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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.SATHISH KUMAR, N. ANAND VENKATESH, JJ.
P.Sathish @ Sathish Kumar – Appellant
Versus
State rep.by The Inspector of Police-Law & Order – Respondent
Crl.RC.Nos.137 of 2018, 78 of 2020, 616 of 2015, 1213 of 2016, 1217 of 2016, 1214 of 2016, 1215 of 2016, 1216 of 2016, 1312 of 2016, 1569 of 2016, 161 of 2017, 1366 of 2017, 1367 of 2017, 1392 of 2017, 1393 of 2017, 1439 of 2017, 1585 of 2017, 1478 of 2017, 1479 of 2017, 1501 of 2017, 1528 of 2017, 1540 of 2017, 1541 of 2017, 991 of 2018, 1164 of 2018, 1241 of 2018, 970 of 2018, WP(MD).No.24662 of 2019, Crl.RC.Nos.1025 of 2018, 982 of 2018, 1286 of 2018, 1322 of 2018, 1371 of 2018, 72 of 2019, 1386 of 2018, 1410 of 2018, 1511 of 2018, 54 of 2019, 1066 of 2018, 1142 of 2018, 87 of 2019, 955 of 2018, 993 of 2018, 1295 of 2018, 1422 of 2018, 1474 of 2018, 1476 of 2018, 26 of 2020, 61 of 2020, 107 of 2020, 117 of 2020, 251 of 2020, 285 of 2020, 298 of 2020, 336 of 2020, 344 of 2020, 404 of 2020, 472 of 2020, 473 of 2020, 484 of 2020, 485 of 2020, 488 of 2020, 512 of 2020, 515 of 2020, 516 of 2020, 528 of 2020, 540 of 2020, 543 of 2020, 553 of 2020, 562 of 2020, 564 of 2020, 567 of 2020, 569 of 2020, 577 of 2020, 580 of 2020, 592 of 2020, 610 of 2020, 622 of 2020, 640 of 2020, 725 of 2020, 751 of 2020, 754 of 2020, 758 of 2020, 772 of 2020, 773 of 2020, 784 of 2020, 790 of 2020, 817 of 2020, 822 of 2020, 851 of 2020, 858 of 2020, 859 of 2020, 861 of 2020, 865 of 2020, 867 of 2020, 868 of 2020, 873 of 2020, 883 of 2020, 891 of 2020, 892 of 2020, 900 of 2020, 921 of 2020, 924 of 2020, 927 of 2020, 938 of 2020, 947 of 2020, 954 of 2020, 957 of 2020, 963 of 2020, 971 of 2020, 978 of 2020, 993 of 2020, 1013 of 2020, 1017 of 2020, 1022 of 2020, 1023 of 2020, 1027 of 2020, 1028 of 2020, 1031 of 2020, 1061 of 2020, 1063 of 2020, 1072 of 2020, 1086 of 2020, 1094 of 2020, 1096 of 2020, 1098 of 2020, 1008 of 2020, 1116 of 2020, 1127 of 2020, 1197 of 2020, 1204 of 2020, 1224 of 2020, 1243 of 2020, 300 of 2021, 334 of 2021, 335 of 2021, 353 of 2021, 357 of 2021, 433 of 2021, 688 of 2021, 778 of 2021, 781 of 2021, 880 of 2021, 905 of 2021, 913 of 2021, 914 of 2021, 916 of 2021, 923 of 2021, 925 of 2021, 951 of 2021, 972 of 2021, 981 of 2021, 985 of 2021, 1012 of 2021, 1036 of 2021, 1050 of 2021, 1053 of 2021, 1082 of 2021, Crl.RC.No.137 of 2018 etc., cases And Crl.RC.No.78 of 2020 etc., cases 1098 of 2021, 1110 of 2021, 3 of 2022, 26 of 2022, 31 of 2022, 35 of 2022, 38 of 2022, 42 of 2022, 52 of 2022, 62 of 2022, 115 of 2022, 118 of 2022, 121 of 2022, 128 of 2022, 135 of 2022, 166 of 2022, 180 of 2022, 183 of 2022, 215 of 2022, 223 of 2022, 270 of 2022, 286 of 2022, 287 of 2022, 293 of 2022, 299 of 2022, 309 of 2022, 317 of 2022, 345 of 2022, 365 of 2022, 397 of 2022, 398 of 2022, 415 of 2022, 416 of 2022, 424 of 2022, 439 of 2022, 443 of 2022, 500 of 2022, 506 of 2022, 607 of 2022, 625 of 2022, 639 of 2022, 653 of 2022, 655 of 2022, 656 of 2022, 657 of 200, 659 of 2022, 661 of 2022, 684 of 2022, 687 of 2022, 697 of 2022, 701 of 2022, 703 of 2022, 709 of 2022, 713 of 2022, 722 of 2022, 724 of 2022, 755 of 2022, 813 of 2022, 817 of 2022, 823 of 2022, 829 of 2022, 833 of 2022, 849 of 2022, 852 of 2022, 860 of 2022, 863 of 2022, 869 of 2022, 886 of 2022, 887 of 2022, 890 