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Madras High CourtCRL MP/13110/2021ordered

Rakki @ Rajesh v. The Executive Magistrate Cum Deputy Commissioner Of Police,

2022-03-29Honourable Mr Justice R. Pongiappan4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.03.2022

CORAM

THE HONOURABLE MR.JUSTICE R.PONGIAPPAN Crl.M.P.No.13110 of 2021 in Crl.R.C.No.981 of 2021 Rakki @ Rajesh ... Petitioner Vs.

1.The Executive Magistrate cum Deputy Commissioner of Police, Washermenpet Range, Chennai City Police 2.State:Inspector of Police, Law and Order, H-8, Thiruvottiyur Police Station, Chennai 600 019 ... Respondents PRAYER: The Criminal Miscellaneous Petition is filed under Section 397(1) of Cr.P.C., to suspend the sentence of imprisonment imposed in order dated 28.07.2021 made in MP.No.35 of 2021 in L.R.No.127/ Sec.Pro/DCP WPT/2021 on the file of the Executive Magistrate cum Deputy Commissioner of Police Washermenpet Range, Chennai City Police / Respondent No.1, and enlarge the petitioner on bail pending disposal of the above revision petition.

For Petitioner : Mr.M.Kaveriselvam For Respondents : Mr.Leonard Arul Joseph Selvam Government Advocate (Crl.Side)

O R D E R

This Criminal Miscellaneous Petition has been filed by the petitioner/Accused, seeking suspension of sentence of imprisonment, imposed against the petitioner in MP.No.35 of 2021 in L.R.No.127/ Sec.Pro/DCP WPT/2021 dated 28.07.2021 by the Executive Magistrate cum Deputy Commissioner of Police Washermenpet Range, Chennai City Police.

2. Learned Counsel appearing for the petitioner would submit that in respect of crime No.5502 of 2020 for the offence punishable under Section 379 of IPC and crime No.5690 of 2020 under Section 379

of IPC, the petitioner appeared before the first respondent on 26.06.2021 and on his willingness, the first respondent ordered to furnish secutity for keeping good behaviour and accordingly, he had executed a bond under Section 110 Cr.P.C on 26.06.2021, whereas on 12.07.2021, he was falsely implicated by the H-3, Tondiarpet Police Station in a case registered in Crime No.1210 of 2021 for the offences punishable under Section 392 of IPC and he was remanded to judicial custody on 12.07.2021. Thereafter, the petitioner was produced before the first respondent on 28.07.2021 and without affording sufficient opportunity to defend his case, he has been clamped with the detention order directing him to be in prison for a period of 345 days.

3. 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.

4. The learned Government Advocate (Crl. Side), would submit that the petitioner had furnished a bond to be of good behaviour on 26.06.2021. On violation of the bond, he had involved in the offence on 12.07.2021. The petitioner had previous cases before the execution of the bond, had involved himself in a subsequent case registered in Crime No.1210 of 2021 for the offences punishable under Section 392 of IPC. The first respondent, after affording sufficient opportunity, finding violation of the bond, passed the order of detention.

5. Heard the learned counsel appearing on either side and perused the materials on record.

6. This Court in "Devi Versus The Executive Magistrate-cumDeputy 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, 1868 (Central Act XXIV of 1868)?"

7. Now, both the learned Single Judges of this Court 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.

8. 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 alone, with the following conditions:- (a) The petitioner is ordered to be released on bail, on his executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate Court, Thiruvotriyur. (b) The petitioner and the sureties shall affix their photographs and Left Thumb Impressions in the surety bonds and the Magistrate may obtain a copy of their Aadhaar Cards or Bank Pass Books to ensure their identities.

(c) The petitioner shall report before the second respondent Police daily at 5.00 p.m., until further orders.

9. Hence, the Criminal Miscellaneous Petition is ordered to the extent of granting Suspension of Sentence. The Superintendent, Central Prison-I, 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.

10. The Criminal Miscellaneous Petition is ordered accordingly. -sd/- 29/03/2022 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 JUDICIAL MAGISTRATE,THIRUVOTRIYUR 2 THE CHIEF JUDICIAL MAGISTRATE THIRUVALLUR(FOR INFORMATION) 3 THE EXECUTIVE MAGISTRATE CUM DEPUTY COMMISSIONER OF POLICE,, WASHERMENTPET RANGE, CHENNAI CITY POLICE 4 THE INSPECTOR OF POLICE LAW AND ORDER, H-8, THIRUVOTTIYUR POLICE STATION, CHENNAI-600 019 5 THE SUPERINTENDENT, CENTRAL PRISON-I, PUZHAL, CHENNAI 6 THE PUBLIC PROSECUTOR HIGH COURT, MADRAS.

7 THE SECTION OFFICER, CRIMINAL SECTION, HIGH COURT,MADRAS.

C.C. to M/S.M.KAVERISELVAM Advocate on payment of necessary charges Sr.4678 Order in CRL MP.13110/2021 in Crl.R.C.No.981 of 2021 Date :29/03/2022 From 7.2.2001 the Registry is issuing certified copies of the BAIL/Anti.BAIL Orders in this format RVR 30/03/2022