Karnataka High Court
Sri Vinay @ Vinay Kumar vs State Of Karnataka on 12 December, 2023
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CRL.RP No. 1265 of 2023
NC: 2023:KHC:45105
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.1265 OF 2023
BETWEEN:
SRI VINAY @ VINAY KUMAR
S/O PUTTASWAMY
AGED ABOUT 24 YEARS
R/AT NO.38, NEAR KRISHNA HOSPITAL
MAGADI MAIN ROAD, GOLLARAHATTI
BENGALURU - 560 091
...PETITIONER
(BY SRI. HARISH H V, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY THE INSPECTOR OF POLICE
LAW AND ORDER
RAJ GOPAL NAGAR P S
BENGALURU - 560 086
Digitally signed
by REKHA R
Location: High
2. THE SPECIAL EXECUTIVE MAGISTRATE AND DEPUTY
Court of COMMISSIONER OF POLICE
Karnataka BENGALURU NORTH DIVISION
BENGALURU - 560 022
...RESPONDENTS
(BY SRI. CHANNAPPA ERAPPA, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE
2ND RESPONDENT/SPECIAL EXECUTIVE MAGISTRATE AND
DEPUTY COMMISSIONER OF POLICE, NORTH DIVISION,
BENGALURU CITY IN CRM/MAG/156/2023/DCP(N)/BENGALURU
CITY DATED 30.08.2023 WHEREIN THE SPECIAL EXECUTIVE
MAGISTRATE AND DEPUTY COMMISSIONER OF POLICE, NORTH
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CRL.RP No. 1265 of 2023
NC: 2023:KHC:45105
DIVISION, BENGLAURU CITY HAS ORDERED THE COLLECTOR
OF BENGALURU CITY TO FORFEITURE THE IMMOVABLE
PROPERTY OF THE PETITIONER AND RECOVER IT AS LAND-
REVENUE, IF THE AMOUNT OF RS.1,00,000/- (ONE LAKH
RUPEES) IS NOT PAID BY THE PETITIONER BEFORE
10.09.2023, FURTHER THE PETITIONER HAS TO UNDERGO
IMPRISONMENT FOR THE REMAINING PERIOD OF THE BOND
EXECUTED BY THE PETITIONER UNDER SECTION 110 OF
CR.P.C. I.E., TILL 11.04.2024, THEREBY ALLOWING THE ABOVE
CRL.RP IN ITS ENTIRETY AND GRANT SUCH OTHER RELIEF/S
DEEM FIT UNDER THE CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
In this petition filed under Section 397 r/w 401 Cr.P.C, petitioner has challenged the order dated 30.8.2023 passed by respondent No.2, forfeiting the bond executed by the petitioner for a sum of Rs.1,00,000/- with an undertaking to keep peace and good behaviour for a period of one year with effect from 12.04.2023, failing which to forfeit the bond and to undergo imprisonment for the balance period.
2. In support of the petition, petitioner has contended that Suo-motu complaint was filed against the petitioner in PAR (Preventive Action Report)No.31/2023 -3- CRL.RP No. 1265 of 2023 NC: 2023:KHC:45105 under Section 110 (g) of Cr.P.C, by PSI, Rajgopal Nagar P.S, alleging that petitioner is a rowdy sheeter and was found threatening the general public of Kapilanagara, Hegganahalli claiming that he is a rowdy sheeter and Dada of the area. There are several cases pending against him for the offence punishable under Section 307 I.P.C and if anyone is dare to give evidence against him would face dire consequences. With these allegation, the petitioner was taken into custody and presented before respondent No.2 under Section 110 Cr.P.C on 12.04.2023. Alleging that petitioner pleaded guilty, he was directed to execute a bond for good behaviour for a period of one year with effect from 12.04.2023. However, on 31.07.2023, a Suo- motu FIR was registered against the petitioner in Cr.No.398/2023 of Kamakshipalya police station for the offences punishable and Sections 399 and 401 I.P.C and Section 25 (1) (B) of Arms Act. He was produced before respondent No.2.
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3. Petitioner appeared through his counsel and contested the matter. Respondent No.1 examined himself and got marked Ex.P1 to 7.
4. Petitioner has not lead any evidence on his behalf.
5. After hearing arguments of both sides, respondent No.2 has passed the impugned order and directed for forfeiture of the bond executed by the petitioner and for violation of the bond condition, he has been sent to prison to undergo imprisonment for remaining period of the bond.
6. Aggrieved by the same, petitioner has filed this petition contending that the impugned order is obnoxious and opposed to law, it calls for interference by this Court. It suffers from factual as well as legal infirmities. The proceedings in PAR.No.31/2023 was initiated to harass the petitioner. Respondent No.2 is not bestowed with the powers to accept the plea guilty of petitioner under -5- CRL.RP No. 1265 of 2023 NC: 2023:KHC:45105 Section 111 Cr.P.C. The violation of a bond executed under Section 110 of Cr.P.C can be dealt with under Section 446 of Cr.P.C and not under Section 122 (1) (b) of Cr.P.C. Vesting the Deputy Commissioner of Police with powers of the Executive Magistrate for the purpose of Section 107 to 110 Cr.P.C suffers from manifest arbitrariness and violates the principles of separation of powers under the Constitution. It is unconstitutional and ultra-virus. Breach of bond under Section 122 (1) (b) results in initiation of proceeding under Section 446 Cr.P.C. Hence, the order passed by respondent No.2 directing petitioner to undergo imprisonment is liable to be set aside and hence the petition.
