Kamaraj@Ramaraj v. The Executive Magistrate Cum
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2020
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Crl.M.P.No.7147 of 2020 Crl.R.C.No.1027 of 2020 Kamaraj @ Ramaraj ... Petitioner Vs.
State rep by, 1.The Executive Magistrate cum Deputy Commissioner of Police, Adyar, Chennai.
2.The Inspector of Police, J-11 Kannagi Police Station, Chennai-97.
... Respondents PRAYER: Criminal Miscellaneous Petition filed under Sections 397 of the Code of Criminal Procedure, to suspend the sentence imposed by the Executive Magistrate cum Deputy Commissioner of Police, Adyar in M.P.No.12 of Na.Ka.En.114/Neer.Sa.Ndu&Ka.Dhu/Adyar District/2020 in J-11 Kannagi Nagar Police Station No.38/2020 under Section 110 of Cr.P.C dated 16.10.2020 enlarge him on bail and pending disposal of the above revision petition. For Petitioner :
Mr.S.Senthilvel For Respondents :
Mr.C.Iyyappa Raj Additional Public Prosecutor
ORDER
This Criminal Miscellaneous Petition has been filed to suspend the sentence imposed by the Executive Magistrate cum Deputy Commissioner of Police, Adyar in M.P.No.12 of 2020 in Na.Ka.En.114/Neer.Sa.Ndu&Ka.Dhu/Adyar District/2020 in J-11 Kannagi Nagar Police Station No.38/2020 under Section 110 of Cr.P.C dated 16.10.2020 enlarge him on bail and pending disposal of the above revision petition.
2.The petitioner has been detained for violation bond under Section Section 110 Cr.P.C., for which the 1st respondent passed a detention order under Section 122(1)(b) Cr.P.C., Na.Ka.En.114/Neer.Sa.Ndu&Ka.Dhu/Adyar District/2020 dated 16.10.2020.
3.The learned counsel for the petitioner submitted that the petitioner executed a bond under Section 110 Cr.P.C on 14.08.2020. Thereafter, the 1st respondent passed an order under Section 122(1)(b) of Cr.P.C., against the petitioner for violation of Section 110 Cr.P.C., and detained the petitioner on 24.09.2020. The learned counsel submitted that the Hon'ble Supreme Court had held that the Magistrate to give a legal assistance and also inform the concern about the reason of the proceedings and the rights available to him. In this Case, no such exercise have been done. Further, the 1st respondent had merely acted on the report of the 2nd respondent, without verifying its truthfulness or otherwise. The 1st respondent, merely, acted as post office in accepting the report of the 2nd respondent and mechanically passed an order, thereby detaining the petitioner. The detention of the petitioner cannot be done as a matter of routine, since it affects the fundamental right of the petitioner.
4.The learned Additional Public Prosecutor submitted that as per Section 122(1)(b) of Cr.P.C., the order was passed by the 1st respondent. He further submitted that as per Section 122(3) Cr.P.C., 1st respondent after examining such proceedings that is the report received from the 2nd respondent and on further information or evidence if he thinks necessary and after giving concerned person a reasonable opportunity of being heard and thereafter, only the order has to be passed. He further submitted that in this case, all procedures were followed. The other points raised by the petitioner are to be decided in the revision. The petitioner being a notorious person, having involved himself in similar cases, the petitioner is a habitual offender.
5.This Court considered the submissions made on either side and perused the materials available on record.
6.The consistent view of this Court is that for violation of bond executed under Section 110 Cr.P.C., for good behaviour, Section 122(1)(b) cannot be invoked, which has been clearly dealt by this Court in several cases viz., "Malar @ Malarkodi Versus the SubDivisional Magistrate cum Revenue Divisional Officer, Udayarpalayam Taluk, Perambalur District in Crl.R.C.No.1791 of 2002", "Karthigayan @ Pallukarthik Versus The Sub-Divisional Magistrate cum Revenue Divisional Officer, Thanjavur reported in 2015 SCC OnLine Mad 2417" and "Balamurugan
Versus
State and Ors.
reported MANU/TN/2058/2016."
7.This Court in the case of "Vadivel @ Mettai Vadivel Versus The State in Crl.R.C.982 of 2012, dated 24.11.2018" disposed a batch of revision cases, wherein referred to the said earlier judgments and took a contra view and observed that Section 122(1)(b) Cr.P.C., would attract Section 110 Cr.P.C and requested the Registry of this Court, to place the matter before the Hon'ble The Chief Justice, to constitute a larger bench, to decide the issue as framed in paragraph No.19 and the same is extracted hereunder:-
"As regards the execution of bond for good behaviour under Section 108 and109 Cr.P.C., the framers of law could not have intended the Sections, to loosely hang in the statutory hanger, as execution of bond entails enforcement of the same. May be it was an accidental omission, which can be supplemented by purposive interpretation of the statutory scheme as a whole. From the scheme of the Chapter under consideration, this Court could safely infer that there was no intentional omission by the Parliament to render the said provision impotent or ineffective and in such situation, the Courts can play a supplementary role in giving effect to otherwise the intention of the framers so as to give force and life to the intention of the legislature, as expressed by Lord Denning, J. 8.
Though the learned Single Judge deferred, he held that the notice has to be given to the detenue as well, to be heard before order is passed against him under Section 122(1)(b) Cr.P.C. These exercises to be done by after reasonable application of mind. 9.The other learned Single Judge of 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:- "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.
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 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:
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, 1859 (Central Act XXIV of 1859)?"
10.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., with Section 110 Cr.P.C., for other connected issues. 11.In view of the above issues to be decided would take sometime, this Court is inclined to suspend the sentence imposed on the petitioner with the following conditions:-
● The petitioner shall execute own bond for a sum of Rs.10,000/- (Rupees Ten Thousand Only) before the Jailer, Sub-Jail, Ponneri. ● The petitioner shall appear before the 2nd respondent Police every Monday i.e., from 14.12.2020 at 10.00 a.m., until further orders.
12.Hence, the Criminal Miscellaneous Petition is ordered. The Jailer, Sub-Jail, Ponneri., is directed to set at liberty the petitioner, if his further detention is no longer required in connection with any other case or proceedings. -sd/- 08/12/2020 This order, on being produced, be punctually observed and carried into execution by all concerned TRUE COPY Sub-Assistant Registrar (Statistics/C.S.) High Court, Madras - 600 104.
TO 1 THE EXECUTIVE MAGISTRATE CUM DEPUTY COMMISSIONER OF POLICE, ADYAR, CHENNAI.
2 INSPECTOR OF POLICE J-11 KANNAGI NAGAR POLICE STATION, CHENNAI-97. 3 THE PUBLIC PROSECUTOR,HIGH COURT, MADRAS. 4 THE OFFIER INCHARGE,SUB JAIL, PONNERI 5 THE SECTION OFFICER CRIMINAL SECTION, HIGH COURT, MADRAS.
C.C. to M/S.S.SENTHILVEL Advocate on payment of necessary charges Order Crl.M.P.No.7147 of 2020 Crl.R.C.No.1027 of 2020 Date :08/12/2020 From 7.2.2001 the Registry is issuing certified copies of the BAIL/Anti.BAIL Orders in this format RVR 11/12/2020