DEVADASSAN versus THE SECOND CLASS EXECUTIVE MAGISTRATE, RAMANATHAPURAM & ORS. on 9 March 2022

1. Leave granted.

2. Assailing the order dated 22.7.2021 passed in Criminal RC(MD)No. 379 of 2021 and Crl. MP (MD) No. 3829 of 2021 by the MadrasHigh Court, Madurai Bench, confirming the order dated 13.5.2021 ofFthe respondent No. 1 in MC No. 95 of 2021 (A3), the present appeal hasbeen filed by the appellant.

3. The facts in brief are, the respondent No. 1 and the HighCourt found the appellant guilty for breach of the conditions of bond andpunished him in exercise of power under Section 122(1)(b) of the CodeGof Criminal Procedure (in short “Cr.P.C.”). The orders impugned indicatethat the appellant was indulged in criminal activities, however, therespondent No. 1 after notice and affording opportunity, passed order on24.2.2021 under Section 117 read with Section 110(e) Cr.P.C.. Incompliance, the appellant executed a bond to maintain good behaviourand peace for a period of one year and also undertook to pay Rs. 50,000/H

- as penalty to the Government in case of breach or else face theproceedings under Section 122(1)(b) Cr.P.C. Even on execution of bond,he was found involved in an offence of commission of murder, registeredby Uchipuli Police Station as Crime No. 149 of 2021 under Sections147/148/342/302 read with 109/120(B) IPC. The respondent No. 1 videorder dated 13.5.2021 found him guilty for breach of bond however,ordered his arrest and sent him to the custody. The said order has beenaffirmed by the High Court, however, this appeal has been filedchallenging both the orders.

4. Shri A. Lakshminarayanan, learned counsel appearing for theappellant has strenuously urged that the orders passed by theadministrative authorities usually do not follow the procedure prescribedand afford reasonable opportunity. The High Court of Delhi in the caseof Aldanish vs. State of NCT of Delhi 2018 SCC online Del 12207issued the guidelines to impart training to these officers. Reliance hasalso been placed on the judgment of Madras High Court in the case ofDevi vs. Executive Magistrate (Mad HC) 2020 SCC online Mad 2706,wherein the High Court taking a different view from the previousjudgment directed to place the matter before Hon’ble the Chief Justicefor constituting the Division Bench to hear the similar issue. Learnedcounsel has also placed reliance on a judgment of this Court in PremChand vs. Union of India (1981) 1 SCC 639 specifying the manner, inwhich the police personnel must act upon, but the personal liberty cannotbe put into peril on their mercy. Further, placing reliance on the judgmentof this Court in the case of Gopalanachari vs. State of Kerala 1980(Supp) SCC 649, learned counsel emphasized the importance of Article21 of the Constitution of India and its significance. In view of the saidsubmissions, imposition of conditions in the bond without due enquiryand affording reasonable opportunity is wholly unjustified, and appellantcannot be held guilty and may be sent to the custody unceremoniously.

5. On the other hand, Dr. Joseph Aristotle S., learned counselrepresenting the respondents contends that eight criminal cases werepending against the appellant, therefore bond of good behaviour wastaken in exercise of the power under Section 117 Cr.P.C. asking security.On violation of the said bond, by virtue of the powers conferred underSection 122(1)(b) Cr.P.C., the order impugned has rightly been passed.It is urged that Chapter VIII of Cr.P.C. confer powers to the ExecutiveMagistrate for taking bond to keep the peace and security for goodbehaviour from the suspected persons. Appellant gave the undertaking AB

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Aon breach of conditions of bond due to which he may be dealt with asper Section 122(1)(b) Cr.P.C. Later, appellant was found involved in anoffence of commission of murder, however a show cause notice wasissued fixing date for appearance on 7.5.2021. In the reply filed byappellant, execution of the bond has not been disputed and making himaccused in a murder case has also not been denied, except to controvertBthat without proving guilt, he may not be responsible for the said act.The competent authority affording opportunity to the appellant, has rightlypassed the order on 13.5.2021 on establishing violation of the terms ofthe bond executed on 24.2.2021 by the appellant. It is urged procedureas contemplated has been followed by the respondents, however,Cinterference was not called by the High Court, to which interferenceunder Article 136 of Constitution is not warranted.

6. After hearing learned counsel for the parties and on perusal ofrecord, it appears that from 2012 to January, 2021, eight criminal caseswere registered against the appellant, including of simple and grievousDhurt, theft and also under the Arms Act. After the report received fromthe respondent No. 2, a show cause notice was issued to the appellantand enquiry was conducted by respondent No. 1. In furtherance thereto,his statement was recorded and the response had also been taken. Therespondent No. 1 recorded the satisfaction that the appellant might causebreach of peace in the locality, however directed him to furnish a bondEto the sum of Rs. 50,000 without surety for a period of one year underSection 117 Cr.P.C., failing which he may serve the imprisonment underSection 122(1)(a) Cr. P.C. or in case of breach of conditions, recourseof Section 122(1)(b) Cr.P.C. may be taken. The contents of the bondexecuted by the appellant are relevant hence reproduced as under:F“MC No. 95/2021

ORDER MADE U/S 117 CR.P.C. READ WITH 110(E)CR.P.C.

