Sadam @ Sk. Imran vs State Of Orissa ... Opposite Party on 26 November, 2021

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Orissa High Court

Sadam @ Sk. Imran vs State Of Orissa ... Opposite Party on 26 November, 2021

Sashikanta Mishra,J. In the present application filed under Section 482 of Cr.P.C., the Petitioner questions the correctness of order dated 28 th Page 1 of 13 September, 2021 passed by the learned Sessions Judge, Khurda at Bhubaneswar in Crl. Revision No.48/2021 whereby the order date 11th June, 2021 passed by learned Addl. DCP-Cum- Executive Magistrate, Bhubaneswar (hereinafter to be referred as „Executive Magistrate‟) in CMC No.998/2020 was confirmed. As per order passed by the learned Executive Magistrate, the Petitioner was directed to be detained in custody till the rest period of the bond executed by him for good behaviour in terms of Section 122(1)(b) of Cr.P.C.

2. The brief facts of the case are that alleging that the Petitioner is a habitual offender, a non-F.I.R. being Jatni P.S. non-F.I.R. No.79/2020 was initiated against him on 28 th October, 2020 under Section 110 (a) (b) (c) (d) & (g) of Cr.P.C. The Petitioner was arrested and taken into custody. Subsequently, on 7th December, 2020, the Petitioner was released upon execution of good behaviour bond as per Section 117 of Cr.P.C. for period of two years. It is alleged that while the Petitioner was in good behaviour bond he was involved in Jatni P.S. Case No.167/2021 dated 30th March, 2021 registered under Sections 341/326/307/323/506/34 of I.P.C. read with Sections 25 and 27 of the Arms Act, which corresponds to G.R. Case No.182/2021 of the court of learned J.M.F.C., Jatni.

3. On 31st May, 2021, a report was submitted by Jatni Police Station before the learned Executive Magistrate in CMC No.998/2020 informing the above facts and alleging that the Petitioner had committed breach of the bond. As such, the learned CRLMC No.1896/2021 Page 2 of 13 Executive Magistrate was requested to initiate action against the Petitioner under Section 122(1)(b) of Cr.P.C. By such time the Petitioner had been arrested in connection with Jatni P.S. Case No.167/2021 on 14th May, 2021 and in view of the aforementioned report being filed before learned Executive Magistrate, he was produced in custody on 1st June, 2021. On that date, the substance of allegation relating to breach of good behaviour bond was explained to the Petitioner and he was asked to show cause as to why the bond along with sureties shall not be forfeited and he will not be detained in custody till the rest of the bond period. On the next date, i.e. on 11th June, 2021, the Petitioner was again produced in custody and significantly no Advocate was present on his behalf. Observing that the delinquent had not filed show cause in person or through his Advocate to defend the allegation and also denied for cross examination of P.W.2 and further that the delinquent admitted his involvement and could not defend himself from the charge, learned Executive Magistrate held that the delinquent has breached the good behavior bond and hence, directed him to be detained in custody till end of the rest of period of bond, i.e. upto 5th December, 2022.

4. The Petitioner carried the matter in Revision to the court of learned Sessions Judge, Khurda at Bhubaneswar in Crl. Revision No.48/2021. Learned Sessions Judge, after noting the rival submissions made before him held that even though the name of the Petitioner does not find place in the F.I.R. relating to Jatni P.S. Case No.167 dated 30th March, 2021, yet his alleged involvement in the offence is forthcoming from the forwarding report and other CRLMC No.1896 of 2021 Page 3 of 13 connected documents. Thus, it was held that as there was material before the concerned court that while in good behavior bond, the Petitioner is alleged to have committed other offences, the impugned order holding the Petitioner to have breached the good behavior bond cannot be said to be illegal, incorrect and improper and, therefore, learned Sessions Judge did not find any reason to interfere with the impugned order. The revision was thus dismissed vide the impugned order.

5. Heard Mr. Biswajit Nayak, learned counsel for the Petitioner and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State.

6. It is contended by Mr. Nayak that the revisional court failed to appreciate the submissions raised before him as regards the illegality committed by the lower court in the matter of procedure and also in accepting the allegations as correct without any valid or justified reason. Elaborating on his argument, Mr.Nayak, contends that the Petitioner being an illiterate person is ignorant of legal procedure and, therefore, he cannot be expected to submit a show cause against a report submitted by the Police more so when his lawyer was not present. It is further argued that even if the report submitted by the I.I.C., Jatni Police Station is taken into consideration the same would reveal that there is no direct allegation as against the Petitioner and that he has been entangled in the case solely on the basis of the so called confession of the principal accused namely, Ajit Naik, which is not admissible evidence. The forwarding report also reveals that the Petitioner is alleged to have confessed his involvement in the occurrence in CRLMC No.1896/2021 Page 4 of 13 question before Police while being in custody, which again is not admissible in law. That apart, he cannot be expected to cross- examine the witness produced by the State against him without the aid of his Advocate. Further, learned Executive Magistrate committed illegality in holding that the Petitioner had admitted his involvement in the occurrence in question even though there was no such admission. It is finally argued that law mandates that the Executive Magistrate should be satisfied that the person concerned has committed breach of the bond and, therefore, mere allegation of breach of bond cannot be treated as proof. Thus, by stating all the above grounds, Mr. Nayak contends that the impugned order warrants interference by this Court.

