Orissa High Court
CRLMC/3482/2019 on 4 June, 2020
Author: S.Pujahari
Bench: S.Pujahari
CRLMC No.3482 of 2019
04. 04.06.2020 The order dated 28.11.2019 passed by the
learned 3rd Addl. Sessions Judge, Bhubaneswar in
Criminal Revision No.135 of 2019 upholding the order
dated 25.09.2019 passed by the learned Executive
Magistrate, Bhubaneswar in C.M.C. No.1337 of 2018 is
sought to be quashed by the petitioner under Section
482 of Cr.P.C.
2. C.M.C. No.1337 of 2018 was a proceeding
initiated under Section 110 of Cr.P.C. against the
petitioner by the Addl. Deputy Commissioner of Police-
cum-Executive Magistrate, Bhubaneswar on
10.10.2018. Pursuant to the order passed in the said
case, the delinquent-petitioner executed a bond of
Rs.50,000/- on 11.12.2018 with two sureties on the
terms and conditions that he shall show good
behaviour for a period of two years, shall not get
himself involved in any offence punishable with
imprisonment, and shall appear before the I.I.C.,
Capital Police Station on each Sunday and also before
the Court of the learned Executive Magistrate on each
date of the posting of the case during the period of the
bond. On 17.07.2019 the learned Executive Magistrate
2
Contd......... received a report from the Capital Police Station to the
04.06.2020
effect that the petitioner committed breach of the
conditions of the Bond by involving himself in different
cases of cognizable offences including the one bearing
Capital P.S. Case No.100 registered on 22.03.2019
under Sections 341, 323, 294, 307 and 506 of IPC. The
learned Executive Magistrate upon receiving such
report, recorded statement of the I.I.C., Capital Police
Station and issued process for causing appearance of
the delinquent-petitioner and for submission of show-
cause by him. The petitioner who by then was in jail
custody was produced before the learned Executive
Magistrate on 12.09.2019. As indicated in the order
passed on the said date, the substance of the allegation
/ report made by the Capital police was explained to
him and a copy of the order dated 17.07.2019 along
with a copy of the statement of the witness recorded
was directed to be supplied to him. It would reveal from
the order dated 25.09.2019 that despite the
opportunity given, the petitioner did not file any show-
cause nor did he opt to cross-examine the witness
examined by the Executive Magistrate earlier. Rather,
3
Contd......... he admitted his involvement again in some offences
04.06.2020
punishable with imprisonment. For sake of ready
reference, the order dated 25.09.2019 passed by the
learned Executive Magistrate, Bhubaneswar is
extracted here below;
"xxxxx xxx xxxxx
The delinquent did not file show cause in
person or through his advocate to defend the
allegation of breach of bond and also denied for
cross examination of PW-2. The delinquent
failed to give satisfactory reply as to why he will
not be treated to have committed breach of
bond. The delinquent admitted his involvement
again in an offence punishable with
imprisonment during the period of good
behaviour and could not defend himself from
such charge.
From the report of police regarding
breach of bond supported by statement of
witness & scrutiny of documents submitted by
the IIC, Capital P.S., I am satisfied that the
delinquent did not carry out the conditions of
Good Behaviour bond and committed an offence
vide Capital P.S. Case No.190, dtd. 27.05.2019
U/s.341/323/294/506/34 IPC and failed to
attend before IIC, Capital P.S. every Sunday as
directed in the Good Behaviour Bond. Hence he
committed Breach of Good Behaviour bond as
enumerated U/S 120 Cr.P.C. As such
considering the allegation and inaction of the
delinquent to defend the charge despite wide
opportunity given to him to defend, I am
inclined to reach at the conclusion that the
delinquent has breached the Good Behaviour
Bond and inclined to direct for his detention in
custody till end of the rest period of bond i.e.
upto 08.12.2020. His non-detention in custody
for the above period would disturb the peace
and tranquility in the area.
Xxxxx xxxxxx xxxxxx"
4
Contd......... 3. I have heard the learned counsel appearing for
04.06.2020
the respective parties and perused the relevant papers
on record.
4. It is the contention of the learned counsel for the
petitioner that the learned Executive Magistrate having
not followed the procedure as laid down under Section
122(1)(b) of Cr.P.C., and the principle of natural justice
having been infringed in this case, the order of
detention passed by the learned Executive Magistrate
has no legal sanction or sanctity. He would further
argue that the learned Revisional Court having not
examined the question of legality and propriety of the
aforesaid order, has made a mechanical exercise so as
to dismiss the revision petition.
5. The learned Addl. Standing counsel appearing
for the State, however, supports the impugned orders
by advancing the submission that since it remains
admitted on record that the petitioner-delinquent got
himself involved in offences punishable with
imprisonment giving rise to registration of cases during
the period of his probation, and thereby committed
breach of conditions of the bond, the impugned order
5
Contd......... of detention passed by the learned Executive
04.06.2020
Magistrate and confirmed by the Revisional Court calls
for no interference by this Court.