ORDER MADE U/S 117 CR.P.C. READ WITH 110(E)CR.P.C.

This case was initiated in the court of 2[nd] Class Magistrateand Tahsildar, Ramanathapuram on the basis of case registeredGin Uchipuli Police Station. This person was produced before thisCourt on 24.2.2021. Enquiry was conducted in the court and theprovisions mentioned in show cause notice issued was explainedto DEVADHASAN 28/21, S/O DEIVENTHIRAN,MARAVETTIVALASAI, in detail statement and arguments ofHthe parties were taken.

Considering all these facts and the information receivedfrom inquiry, this Court has arrived at the conclusion at the personName Devadhasan 28/21, s/o DEIVENTHIRAN is likely tocreate Breach of Peace in the locality and therefore shall be boundu/s 117 Cr.P.C. by using a bond for Rs. 50,000/- without sureties,for a period of one year from.

Thus, this Court of Second Class Ex. Magistrate andTahsildar, Ramanathapuram hereby ordered to execute a Bondfor Rs. 50000/- without sureties, for a period of 1 year from24.2.2021 failing which he shall serve imprisonment for the abovementioned u/s 122(1)(a) in case of breach conditions during theperiod of bond the individual state be imprisonment for the remainingperiod u/s 122 (1)(b).

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Second Class Magistrate

& Tahsildar

Ramanathapuram”

7. After execution of bond, on 31.3.2021 Crime No. 141 of 2021was registered joining the appellant as co-accused for the offences underSections 147/148/342/302 r/w 109/120(B) IPC at P.S. Uchipuli,Ramanathapuram and breached the terms and conditions of the bond. Ashow cause notice was issued asking the response and also soughtappearance of appellant before the respondent No. 1 on 7.5.2021. Hesubmitted his explanation and his statement was recorded. The respondentNo. 1 affording opportunity passed the order on 13.5.2021 holding theappellant guilty for violation of the terms and conditions of the bond andpunished under Section 122(1)(b) Cr.P.C. In pursuance of the order, heis arrested and sent to prison. It is to observe that Chapter VIII of Cr.P.C.confer powers to the Executive Magistrate to take bond for maintainingsecurity and for keeping the peace and good behaviour by the citizens.As per Section 107 Cr.P.C, on receiving the information, that any personis likely to commit a breach of peace or disturb the public tranquility or todo any wrongful act, the Executive Magistrate may have power to showcause on violation of the terms of the bond so executed for maintainingpeace. As per Section 108 of Cr.P.C., similar power has been given formaintaining the security for good behaviour from persons disseminatingseditious matters. Similarly, to take security for good behaviour fromsuspected persons and habitual offenders, powers under Sections 109

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Aand 110 Cr.P.C. have been conferred upon the Executive Magistrate. Inthe present case, the order was passed under Sections 111 and 117 Cr.P.C.for security. On violation, recourse, specified under Section 122 Cr.P.C.is permissible. Therefore, the Legislature introduced the said Chapterconferring powers on the authorities to take action for violation of peaceand tranquility in public order by the citizens of the locality, otherwise, byBfollowing the procedure as prescribed, the action may be taken by thecompetent authority.

8. Learned counsel for the appellant has heavily relied upon thedirections issued by the Delhi High Court as well as Madras High Courtin the cases of Aldanish & Devi (supra) emphasizing in general that theCadministrative officers do not follow the procedure, so prescribed andalso relied upon the judgment of Gopalanachari (supra) emphasizingthe importance of Article 21 of the Constitution of India affecting personalliberty of the citizens. But, in the facts of the case at hand, nothing hasbeen brought on record that how and in what manner the procedureDcontemplated under Chapter VIII of Cr.P.C. has not been followed. It isa trite law that by following the procedure established by law, the personalliberty of the citizens can be dealt with. Looking to the facts of this case,the bond executed by the appellant on 24.2.2021 under Section 110 readwith Section 117 Cr.P.C. has been violated by him on account of hisinvolvement in a criminal case, registered subsequently. In the presentEcase, the bond executed by the appellant has not been questioned. Infact, the subsequent action of passing the order dated 13.5.2021 sendinghim to the custody due to violation of the bond as per the mandate of lawhas been assailed. As per the discussion made hereinabove, in ourconsidered opinion, the order passed by respondent No. 1 is after following Fthe procedure, so prescribed and affording due opportunity to theappellant. The High Court has rightly affirmed the said order. In thefacts, the argument advanced by the learned counsel for the appellantcannot be countenanced.

9. In view of the discussion made hereinabove, we are of theGconsidered view that the orders passed by the High Court and respondentNo. 1 do not call for any interference. Therefore, this appeal is bereft ofany merit, hence dismissed.

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Nidhi Jain