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2017 Supreme(Mad) 2243

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
A.M.BASHEER AHAMED, J.
Sathish Kumar - Petitioner
Vs.
State Rep.by The Inspector of Police, Srirangam Police Station – Respondent
Crl.RC(MD)No.302 of 2017 and CRL MP(MD)No.2805 of 2017
Decided on : 09-08-2017

Advocates:
Advocate Appeared:
For the Petitioner: Mr.T.Lenin Kumar
For the Respondents: Mr.A.Ramar, Additional Public Prosecutor

Headnote:

Criminal Procedure Code, 1973 - Section 122(1)(b) r/w 111, Section 107 – Illegal detention - Admittedly, the proceedings under Section 107 Cr.P.C., have been initiated on receipt of information from the first respondent by way of registering the case against the petitioner –Beach of bond – Held, no date of hearing is fixed in the proceedings and no time limit is also indicated before which the petitioner is expected to send his representation, as against the proposed proceedings. The contention of the learned Additional Public Prosecutor appearing for the respondents that the communication/proceedings, would amount to Notice/Constructive Notice, cannot be accepted. The contents of the proceedings, dated 21.03.2017 would show the pre-determination of cancelling the bond for breach and passing an order of detention under Section 122(1)(b) of Cr.P.C. Before passing the impugned order of detention, the 2nd respondent herein informed the petitioner through his proceedings, that he is going to detain him by cancelling the bond executed by the petitioner before passing the impugned order of detention. The Executive Magistrate/2nd respondent herein without arriving at a subjective satisfaction and without recording the grounds has passed the impugned order of detention against the petitioner mechanically - Criminal Revision Petition is allowed

ORDER :

This Criminal Revision is preferred praying to set aside the order of the 2nd respondent/Administrative Executive Magistrate/Deputy Commissioner of Police, Tiruchirappalli City, passed in M.C.No.645 of 2016, in C.No.573/EMC/D.C.Trichy City/2016 in Srirangam P.S. Crime No.821/2016, under Section 107 of Cr.P.C., dated 23.03.2017, under Section 122(1)(b) r/w 111 of Cr.P.C., whereby detaining the petitioner in custody.

2. Admittedly, the proceedings under Section 107 Cr.P.C., have been initiated on receipt of information from the first respondent by way of registering the case against the petitioner in Crime No.821 of 2016, on the file of Srirangam Police Station, Trichy City, and the petitioner had executed a bond, dated 09.12.2016, before the 2nd respondent whereby, the petitioner has agreed not to disturb the peace to the Society for one year from the date of execution of the said bond for Rs.10,000/-, with two sureties each for a like sum. On request by the first respondent, before the 2nd respondent/Administrative Executive Magistrate/Deputy Commissioner of Police, Tiruchirappalli City, to pass an order of detention against the petitioner, under Section 122(1)(b) of Cr.P.C., stating that the petitioner had breached the said bond, dated 09.12.2016 by his involvement in Crime No.242 of 2017, for the offences under Sections 379 & 430 of IPC., and under Section 3 of TNPPDL Act, 1992, registered by the first respondent, who arrested the petitioner and was remanded to judicial custody in that case on 18.03.2017. That request of the first respondent was considered by the 2nd respondent in his impugned order, dated 23.03.2017, under Section 122(1)(b) Cr.P.C., cancelling the bond executed on 09.12.2016, by the petitioner having breached the said bond and ordered for detention to undergo the balance period of 261 days in prison.

3. The petitioner/detenue has filed the present Revision questioning the correctness, legality or propriety of the findings, sentence and order passed by the 2nd respondent herein under Section 122(1)(b) Cr.P.C., dated 23.03.2017 in M.C.No.645 of 2016, in C.No.573/EMC/D.C.Trichy City/2016 in Srirangam P.S. Crime No.821/2016, Under Section.107 Cr.P.C.

4. The respondents filed counter statements separately and the learned Additional Public Prosecutor appearing for the respondents and the counsel for the petitioner agreed for final disposal of this Revision Petition, based on available records, at the admission stage itself.

5. The respondents have not chosen to file any records pertaining to the impugned proceedings in this Revision.

6. The learned counsel appearing for the Revision Petitioner would contend that the detention order has been passed in violation of Article 21 of the Constitution of India; that the provision of Section 122 Cr.P.C., would not confer jurisdiction on the Sub-Divisional Magistrate and such impugned order of detention is without jurisdiction; that there was no independent application of mind and the authority has not arrived at a subjective satisfaction before passing the impugned order and the authority simply acted upon the requisition of the first respondent herein and passed the impugned order; that the impugned order has been passed by the 2nd respondent herein in violation of the principles of natural justice, without providing an opportunity of being heard to the petitioner herein and that the registration of the case in Crime No.821 of 2016, for the alleged offence under Section 107 of Cr.P.C., is illegal because Section 107 Cr.P.C., is procedural in nature and is intended for the Executive Magistrate to initiate action against the person, who disturb the public peace and tranquility.

7. Continuing further, the learned counsel would submit that the 2nd respondent herein has relied upon the statements of the first respondent/the Sub-Inspector of Police of Srirangam Police Station, the Village Administrative Officer of Vellithirumutham Village and the Village Assistant of the said












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