6. It is the mandate of Indian Constitution under
Article 21 that no person shall be deprived of his life
and personal liberty except according to procedure
established by law. In that view of the constitutional
safeguard, Section 122(1)(b) of Cr.P.C. empowers an
Executive Magistrate to exercise a quashi judicial
function while directing for detention of a person in
custody. Section 122(1)(b) of Cr.P.C. may be re-
produced here below;
"122. Imprisonment in default of security.-
(1)(a) xxxxxx xxxxx
(1)(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."
7. It may be noted with emphasis from the afore-
quoted section that before passing the order of
detention the Magistrate must be satisfied with the
6
Contd......... proof placed regarding breach of the bond, and
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grounds of such proof must also be recorded by him
while passing the order of detention. The exercise as
contemplated under the said section thus involves an
inquiry to be conducted by the Executive Magistrate,
and needless to mention that the said inquiry must be
a fair one satisfying the principle of natural justice.
That apart, when without any charge being framed or
trial conducted, a person is sought to be put behind
the bar to undergo imprisonment, the nature of proof
as required under this section must be worth the name
so as to satisfy judicial conscience.
8. Now reverting to the case at hand, as it appears,
one or more cases were registered by the police against
the petitioner during currency of the bond period, and
the same was treated as the proof of involvement of the
petitioner in the alleged offences. It has been noted in
the impugned order that the petitioner admitted his
involvement in offences punishable with imprisonment,
and that the learned Executive Magistrate was satisfied
that the delinquent-petitioner committed the alleged
offences. He has also mentioned that he scrutinized the
7
Contd......... documents produced by the police / Investigating
04.06.2020
Officer. But, he has not described the nature of any
such documents nor has he expressed as to if those
documents were in relation to the investigation, if any,
conducted by police in the cases those were registered
against the petitioner. A perusal of the impugned
order, rather, shows that the learned Executive
Magistrate based his order on the police report,
statement of the police officer concerned and the
admission said to have been given by the petitioner
regarding his involvement in the alleged offences. There
is, however, no written statement of the petitioner to
show that he admitted his involvement in the alleged
offences. The ground cited by the learned Executive
Magistrate that he was satisfied that the petitioner
committed the offences has no sanction of law
inasmuch as neither he was empowered to conduct
any criminal trial under the Cr.P.C. nor was he
authorized to record any confession or admission of
guilt of any accused.
9. Admittedly, one of the conditions of the
probationary bond was that the petitioner shall not get
8
Contd......... himself involved in any offence punishable with
04.06.2020
imprisonment. It is also not disputed that during
currency of the bond period some criminal cases were
registered by police against him. But, mere registration
of any such case ipso facto cannot furnish a basis of
opinion regarding involvement of the person arraigned
as an accused in such case / offence, especially when
such opinion results in taking away of the personal
liberty of the delinquent under Section 122(1)(b) of
Cr.P.C. Without expressing any opinion regarding
legality of any such condition stipulated in the
probationary bond, it can be said that the inquiry as
enjoined under the aforesaid section of Cr.P.C. should
be of that nature as to be sufficient to form an opinion
that the condition of the bond has actually been
breached. The inquiry as contemplated shall not be an
eyewash exercise. It should be fair, comprehensive and
in accordance with the principle of natural justice.
10. It further reveals from the record that on the
date of the impugned order, the petitioner was
produced before the learned Executive Magistrate from
the jail custody, and no Advocate had been engaged by
9
Contd......... him. The impugned order itself mentions that the
04.06.2020
petitioner could not defend himself. There is nothing on
record to show any step to have been taken by the
learned Executive Magistrate to provide an Advocate to
the in-custody petitioner from the Legal Services Panel
or from any other panel of defence counsel at State
cost so as to enable him to be properly defended.
Needless to mention that to avail free legal services is a
constitutional right of a prisoner. It is the duty of every
Court, be it the Court of the Executive Magistrate, to
ensure that a prisoner in every stage of any legal
proceeding instituted against him, is entitled to be
competently defended either at his own cost or at the
cost of the State. This having not been done in the
present case, it cannot be said that the principle of
natural justice has been duly followed. The learned
Revisional Court appears to have remained oblivious of
the aforesaid aspects and infringements, while dealing
with the revision petition. Hence, both the order of the
learned Executive Magistrate and that of the Revisional
Court cannot be sustained in law.
10
Contd......... 11. In the result, this CRLMC is allowed. The order
04.06.2020
dated 25.09.2019 passed by the learned Executive
Magistrate, Bhubaneswar passed in C.M.C. No.1337 of
2018 and the order dated 28.11.2019 passed by the
learned 3rd Addl. Sessions Judge, Bhubaneswar in
Criminal Revision No.135 of 2019 are hereby quashed.
...........................
S.Pujahari, J.
MRS 11 12