Madras High Court
Murali @ Ponnuchamy vs The Sub Divisional Executive on 9 June, 2016
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.06.2016
CORAM
THE HONOURABLE DR.JUSTICE P.DEVADASS
C.R.L.RC(MD) No.161 of 2016
and
Crl.MP.(MD) Nos.2361 & 2362 of 2016
Murali @ Ponnuchamy ... Petitioner / Respondent
-vs-
1.The Sub Divisional Executive
Magistrate and Assistant Collector
Sivakasi, Virudhunagar District
2.The Inspector of Police
Rajapalayam North Police Station
Virudhunagar District
(Crime No.299 of 2015) ... Respondents /
Respondents
PRAYER: Criminal Revision Petition is filed, under Section 397 r/w 401
Cr.P.C., to call for the records and set aside the order passed by the first
respondent in M.C. No.A5/301/2015 on 27.01.2016.
!For Petitioner : Mr.M.Jothibasu
^For Respondents : Mr.P.Kandasamy
Govt. Advocate (Crl.Side)
:ORDER
The revision petitioner, who is alleged to have breached the bond executed by him for keeping peace and good behaviour and who has been jailed, vide orders of the Sub-Divisional Executive Magistrate and Assistant Collector, Sivakasi Virudhunagar District / 1st respondent, in M.C.No.A5/301/2015, dated 27.01.2016, has directed this revision.
2. The revision petitioner belongs to Rajapalayam. He is involved in so many Ganja cases. On 05.06.2015, Rajapalayam North Police / 2nd respondent registered a case in Crime No.299 of 2015, under Section 110(g) Cr.P.C. He was produced before the 1st respondent / Sub-Divisional Executive Magistrate and Assistant Collector, Sivakasi Virudhunagar District. He has been directed to execute a bond under Section 117 Cr.P.C., for one year covering the period from 15.06.2015 to 15.06.2016. The bond was in force. While so, on 25.08.2015, he was found with Ganja. A case in Crime No.500 of 2015 has been registered by Rajapalayam North Police Station.
3. In this connection, proceedings have been initiated before the first respondent. On 27.01.2016, under Section 122(1)(b) Cr.P.C., the first respondent passed the impugned order directing jailing of the petitioner for the period from 27.01.2016 to 14.06.2016.
4. The learned counsel for the revision petitioner contended that the impugned order does not show application of mind by the Executive Magistrate. The Executive Magistrate does not satisfy himself by referring to the materials produced before him and he did not record the grounds of proof based upon which the detention order under Section 122(1)(b) Cr.P.C., has been passed. The impugned order is vitiated. It has not been passed in proper manner. It is unsustainable in law. The first respondent has not followed the mandatory procedures. Under such a vitiated order, liberty of a person cannot be taken away.
5. The first respondent filed counter.
6. The learned Government Advocate (Criminal Side) submitted that the revision petitioner is a notorious drug-peddler. He is an anti-social element. He has lot of criminal cases to his credit. He is a bad man in Rajapalayam area. He is an history-sheeter. He has breached the terms and conditions of the bond. In the circumstances, the first respondent, having satisfied with the same, passed the impugned order. It is perfectly in order. It is not vitiated. It is in accordance with law.
7. I have anxiously considered the rival submissions, perused the grounds stated in the revision and also the counter filed by the first respondent and the materials on record.
8. Under the Code of Criminal Procedure, there are Judicial Magistrates and Executive Magistrates. In order to keep peace, tranquility and also to prevent persons from indulging in any criminal activities, disturbing the peace of others, powers to take certain preventive measures have been given to the Executive Magistrates.
9. Under Section 117 Cr.P.C., upon satisfaction, the Executive Magistrate may direct such persons to execute a bond, but upto 3 years and when they breach the conditions, he can pass orders to detain them under Section 122 (1)(b) Cr.P.C.
10. It is pertinent to note that such a detention is different from a detention authorised 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 Section 122(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.
11. Under Article 21, Constitution of India, no one shall be deprived of his life and liberty, except by procedure established by law. Thus, Article 21 of the Constitution does not prevent the authorities to take away the liberty or life of a person. But, in doing so, they should follow prescribed procedures. The procedure must be fair, reasonable, not unjust, not arbitrary and not whimsical (See Menaka Gandhi vs. Union of India [1978 AIR 597]).
12. Section 122 Cr.P.C., runs as under:
?122. Imprisonment in default of security.- (1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in person until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it.