7. In support of his arguments, learned counsel for petitioner has relied upon the following decision:
(i) P.Sathish @ Sathish Kumar Vs. State, Rep by the Inspector of Police-Law & Order, Chennai & Anr.(P.Sathish)1 1 Crl.R.C.No.137/2018 and connected cases -6- CRL.RP No. 1265 of 2023 NC: 2023:KHC:45105
8. Respondents have appeared through High Court Government Pleader and he has supported the impugned order contending that in exercise of the powers conferred in respondent No.2 after following the procedure under the provisions has passed the order. In fact, the order passed by respondent No.2 directing petitioner to execute bond for maintaining peace and good behaviour is not challenged. During the pendency of the bond period, petitioner is again involved in a case for the offences punishable under Sections 399 and 400 I.P.C and therefore, criminal cas is registered against him. For violation of the bond executed by the petitioner, proceedings were initiated and after recording evidence and after providing reasonable opportunity to defend himself, the impugned order came to be passed and prays to dismiss the petition.
9. In support of his arguments, the learned High Court Government Pleader has relied upon the following decision of the Hon'ble Supreme Court:
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NC: 2023:KHC:45105
(i) Devadassan vs. The Second Class Executive Magistrate, Ramanathapuram & Ors.
(Devadassan)2
10. Heard the arguments and perused the record.
11. Thus, proceedings under Chapter 8 of Cr.P.C. was initiated before the respondent No.2, who is invested with the powers under Section 107 to 111 Cr.P.C, as per Notification dated 28.09.2018. The learned counsel for petitioner submitted that only the power under Section 107 and 111 are invested with the respondent No.2 and he had no power to proceed under Section 112 to 124 Cr.P.C. Section 107 and 211 deal with substantive powers in an Executive Magistrate. The remaining Section deal with the procedure to be followed while exercising the powers under Section 107 to 111 of Cr.P.C. Therefore, it goes without saying that in order to exercise the power under Section 107 and 211, respondent No.2 is vessted with the powers in the remaining provisions. Therefore, the arguments of the learned counsel that respondent 2 Crl.A.No.388/2022 [SLP(Crl)No.8438/2021] -8- CRL.RP No. 1265 of 2023 NC: 2023:KHC:45105 No.2 had only the power to order for executing the bond, but he has no power to enforce the same is without any substance.
12. On 12.4.2023, Head constable 8895 Hanumesh, Head constable 9806 Manjunath and PC 19853 Umesh S have given report to the effect that on that day at 10 a.m when they were in the sixth beat, they came across the petitioner claiming that he is a rowdy sheeter and several cases under Section 307 are registered against him and if anyone dare to give evidence against him, they would face the consequences. They apprehended the petitioner and came to know that he is a rowdy sheeter in Rajgopalnagar P.S and several cases are pending against him.
13. Based on the said reports, the PSI of Rajgopalnagar P.S registered case in PAR.No.31/2023 and produced the petitioner before the Special Executive Magistrate and Deputy Police Commissioner, North Division, Bengaluru city. Based on the report, proceedings were initiated under the provisions of chapter 8. A show -9- CRL.RP No. 1265 of 2023 NC: 2023:KHC:45105 cause notice was issued under Section 111 Cr.P.C calling upon the petitioner as to why he should not be directed to execute a bond for a sum of Rs.1,00,000/- for keeping peace and good behaviour. Petitioner admitted the fact of several cases pending against him and agreed to execute bond. Accordingly he executed the bond for sum of Rs.1,00,000/- with an undertaking that from 12.04.2023, he would maintain peace and good behaviour for a period of one year, failing which he is ready to forfeit the bond and also undergo imprisonment for the remainder of bond period.
14. However, on 31.07.2023, on receipt of credible information that four person including the petitioner are waiting near Kaveripura hillock with weapons with the intention of committing robbery, PSI, Vishwanath Reddy and staff apprehended them and from their possession knife, three clubs, one vicket and chilli powder were recovered. Based on the report submitted by the PSI, case was registered in Cr.No.398/2023 of Kamakshipalya P.S for the offences punishable under Sections 399 and 402
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CRL.RP No. 1265 of 2023
NC: 2023:KHC:45105 I.P.C and sections 25(1) (b) of Arms Act and they were remanded to judicial custody. Petitioner is in judicial custody under UTP.No.7737/ 2023. In the light of the same, the PSI has sought for forfeiting the bond of the petitioner and sentence him to undergo imprisonment for the balance period of the bond.