7. Per contra, Mr. S.K.Mishra, learned Addl. Standing Counsel, has argued that the Petitioner is a habitual offender having series of cases in his name. For such reason, he is considered to be a person with potential to disturb peace in society, for which he was rightly called upon to execute a good behaviour bond as per Section 117 of CR.P.C. Under such circumstances, when there is acceptable material to show that he is involved in another offence including a sessions offence, it is automatically proved that he has committed breach of the bond executed by him. To the above extent, therefore, the impugned orders do not warrant any interference.

8. To appreciate the rival contentions, it would be apt to refer to the relevant provisions at the outset. Section 110 of Cr.P.C. reads as under:-

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"110. Security for good behavior from habitual offenders: When [an Executive Magistrate] receives information that there is within his local jurisdiction a person who-

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or

(d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860), or under Section 489-A Section 489-B, Section 489-C or Section 489-D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission of offences, involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of -

              (i)     any offence under one or more of the
              following Acts, namely;
              (a)     the Drugs and Cosmetics Act, 1940
              (23 of 1940);
              (b) the Foreign Exchange Regulation
              Act, 1973 (46 of 1973);
              (c) the Employees' Provident Fund (and
              Family Pension Fund) Act, 1952 (19 of
              1952)
              (d) the Prevention of Food Adulteration
              Act, 1954 (37 of 1954);
              (e) the Essential Commodities Act, 1955
              (10 of 1955)
              (f)    the Untouchability (Offences) Act,
              1955 (22 of 1955)
              (g) the Customs Act, 1962 (52 of 1962)
              (h) the Foreigners Act, 1946 (31 of
              1946); or


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                 (ii) Any offence punishable under any
                other law providing for the prevention of

hoarding or profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security hazardous to the community.

such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with securities, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit".

9. It is seen that as the Petitioner was involved in as many as ten different cases all relating to Jatni Police Station, he was called upon to execute a bond vide Jatni P.S. Non-F.I.R. No.79 dated 28th October, 2020 under Section 117 of Cr.P.C. The Petitioner also executed a good behaviour bond for a period of two years and was thus released on 7th December, 2020. It is alleged that the Petitioner was involved in another case relating to Jatni P.S. Case No.167 dated 30th March, 2021 in which the I.I.C. of Jatni P.S. submitted a report before the learned Executive Magistrate, basing on which the Petitioner was asked to show cause as to why action shall not be taken against him under Section 122(1)(b) of Cr.P.C. Clause (b) of Sub-Section (1) of Section 122 reads as under:-

"(b) If any person after having executed a [bond, with or without sureties] 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 the grounds of such proof, order that the person be arrested and detained in prison until the expiry of CRLMC No.1896 of 2021 Page 7 of 13 the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law."

10. From a bare reading of the above quoted provision, it is evident that a person may be arrested and detained in prison until expiry of the period of the bond, if it is proved to the satisfaction of such Magistrate that he has committed breach of the bond. The language employed in the quoted provision is highly significant, particularly in view of the fact that all the expressions referred to above are affirmative in nature. Thus, commission of breach of the bond being a positive act has to be proved to the satisfaction of the Magistrate, which obviously implies his subjective satisfaction on valid and justified reasons based on acceptable materials placed before him.

11. In such scenario the question posed before the Court is, whether a mere allegation of involvement in an offence can amount to proof of commission of the breach of bond. As has been held by the Madras High Court in the case of Ashik Mohammed @ Mohammed Ashik @ Al Ashik v. The Executive Magistrate and others; Crl.R.C.(MD) No.128 of 2019 dated 29th April, 2019 has held as under:

"Merely because certain cases have been registered against the Petitioner, the same cannot be said to be sufficient ground leading to prove the breach of bond to the satisfaction of the Magistrate concerned that too without CRLMC No.1896/2021 Page 8 of 13 hearing the affected party. A close reading of Section 122(1)(b) of Cr.P.C. would clearly show that the Executive Magistrate shall give an opportunity to the Petitioner and apply his judicial mind and arrive at his satisfaction that the Petitioner had breached the security bond executed by her to keep good behavior and he must also record the grounds of such proof. As per Section 122(1)(b) Cr.P.C., the Executive Magistrate must record his grounds of satisfaction and he must say whether sufficient cause has been established xxx xxx."

The Madras High Court in another i.e., in case of Murali @ Ponnuchamy v. The Sub-Divisional Executive Magistrate and Assistant Collector, Sivakasi and another; C.R.L.RC (MD) No.161 of 2016 dated 9th June, 2016 has held as under:

"It is pertinent to note that such a detention is different from a detention authorized by a Court. Jailing a person by a Judicial Order is based on charges, evidence, trial and a detailed judgment. However, in jailing a person, under Section122(1)(b) Cr.P.C. by the Executive Magistrate, there will be no charge, no evidence and no trial. Without any trial, the liberty of a person can be taken away by the Executive Magistrates. So, it is draconian in nature.An affront to civil and personal liberty."

