Madras High Court
Pandi @ Suriyapandi @ Sarayapandi vs The Executive Magistrate/Assistant ... on 29 July, 2015
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.07.2015
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
CRL.O.P.(MD)Nos.13878 of 2015 and 13957 of 2015
and M.P.(MD) Nos.1 and 2 of 2015 in Crl.O.P.(MD) No.13878 of 2015 and
M.P.(MD) No.1 of 2015 in Crl.O.P.(MD) No.13957 of 2015
CRL.O.P.(MD)Nos.13878 of 2015:
Pandi @ Suriyapandi @ Sarayapandi .. Petitioner
.. Vs ..
1.The Executive Magistrate/Assistant Commissioner of Police,
Trichy City.
2.The Inspector of Police,
Ariyamangalam Police Station,
Trichy City.
3.The Superintendent,
Central Prison,
Trichy. .. Respondents
Criminal Original Petitions filed under section 482 of the Code of
Criminal Procedure, praying to call for the records relating to the
proceedings in M.C.No.490/Ni.Se.Na/Thi.Maa/15 dated 26.05.2015 on the file of
the first respondent and to quash the same.
!For Petitioner : Mr.A.Thiruvadi Kumar
for Mr.N.Anandakumar
For Respondents : Mr.K.Anbarasan
Government Advocate (Crl. Side)
CRL.O.P.(MD)Nos.13957 of 2015:
Deva @ Vasudevan .. Petitioner
.. Vs ..
State Rep., by
The Inspector of Police,
Woraiyur Police Station,
I/c. G.H. Police Station,
Tiruchirappalli City,
Tiruchirappalli District. ..
Respondents
Criminal Original Petitions filed under section 482 of the Code of
Criminal Procedure, praying to call for the records in
M.C.415/ep.br.e./jp.kh/15, on the file of the Administrative Executive
Magistrate/Deputy Commissioner of Police, Tiruchirappalli City,
Tiruchirappalli District dated 16.06.2015 and to quash the proceedings
against the Petitioner herein.
For Petitioner : Mr.A.Thiruvadi Kumar
For Respondent : Mr.K.Anbarasan
Government Advocate (Crl. Side)
:COMMON ORDER
The petitioners herein were proceeded with Section 101 of the Criminal Procedure Code. Thereafter, orders have been passed under Section 117 of the Criminal Procedure Code, requiring the petitioners to execute a bond with sureties. The said order has been passed on the ground that it was proved that such an action is required and necessary for keeping peace and maintaining good behaviour. Accordingly, the petitioners have executed the bonds with sureties. Thereafter, by the orders impugned passed under Section 122(1)(b) r/w 111 of the Criminal Procedure Code, the petitioners were directed to be kept under custody till 18.05.2018 and 27.04.2016 respectively for having violated the bonds executed by them. Challenging the same, the petitioners have come forward with these petitions.
2. The learned counsel for the petitioners submitted that Section 122 of the Criminal Procedure Code speaks only about imprisonment in default of security. Such imprisonment can only be imposed only when there is breach of the bond proved to the satisfaction of the said Magistrate. The Magistrate concerned is duty bound to records grounds of such proof. Thereafter, on satisfaction should proceed to arrest and detain the person concerned in prison. But such an exercise has not been done. A perusal of the orders under challenge would show that they have been passed merely based upon the reports of the Inspectors of Police, which indicate that one case has been registered against the petitioner in Crl.O.P.(MD) No.13878 of 2015 and two cases have been registered against the petitioner in Crl.O.P.(MD) No.13957 of 2015.
3.The learned counsel also submitted the principle of natural justice will have to be looked into or otherwise the said provision would hit Article 21 of the Constitution of India.
4.The learned Government Advocate (Criminal side) would submit that in as much as the petitioner in Crl.O.P.(MD) No.13878 of 2015 is concerned, he involved in one case and the petitioner in Crl.O.P.(MD) No.13957 of 2015 has involved in two cases. Therefore, the orders impugned do not warrant interference.
5.This Court finds considerable force in the submission of the learned counsel for the petitioners. Section 122 of the Code of Criminal Procedure makes it clear that it is mandatory on the part of the Magistrate concerned to be satisfied of the breach of bond by the person concerned. Such breach has to be proved by the police. Therefore, there is an element of quasi judicial function involved. Admittedly, the order to be passed has got its own consequences, in as much as it intends to take the liberty of the person concerned. Therefore, it goes without saying that an opportunity of being heard has to be afforded. When it is stated that a breach has to be proved, then necessarily the person against whom it is sought to be proved has to be heard. A satisfaction of the Magistrate has to be recorded in the order to be passed. Such satisfaction should be based upon the materials to be produced by the police officer concerned as well as the contra material, if any, that could be produced by the persons against whom the said provision is sought to be invoked. It is also for the reason, this proceedings is without prejudice to the other punishment that can be imposed against the accused persons.
6.A perusal of the impugned order would show the non-application of mind of the Executive Magistrate. Merely because certain cases have been registered against the petitioners, ipso facto, 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 hearing the affected party.
7.Accordingly, these Criminal Original Petitions are allowed and the impugned orders are set side. Consequently, connected Miscellaneous Petitions are closed.
To
1.The Executive Magistrate/Assistant Commissioner of Police, Trichy City.
2.The Inspector of Police, Ariyamangalam Police Station, Trichy City.
3.The Superintendent, Central Prison, Trichy.
4.The Inspector of Police, Woraiyur Police Station, I/c. G.H. Police Station, Tiruchirappalli City, Tiruchirappalli District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..