15. In response to the notice, the petitioner has appeared through counsel and filed objections. However, the petitioner has not produced any evidence. On the other hand the learned counsel for petitioner submitted that since petitioner is very poor, he is unable to pay the amount due under the bond. Considering the material placed on record, in the light of the fact that there is violation of the bond condition, in exercise of power under Section 122 of Cr.P.C, the respondent No.2 has passed the impugned order directing recovery of the bond amount as arrears of land revenue and also sentenced the petitioner to undergo imprisonment for the remaining period of the bond.
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16. Chapter VIII of Cr.P.C deals with security for keeping the peace and for good behaviour. While section 106 deals with the power of the Sessions Court or the Magistrate requiring a convicted person to execute bond for keeping peace, Section 107 and 210 deals with the powers of the Executive Magistrate calling for executing bond for good behaviour and on violation of the terms and conditions of the bond, to hold enquiry and on being convinced about the violation of the bond condition, to detain the person in custody for the expiry of the bond period and also recover the bond amount as arrears of land revenue. As held by the Hon'ble Supreme Court in Devadassan, Legislature has introduced Chapter 8 conferring powers on the Authorities to take action for violation of peace and tranquility in public order by the citizens of the locality. Otherwise, by following the procedure as prescribed, the action may be taken by the competent authority in the said case. On appreciation of the entire material placed on record, the Hon'ble Supreme Court observed that the procedure contemplated under
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CRL.RP No. 1265 of 2023
NC: 2023:KHC:45105 Chapter 8 has been followed and it is a trite law that by following the procedure established by law, the personal liberty of the citizen can be dealt with.
17. In the present case also, in response to the show cause notice, petitioner has appeared before respondent No.2 and after providing reasonable opportunity, order was passed, calling upon the petitioner to execute bond for good behaviour. Admittedly, the order dated 12.04.2023, calling upon the petitioner to execute the bond is not challenged by him. Accordingly he has executed the bond. However, within the period of bond, the petitioner is involved in offence punishable under Sections 399 and 402 I.P.C and sections 25(1) (b) of Arms Act. On proof of violation of the terms and conditions of the bond, respondent No.2 has rightly ordered for forfeiting the bond, to recover the amount due under the bond as arrears of land revenue and also committed him to prison to undergo imprisonment for the remaining bond period, as provided under Section 122 of Cr.P.C.
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18. As already noted, Section 122 Cr.P.C deals with power of the Court or the Magistrate to commit the person who violates the bond conditions to undergo imprisonment for the remainder of the bond period. As per Section 122(1)(a), if any person who has ordered to give security under Section 106 or 117, failed to give security on or before the date on which he is required to give such security, such Court or the Executive Magistrate has power to commit the defaulter to prison until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it. As per Section 122 (1) (b), if such person after having executed a bond with or without surety for keeping the peace in pursuance of an order of a Magistrate Under Section 117 is proved to the satisfaction of such Magistrate, or his successor-in-office, to have committed breach of the bond, such Magistrate, or successor-in-office may, after recording grounds of such proof, order that such person be arrested and detained in prison until the expiry of the period of bond. Such order shall be without
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CRL.RP No. 1265 of 2023
NC: 2023:KHC:45105 prejudice to any other punishment or forfeiture to which such person may be liable in accordance with law.
19. However, as per Section 122 (2), when such person has been ordered by a Magistrate to give security for a period exceeding one year, and if such person fails to give security, then such Magistrate is required to issue warrant against him, directing him to be detained in prison pending the orders of the Sessions Judge and the proceeding shall be laid, as soon as conveniently may be, before such Court. Thus only when the period of bond exceeds one year, then the Executive Magistrate is required to lay proceedings before the Sessions Court after retaining the person in prison. In the present case having regard to the fact that the Bond period is one year, the contention of the learned counsel for petitioner that the Executive Magistrate has no power to commit petitioner to prison to undergo imprisonment for the remainder bond period and he is required to lay proceedings before the Sessions Court is not correct. In
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CRL.RP No. 1265 of 2023
NC: 2023:KHC:45105 the light of decision of the Hon'ble Supreme Court in Devadassan, this Court is of the considered opinion that respondent No.2 is well within his powers to pass the impugned order and there are no justifiable grounds to interfere with the same.
20. So far as the decision relied upon by the petitioner in Crl.RP.No.137/2018 and connected matters, in the said proceedings, the validity of the Government order vesting the powers in the Executive Magistrate was challenged. In the light of the decision of the Hon'ble Supreme Court in Devadassan referred to supra, the order relied upon by the learned Counsel for petitioner is not applicable to the case on hand. In light of the above discussion, this Court is of the considered opinion that the petition fails and accordingly the following:
ORDER
(i) Petition filed by the petitioner under Section 397 r/w Section 401 of Cr.P.C is hereby rejected.
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CRL.RP No. 1265 of 2023 NC: 2023:KHC:45105 (ii) The impugned order dated 30.08.2023 passed by respondent No.2 in CRM/MG/156/2023/DCP(N)/Bengaluru City is here by confirmed. Sd/- JUDGE RR List No.: 1 Sl No.: 40