counsel for the petitioner and the respondents. 5.On perusal of the records and the impugned order, it reveals that the 1st respondent in pursuance of the complaint given by the 2nd respondent, the Inspector of Police, C1, Kattor Police Station (Law & Order), Coimbatore City, Coimbatore proceeded the proceedings against the petitioner under Section 110 Cr.P.C and directed to execute a bond for keeping good behaviour, pursuant to which, he executed a bond for keeping good behaviour on 02.08.2022. Since the petitioner has violated the bond executed before the Executive Magistrate, the 1st respondent proceeded against him under Section 122(1)(b) Cr.P.C and finally ordered to remand him to undergo imprisonment for the remaining period of the bond till 01.08.2023. The impugned order passed by the 1st respondent 3/6

dated 18.10.2022 in M.P.No.5/2022 in Na.Ka.No.169/Neer.Se.Nadu/Ka.Thu.Aa(North) Ko.Ma/2022 is unsustainable, in view of the order of the Division Bench of this Court dated 13.03.2023 in Cr.R.C.No.137 of 2018 batch cases [P.Sathish @ Sathis Kumar Vs State Rep by The Inspector of Police, Law and Order, H-4 Korukkupet Police Station, Chennai], wherein, this Court relied on the judgement of the Hon'ble Supreme Court reported in (1982) 1 SCC 71 [Gulam Abbas Vs State of Uttar Pradesh]. In paragraph 80 (e) of the said order dated 13.03.2023, it has been held as follows:- "80 (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 Vs State of Uttar Pradesh (1982) 1 SCC 71, an Executive Magistrate cannot authorize imprisonment under Section 123(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 challenged or prosecuted before the Judicial Magistrate for inquiry and punishment under Section 122(1)(b)Cr.P.C"

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6.In the light of the above, the 1st respondent is not competent authority to impose any punishment under Section 122(1)(b)Cr.P.C. Therefore, the impugned order passed by the 1st respondent is set aside and the Criminal Revision Case is allowed. The Superintendent of Prison, Central Prison, Coimbatore is directed to release the petitioner forthwith, if his detention is no longer required in any other case. Consequently, connected miscellaneous petition is closed.

18.04.2023 srn To 1.The Executive Magistrate cum Deputy Commissioner of Police (North), Coimbatore City, Coimbatore.

2.The Inspector of Police, C1, Kattor Police Station (Law & Order), Coimbatore City, Coimbatore.

3.The Superintendent, Central Prison, Coimbatore.

4.The Public Prosecutor, High Court, Madras.

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V.SIVAGNANAM, J.

srn and Crl.M.P.No.5271 of 2023 18.04.2023 6/6