(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. (emphasis supplied by me) (2) When such a person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid as soon as conveniently may be, before such Court. (3) Such Court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit :
Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years. (4) If security has been required in the course of the same proceeding from two or more persons in respect of any one of whom the proceedings are referred to the Sessions Judge under sub-section (2) such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event, apply to the case of such other person also, except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security.
(5) A Sessions Judge may, in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings. (6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the Court or Magistrate who made the order, and shall await the orders of such Court or Magistrate. (7) Imprisonment for failure to give security for keeping the peace shall be simple.
(8) Imprisonment for failure to give security for good behaviour shall, where the proceedings have been taken under section 108, be simple and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the Court or Magistrate in each case directs.?
13. Now, in the case before us, the detention order has been passed by the first respondent under Section 122(1)(b) Cr.P.C. As per the said provision, the Executive Magistrate, before ordering a person to be jailed, he shall be satisfied that the person has breached the bond conditions, the Executive Magistrate must also record the grounds for such proof. That means he must apply his mind and pass orders. He cannot pass orders mechanically. But, he need not write an elaborate Judgment like us. His Orders must show atleast briefly the grounds upon which, he has satisfied that the person has breached the bond executed by him. Under Section 122 (1)(b) Cr.P.C., if the said satisfaction is not recorded, it will be presumed that the detention authority sending a person to jail is arbitrary, mechanical, not fair, unjust. The detention order must disclose the grounds of proof, otherwise, Court cannot see what has transpired in the mind of the Executive Magistrate in passing the detention order, more particularly, when these orders are revisable by the Sessions Judges.
14. Now, keeping the above principles and the statutory provisions in our mind, let us notice the impugned order passed in this case.
15. The impugned order passed by the first respondent, dated 27.01.2015, reads as under:
?WHEREAS, Murali S/o.Kattiyakaran appeared before me in person on 15.06.2015 in obedience to a summon calling upon him to show cause why he should not enter into a bond for Rs.50000/-, with surety, that he, the said Murali S/o.Kattiyakaran would keep the peace for a period of one year from the date of execution of bond.
and whereas an order under section 117 of Cr.PC had been passed requiring the said Murali S/o.Kattiyakaran to enter into a bond for Rs.50,000/- with a surety.
and whereas it has been found that he, the said Murali S/o.Kattiyakaran had failed to comply with the said order. (emphasis supplied by me) This is to authorize and require you to receive the said Murali S/o.Kattiyakaran into your custody, together with this warrant and him safely to keep in the said jail for the said period from 27.01.2016 till 14.06.2016 unless he shall in the mean time be lawfully ordered to be released and to return this warrant an endorsement certifying the manner of its execution.?
16. In the said para No.3, the first respondent has stated that whereas it has been found that the revision petitioner had failed to comply with the bond executed by him. More than that, nothing is there. The first respondent did not record the grounds of his satisfaction. He did not refer to any material for his arriving at such a satisfaction. There is no reference in the impugned order as to whether he had referred to the documents produced by the Police. The basis of his satisfaction is not known. The impugned order does not disclose it. The impugned detention order is like the face of an 'Egyptian Sphinx Bird'.
17. As we have already stated, without a charge, without evidence and without trial, a person's liberty has been taken away and he has been jailed for 3 years under Section 122(1)(b) Cr.P.C. So, the Executive Magistrate must be very serious of this matter. In a casual manner, personal liberty of a person has been curtailed. 1st respondent is bound to follow the law. There cannot be compromise with law, more particularly, when it is concerned with the liberty of a person.
18. Now, in this case, the impugned order cannot stand the test of law. It is vitiated. Thus, our interference is called for.
19. Ordered as under:
(i) This criminal revision is allowed. (ii) The impugned order, dated 27.01.2016, passed by the Sub-Divisional
Executive Magistrate and Assistant Collector, Sivakasi Virudhunagar District, in M.C.No.A5/301/2015, is set aside.
(iii) The Superintendent, Central Prison, Madurai, shall release the revision petitioner forthwith, if he is no longer required in connection with any other case / proceedings.
(iv) Consequently, connected criminal miscellaneous petitions are closed.
To
1.The District Collector, Virudhunagar District @ Virudhunagar.
2.The Sub Divisional Executive Magistrate and Assistant Collector, Sivakasi, Virudhunagar District.
3.The Superintendent, Central Prison, Madurai.
4.The Government Advocate (Criminal Side), Madurai Bench of Madras High Court, Madurai.
5.The Inspector of Police, Rajapalayam North Police Station, Virudhunagar District.
.