of 2022, 903 of 2022, 922 of 2022, 924 of 2022, 926 of 2022, 975 of 2022, 984 of 2022, 992 of 2022, 1005 of 2022, 1006 of 2022, 1012 of 2022, 1028 of 2022, 1040 of 2022, 1047 of 2022, 1092 of 2022, 1104 of 2022, 1116 of 2022, 1119 of 2022, 1123 of 2022, 1138 of 2022, 1144 of 2022, 1147 of 2022, 1148 of 2022, 1161 of 2022, 1170 of 2022, 1189 of 2022, 1190 of 2022, 1208 of 2022, 1212 of 2022, 1227 of 2022, 1241 of 2022, 1245 of 2022, 1259 of 2022, 1282 of 2022, 1284 of 2022, 1309 of 2022, 1320 of 2022, 1391 of 2022, 1400 of 2022, 1401 of 2022, 1408 of 2022, 1420 of 2022, 1445 of 2022, 1475 of 2022, 1491 of 2022, 1555 of 2022, 1560 of 2022, 1569 of 2022, 1580 of 2022, 1600 of 2022, 1604 of 2022, 1605 of 2022, 1606 of 2022, 1607 of 2022, 1624 of 2022, 1634 of 2022, 1646 of 2022, 1649 of 2022, 1650 of 2022, 1653 of 2022, 1664 of 2022, 1665 of 2022, 1672 of 2022, 1673 of 2022, 1674 of 2022, 1676 of 2022, 1688 of 2022, 1693 of 2022, 5 of 2023, 8 of 2023, 10 of 2023, 18 of 2023, 21 of 2023, 23 of 2023, 27 of 2023, 30 of 2023, 33 of 2023, 34 of 2023, 36 of 2023, 40 of 2023, 47 of 2023, 68 of 2023, 77 of 2023, 78 of 2023, 83 of 2023, 86 of 2023, 91 of 2023, 94 of 2023, 95 of 2023, 104 of 2023, 112 of 2023, 122 of 2023, 123 of 2023, 129 of 2023, 144 of 2023, 166 of 2023, 159 of 2023, 164 of 2023, 165 of 2023, 167 of 2023, 168 of 2023, 169 of 2023, 183 of 2023, 184 of 2023, 194 of 2023, 198 of 2023, 222 of 2023, 270 of 2023, 271 of 2023, 312 of 2023, 318 of 2023, 329 of 2023, 178 of 2018, 150 of 2021, 304 of 2021, 650 of 2021, 201 of 2023, 285 of 2023, 302 of 2023, 316 of 2023 and 808 of 2021. AND Crl.OP.Nos.14872 of 2021, 14883 of 2021, 14909 of 2021, 14993 of 2021, 14919 of 2021, 14926 of 2021, 15027 of 2021, 15028 of 2021, 15031 of 2021, 25073 of 2021, 1223 of 2022, 3779 of 2022, 3936 of 2022, 70 of 2023 AND Crl.MP.Nos.881 of 2019, WMP(MD).No.21292, 21293 of 2019, Crl.MP.No.2234 of 2020, Crl.MP.Nos.5520 of 2020, 9571 of 2022, 6353 of 2020, 6592 of 2020, 6756 of 2020, 3934 of 2022, Crl.MP.Nos. 8098, 8111, 8177, 8186 of 2021, 8194, 8179, 8195, 8180, 8196 of 2021, 8324 of 2022, 16340 of 2022, 15841 of 2022, 18884 of 2022, 19251 of 2022, 19254 of 2022, 2833 of 2023, 2929 of 2023, 642 of 2023, 542 of 2023, 1902 of 2022, 1238 of 2023, 1291 of 2023, 1297 of 2023, 1302 of 2023, 1301 of 2023, 1303 of 2023, 2555 of 2023, 1403 of 2023, 1404 of 2023, 1539 of 2023, 1498 of 2023, 1781 of 2023, 2239 of 2023, 2242 of 2023, 2577, 2597, 368 of 2023
Decided on : 13-03-2023
Constitution of India, 1950 - Article 21 - Criminal Procedure Code, 1973 - Section 122(1)(b), 110, 107 - Canopy rested uneasily over head of revenue official as well - Police, like proverbial camel in tent, occasionally got their noses into canopy but were stopped in tracks by Courts - Camel, in its entirety, snuggled itself in and revenue official/Executive Magistrate was ousted from canopy and left in cold - Held, Court place on record our appreciation for assistance rendered by learned counsel for petitioners, learned Additional Public Prosecutor and Amicus Curiae - Court were dealing with a very important issue directly touching upon liberty of an individual under Article 21 of Constitution of India and we could not have written this exhaustive judgment and answered questions that were referred to us, without able assistance of Bar - Ordered Accordingly.
