Orissa High Court
Rahama @ P. Ramarao vs State Of Odisha ..... Opp. Party on 11 December, 2021
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1530 of 2021
An application under section 482 of the Code of Criminal Procedure,
1973 challenging the order dated 23.08.2021 passed by the learned
Sessions Judge, Khurda at Bhubaneswar in Crl. Revision No. 39 of
2021 confirming the order dated 21.05.2021 passed by the Addl. DCP-
cum-Executive Magistrate, Bhubaneswar in CMC No. 97 of 2020
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Rahama @ P. Ramarao ..... Petitioner
-Versus-
State of Odisha ..... Opp. Party
Advocate(s) appeared in this case :-
_________________________________________________________
For Petitioner : M/s. Debasis Sahoo & P.K. Panda,
Advocates
For Opp. Party : Mr. P.K. Mohanty
Addl. Standing Counsel
_________________________________________________________
CORAM :
JUSTICE SASHIKANTA MISHRA
ORDER
th 11 December, 2021 SASHIKANTA MISHRA, J.
In the present application filed under Section 482 of Cr.P.C., the Petitioner questions the correctness of order dated 23.08.2021 passed by the learned Sessions Judge, Khurda at Bhubaneswar in Crl.
Page 1 of 11Revision No.39/2021 whereby the order date 21st May, 2021 passed by learned Addl. DCP-Cum- Executive Magistrate, Bhubaneswar (hereinafter to be referred as 'Executive Magistrate') in CMC No.97/2020 was confirmed. As per the aforementioned 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 Capital P.S. non-F.I.R. No.2/2020 was initiated against him on 24th January, 2021 under Section 110 (a) & (g) of Cr.P.C. The Petitioner was arrested and taken into custody. Subsequently, on 03.04.2020, the Petitioner was released upon execution of good behaviour bond as per Section 117 of Cr.P.C. for a period of two years. It is alleged that while the Petitioner was in good behaviour bond he was involved in Badagada P.S. Case No.149/ dated 16.04.2021, registered under Sections 379/411/34 of I.P.C.
3. On 5th May, 2021, a report was submitted by Capital Police Station before the learned Executive Magistrate in CMC No.97/2020 informing the above facts and alleging that the Petitioner had committed breach of the bond. As such, the learned 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 Badagada P.S. Case No.149/2021 on 16th April, 2021 and in view of the aforementioned report being filed before learned Executive Magistrate, he was produced in custody on 6th May, 2021. On that date, the substance of allegation relating to breach of good behaviour bond was explained to the Petitioner and he was asked Page 2 of 11 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 18th May, 2021, the Petitioner was again produced in custody and significantly no Advocate was present on his behalf. Thereafter another chance was given for consideration of his show cause, if filed, and for passing of final order regarding breach of Bond. The petitioner was remanded to Jail custody till 21.05.2021. On 21st May, 2021, the Petitioner was again produced in custody and 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 31.03.2022.
4. The Petitioner carried the matter in Revision to the court of learned Sessions Judge, Khurda at Bhubaneswar in Crl. Revision No.39/2021. Learned Sessions Judge, after rejecting the petitioner's contention that Section 122(1)(b) is not attracted when the bond was executed for maintaining good behaviour, held that the Petitioner was provided with an opportunity to submit show cause on his production before the Court and was served with copy of the order with a view to make him aware about the substance of the allegation but he denied to have filed show cause or cross-examine the E.O. Thus, it was held that as there was ample material before the concerned court that while in good behavior bond, the petitioner has committed further offence, Page 3 of 11 thereby, he breached the bond. It was further held that since the petitioner was given opportunity of hearing and filing of show cause, it cannot be said that any illegality was committed by the trial Court or there was failure of natural justice. Thus, holding that the nature of offence shown to have been committed by the petitioner having been involved in 30 cases of different nature, would go to show that he is a habitual offender. Learned Sessions Judge, therefore, did not find any reason to interfere with the impugned order and the revision was dismissed vide the impugned order.
5. Heard Mr. D. Panda, learned counsel for the Petitioner and Mr. P.K. Mohanty, learned Addl. Standing Counsel for the State.
6. It is contended by Mr. Panda 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.Panda, 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. 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 Page 4 of 11 stating all the above grounds, Mr. Panda 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 dangerous 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 other offences, 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:-
"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 Page 5 of 11
(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
(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".
It is seen that as the Petitioner was involved in as many as seven different cases, all relating to Capital Police Station, he was called upon to execute a bond vide Capital P.S. Non-F.I.R. No.02 dated 2020 dated 24.01.2020 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 03.04.2020. It is alleged that the Petitioner was involved in another case relating to Badagada P.S. Case No.149 dated Page 6 of 11 16.04.2021 in which the I.I.C. of Capital 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 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."
9. 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. This Court had an occasion to deal with a case involving similar facts and law, i.e., the case of Sadam @ Sk. Imran in CRLMC No. 1896 of 2021, wherein after examining the statutory provisions and the settled position of law, it was held that the language employed in Section 122(1)(b) is highly significant, particularly in view of the fact that all the expressions referred to therein 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.
Page 7 of 1110. 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. 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 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.
11. The facts of the case, when viewed in light of the aforementioned legal propositions 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 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 as P.W.-1. Nevertheless, learned Executive Magistrate considered this as a default on the part of the Petitioner. It was also held that the Petitioner had Page 8 of 11 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 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.
12. It is 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 Page 9 of 11 regular criminal trial. However, for the purpose of this Section also, simply an allegation cannot be treated as proof.
13. 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 procedure followed by the Executive Magistrate appears to have been accepted as fair and in conformity to the principles of natural justice even though the same, as discussed hereinbefore, is not the case at all. It was incumbent upon the learned Sessions Judge to scan the order sheet of the proceeding before the Executive Magistrate keeping in mind the salutary principle of liberty of the petitioner and to be subjectively satisfied as to if the Executive Magistrate was right in simply accepting the allegation of breach of bond made by the concerned IIC without rendering any independent finding.
14. 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 mechanically accepting the findings of the Executive Magistrate without making any effort to Page 10 of 11 delve deep into the issues involved, for which the impugned order becomes liable to be interfered with.
15. 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 03.04.2020 and shall appear before the I.I.C., Capital 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.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack The 11th December, 2021/ A.K. Rana Page 11 of 11