12. Since it is a question of curtailment of personal liberty of a person which is available to him as a fundamental right under Article 21 of the Constitution of India, it is incumbent upon the concerned authority to abide by the statutory mandate in letter and spirit. Of course curtailment of liberty can be ordered, but the same CRLMC No.1896 of 2021 Page 9 of 13 has to be strictly as per the procedure established by law. This salutary principle enshrined in the Constitution enjoins upon the authority concerned to exercise absolute diligence, alertness and calls for proper application of judicial mind to the facts and circumstances of the particular case before him.

13. The facts of the case when viewed through the prism of the aforementioned legal proposition persuades this Court to hold that the impugned order passed by the learned Executive Magistrate cannot be treated as one passed in consonance with the statutory mandate. As has been rightly pointed out by the learned counsel for the Petitioner, the case record as well as the impugned order does not at all reflect whether proper opportunity was accorded to the Petitioner to defend himself against the allegations of breach of bond. The only thing that transpires from the impugned order is that he failed to submit a show cause and also did not cross-examine P.W.2, though the order is conspicuously silent as to who was examined as P.W.2. Interestingly, a perusal of the case record as produced by the learned Addl. Standing Counsel reveals that only one witness was examined in the case. Nevertheless, learned Executive Magistrate considered this as a default on the part of the Petitioner. It was also held that the Petitioner had admitted his involvement. There is nothing on record to suggest the manner of so-called admission by the Petitioner. Neither his statement of admission was recorded nor his signature or thumb impression taken on the order sheet after explaining the contents thereof. Hence, the bald statement that the Petitioner had admitted his involvement cannot be accepted. Obviously, while dealing with the CRLMC No.1896/2021 Page 10 of 13 matter, learned Executive Magistrate was not alive to the position that the same involves personal liberty of a person as guaranteed under Article 21 of the Constitution of India. It is also a matter of concern that the learned Executive Magistrate failed to record the grounds of his satisfaction as regards proof of the allegation of breach of bond. As has already been narrated hereinbefore, the learned Executive Magistrate has evidently been swayed away by the failure of the Petitioner to "defend the charge" but himself did not record any reasons as to why he independently deemed it proper to accept the allegation as correct.

14. True, an F.I.R. was lodged leading to registration of Jatni P.S.Case No.167/2021 relating to commission of certain offences by one Ajit KumarNayak and some others. It is also stated that the Petitioner‟s involvement in the case came to light during investigation. On such facts being placed, the learned Executive Magistrate ought to have posed the question whether this much alone admitted to breach of the bond ? Without any independent application of mind, learned Executive Magistrate could not have accepted the allegation as correct. This militates against the fundamental principle of criminal jurisprudence that a person shall be presumed to be innocent until proved guilty and that a mere allegation cannot take place of proof. Of course, having regard to the scope and purpose of the provision under Section 122 of Cr.P.C. it is not expected that the proof required for the exercise of power under the said provision can be equated with the proof required to establish guilt in a regular criminal trial. However, for CRLMC No.1896 of 2021 Page 11 of 13 the purpose of this Section also, simply an allegation, that too based upon legally inadmissible statements cannot be treated as proof.

15. The grounds raised by the Petitioner before this Court also appear to have been raised more or less before the learned Sessions Judge in revision but, except for recording the rival submissions, learned Sessions Judge has not taken pain to examine the validity thereof and that too from the perspective of the statutory requirement referred to hereinbefore. Learned Sessions Judge also does not appear to have considered the matter from the perspective of personal liberty of the Petitioner, rather the forwarding report and "other connected documents" appear to have been accepted lock, stock and barrel to hold that the order impugned before him was not illegal, incorrect or improper. It is significant to note that the Petitioner was granted bail by this Court vide order dated 13 th August, 2021 passed in BLAPL No.4949 of 2021, but is in custody because of the impugned orders.

16. Having regard to the forgoing discussion on the point of law involved vis-à-vis the facts of the case, this Court observes that the learned Executive Magistrate committed gross illegality in not giving proper opportunity of defence to the Petitioner as also in mechanically accepting the allegation of violation of bond without any valid or justified reason. This Court is constrained to hold that learned court below also committed manifest error in dealing with the matter mechanically without making any effort to delve deep into the issues involved, for which the impugned order becomes liable to be interfered with.

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17. In the result the CRLMC is allowed. The impugned order is quashed. Learned Executive Magistrate is directed to order release of the Petitioner from custody forthwith. It is directed that the Petitioner shall conduct himself in a manner consistent with the good behavior bond executed by him on 10.11.2020 and shall appear before the I.I.C., Jatni Police Station once every week. It is open to the concerned authorities to take appropriate action against him in accordance with law in case he is proved to have committed breach of the bond in future.

(Sashikanta Mishra) Judge Ashok Kumar Behera CRLMC No.1896 of 2021 Page 13 of 13 CRLMC No.1896/2021 Page 14 of 13 CRLMC No.1896 of 2021 Page 15 of 13

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