JUDGMENT :
N. SATHISH KUMAR, N. ANAND VENKATESH, JJ.
For ease of reference, this order is divided into the following sections:
| S No. | Title |
| I | Backdrop to the Reference |
| II | Questions for Consideration |
| III | Submissions |
| IV | Discussion |
|
| Re: Questions (ii) and (iv) |
|
| Re : Questions (i) and (iii) |
| V | Conclusions |
Once upon a time, under the canopy of justice sat the Judicial Magistrate who exercised preventive jurisdiction under the Code of Criminal Procedure to ensure that law and order prevailed in the areas under his jurisdiction. Docket explosion, delay and other allied reasons in the regular courts necessitated the statutory transfer of this canopy to an Executive Magistrate: a revenue official who exercised jurisdiction upon information being laid by the police. The canopy rested uneasily over the head of the revenue official as well. The police, like the proverbial camel in the tent, occasionally got their noses into the canopy but were stopped in the tracks by the Courts. Then in 2013, the camel, in its entirety, snuggled itself in and the revenue official/Executive Magistrate was ousted from the canopy and left in the cold. The significance of this short narrative would unfurl in the discussion that follows:
I. BACKDROP TO THE REFERENCE :-
These matters have been placed before this Division Bench pursuant to the orders of the Hon’ble Acting Chief Justice to resolve the conflict between the decisions of V. Parthiban, J in Vadivel @ Mettai Vadivel v The State (Cr.R.C 982 of 2018 etc., batch) and P. Devadass, J in Balamurugan v State (2016 SCC Online Mad 23460) on the one hand and that of P.N. Prakash, J in Devi v Executive Magistrate (2020 6 CTC 157) on the other hand. The reference is occasioned in the backdrop of the following facts:
a. In a batch of cases before V. Parthiban, J in Vadivel @ Mettai Vadivel v The State (Crl.RC.No.982 of 2018 etc., batch), the question that arose was whether the petitioners, who had executed bonds under 110(e) of the Code of Criminal Procedure (hereinafter the “Cr.P.C”), could be proceeded against and imprisoned by an Executive Magistrate under Section 122(1)(b) Cr.P.C., for breach of the bond conditions. The contention raised before the learned judge was that Section 122(1)(b) was concerned with a case of imprisonment for breach of a bond given under Section 107 and not under Section 110 Cr.P.C. This contention had earlier found favour with Mr.Justice Malai Subramanian in Crl.R.C.No.1791 of 2002 etc., dated 31.10.2002 in Malar @ Malarkodi vs The Sub-Divisional Magistrate cum Revenue Divisional Officer and Mr. Justice M. Sathyanarayanan in Karthigayan @ Pallukarthik vs. The Sub-Divisional Magistrate cum Revenue Divisional Officer and Others (2015 SCC Online Mad 2417).
b. V. Parthiban, J differed with the aforesaid views and held that Section 122(1)(b) must be purposively construed to include the breach of a bond under Section 110 Cr.P.C also. In view of his disagreement with the earlier decisions, the learned judge directed the matter to be placed before the Hon’ble Chief Justice seeking a reference to a Division Bench to answer the following questions:
(ii) Whether the Executive Magistrate concerned can exercise his power under Section 122(1)(b) for violation of bond executed for good behaviour under Sections 108 and 109 of Cr.P.C. by treating the order of the Magistrate passed under Section 117 Cr.P.C. which explicitly include good behaviour also, as one, by harmonious construction and interpretation of the provisions concerned in order to render purpose and effect to the scheme of Chapter VIII of Cr.P.C.?”
c. When the aforesaid reference was pending, one Devi, who had the dubious distinction o
Executive Magistrate lacks jurisdiction to detain individuals for bond violations; such authority resides exclusively with Judicial Magistrates under the Code.
Executive Magistrate exceeded jurisdiction by ordering detention under Section 107 of CrPC, violating Article 21. Illegal detention entitled petitioner to compensation.
Petitioner/Intervener with regard to violation of Rule 16(1) of Rules, 1958 and FR 56(d) and given a detailed finding that there is no violation of the said Rules, in view of the power of relaxation ....
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