Crl.R.C.(MD).No.886 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 16.08.2023

CORAM

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

Crl.RC(MD)No.886 of 2023

Aasiq Mohamed @ Al-Aasiq

... Petitioner/Respondent

Vs.

1.The II Class Executive Magistrate cum

Thasildhar, Dindigul West,

Dindigul District.

2.The Inspector of Police,

Town West Police Station,

Dindigul District.

... Respondent/Complainant

PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401

of Cr.P.C., to call for the records relating to the proceedings in Na.Ka.No.

4312/2023/A5 by the 1^st respondent dated 07.08.2023 and set aside the same.

For Petitioner

: Mr.D.Vennkatesh

For Respondent

: Mr.R.Sivakumar

Government Advocate (Crl.Side)

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Crl.R.C.(MD).No.886 of 2023

ORDER

This Criminal Revision is filed to quash the proceedings in Na.Ka.No.

4312/2023/A5 by the first respondent dated 07.08.2023.

2. The impugned order passed by the first respondent wherein, the

petitioner was arrested on 21.07.2023 and detained under Section 122(1)(b) of

Cr.P.C for the violation of bond condition executed under Section 110 of Cr.P.C

dated 07.06.2023, he involved in the offence after executing the bond under

Section 110 of Cr.P.C. Aggrieved by the said order, the petitioner has preferred

the present revision.

3. The learned counsel appearing for the petitioner would submit the first

respondent has no jurisdiction to pass the impugned order under Section 122 (1)

(d) of Cr.P.C for which, he placed reliance of the Hon'ble Division Bench

judgment in P.Sathish @ Sathish Kumar Vs. State reported in 2023 (1) MWN

(Crl.) 499 and he seeks for quashment of impugned order.

4. The learned Government Advocate (Crl. Side) submitted that against the

above said order they are going to file SLP before the Hon'ble Supreme Court.

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Crl.R.C.(MD).No.886 of 2023

5. This Court considered the rival submission made by both parties.

6.The issue in this case is that whether the first respondent has

jurisdiction to pass impugned order under Section 122(1)(b) of Cr.P.C against

the petitioner. The said issue was answered by the Hon'ble Division Bench

judgment in P.Sathish @ Sathish Kumar Vs. State reported in 2023 (1) MWN

(Crl.) 499 negatively in the following terms:-

“88. Now that we have ousted the camel and put the

canopy of justice back to where it belongs, our answers to

the questions formulated in paragraph 2 are as under:

(a) GO.Ms. No. 659, dated 12.09.2013 and GO.Ms. No. 181,

dated 20.02.2014 vesting Deputy Commissioners of Police

with the powers of an Executive Magistrate for the purposes

of Section 107 to 110 Cr.P.C., suffer from manifest

arbitrariness and violates the principle of separation of

powers under the Constitution. The GO's are consequently

violative of Articles 14, 21 and 50 of the Constitution of

India and the proviso to Section 6 of the Madras District

Police Act. Resultantly, we declare GO.MS. No. 659, dated

12.09.2013 and GO.MS. No. 181, dated 20.02.2014 as

unconstitutional and ultra vires the aforesaid provisions.

Consequently, the status quo ante that prevailed prior to the

issuance of GO.MS. No. 659, dated 12.09.2013 and GO.MS.

No. 181, dated 20.02.2014 stands restored forthwith.

(b) Ex-consequenti, the decision in Balamurugan v. State,

MANU/TN/2058/2016, will stand overruled.

(c) Violation of a bond executed under Section 110 of the

Cr.P.C., can be dealt with under Section 446 of the Code and

not under Section 122(1)(b) of the Cr.P.C. Consequently, we

affirm the judgment of Mr. Justice P.N. Prakash in Devi v.

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Crl.R.C.(MD).No.886 of 2023

Executive Magistrate (MANU/TN/5284/2020 : 2020 6 CTC

157) in its entirety. The decision of the learned single judge

to the contrary in Vadivel @ Mettai Vadivel v. The State

(Crl.R.C. No. 98