Madras High Court
Vadivel @ Mettai Vadivel vs The State on 24 November, 2018
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 24.11.2018
CORAM
THE HONOURABLE THIRU JUSTICE V. PARTHIBAN
Crl.Revision Case Nos.982, 991, 1164, 1295,
1322, 1241 of 2018 and
970, 1025, 1070, 993, 1066, 1080,
1142, 1286, 955, & 1371 of 2018
Crl.R.C.No.982 of 2018
Vadivel @ Mettai Vadivel .. Petitioner
versus
The State, rep.by
The Inspector of Police,
M-3, Puzhal Police Station. .. Respondent
Prayer: This Criminal Revision Case is filed under Section 397 &
401 of Cr.P.C., against the order dated 20.07.2018 passed by the
learned Executive Magistrate cum Deputy Commissioner of
Police, Washermenpet District in proceedings in RC
No.24/Se.Pro/DCP WPT/2018.
For Petitioner : Mr.K.Thenrajan
For Respondents : Mr.G.Harihara Arun-
Somasankar, GA
http://www.judis.nic.in
2
COMMON ORDER
The above Criminal Revision Cases raise two important legal issues with reference to bond executed under Section 110 of Cr.P.C. and invocation of Sub Clause (1)(b) of Section 122 Cr.P.C. by the Executive Magistrate.
2. The first and foremost contention made by the learned counsels appearing for the petitioners, is that in case of bond executed under Section 110 Cr.P.C., the Executive Magistrate does not have any power to invoke Sub Clause (1) (b) of Section 122 of Cr.P.C.
3. Section 110 Cr.P.C. which deals with the execution of bond for good behaviour from habitual offenders, is extracted as under:
"110. Security for good behaviour from habitual offenders.-
When an Executive Magistrate receives information that there is within his local http://www.judis.nic.in 3 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 489A, section 489B, section 489C or section 489D 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:-
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(a) the Drugs and Cosmetics Act, 1940 (23 of 1940 );
(b) the Foreign Exchange Regulation Act, 1973 ] (46 of 1973 );
(c) the Employees' Provident Funds and Family Pension Fund] Act, 1952 ;-- 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 or (52 of 1962 );
(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 sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit."
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4. According to the learned counsels appearing for the petitioners, "security for good behaviour" as provided under the above Section is different from "security for keeping peace"
as provided under Section 107 Cr.P.C., which reads as under:
"107. Security for keeping the peace in other cases.
(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond,with or without sureties,] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such http://www.judis.nic.in 6 jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.
5. In the cases on hand, according to the learned counsels, the petitioners have executed bonds under Section 110 Cr.P.C. for the good behaviour and in view of FIR being registered against them during the period of bond, the Executive Magistrate concerned invoked Section 122 (1)(b) Cr.P.C. and sentenced the petitioners be arrested and detained in prison until expiry of the bond period. The learned counsels appearing for the petitioners would submit that Section 122 (1)(b) Cr.P.C. specifically deals with keeping the peace in pursuance of the order of the Executive Magistrate under Section 117 Cr.P.C. and in which event, for violation of bond executed under Section 110 Cr.P.C., Section 122(1)(b) cannot be invoked and therefore, the order of arrest and detention passed by the Executive Magistrate in respect of the petitioners who had executed bond under Section 110 Cr.P.C. http://www.judis.nic.in 7 is without the authority of law. It is relevant to extract Section 122(1)(b) Cr.P.C. as under:
"122. Imprisonment in default of security.
(1) (a) ...... ...... .......
(b) If any person after having executed a bond 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."
According to the learned counsels, such power is not vested in the above provision of the Criminal Procedure Code and in the absence of any specific provision, arresting and detaining the petitioners for violation of execution of bond for good http://www.judis.nic.in 8 behaviour under Section 110 Cr.P.C. is unconstitutional and being violative of Article 21 of the Constitution of India.
6. The learned counsels, in support of their contentions, would rely upon two decisions of this Court, viz.,
i) Unreported decision in Crl.R.C.No.1791 of 2002, etc. dated 31.10.2002 (Malar @ Malarkodi versus The Sub Divisional Magistrate cum Revenue Divisional Officer, Udayarpalayam taluk, Perambalur Distrit), wherein, a learned Judge of this Court while dealing with the identical issue in respect of invocation of Section 122(1)(b) Cr.P.C, has concluded in paragraph 4 as under:
"4. Section 117 of the Criminal Procedure Code speaks about two aspects.
They are: Execution of bonds can for keeping the peace, and execution of bonds for maintaining good behaviour. In all these cases, bonds were admittedly executed for maintaining good behaviour, since http://www.judis.nic.in 9 proceedings were initiated only under Section 110 of the Criminal Procedure Code. Section 117 of the Criminal Procedure Code makes a distinction between bonds to be executed for keeping the peace and for maintaining good behaviour. The relevant portion of the provision is this:
"If upon inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be..."
A careful reading of this provision only indicates that the provision makes a distinction between the bond to be executed for keeping the peace and the bond to be executed for maintaining good behaviour. The schedule to the Criminal Procedure Code also contains two different forms.
Form No.12 has to be used by the authorities concerned, if bond has to be executed to keep the peace, whereas Form No.13 is provided for execution of the bond for good behaviour. Therefore, there can be no doubt that a bond can be executed either for keeping the peace or for maintaining good behaviour. But not for both. Even if a http://www.judis.nic.in 10 person is asked to execute bond for proceedings initiated under Section 107 as well as under Section 110 of the Criminal Procedure Code even then two different bonds have to be executed by him.
Therefore, Section 117 makes it clear that the bond for keeping the peace is distinct and different from the bond for maintaining good behaviour. If the proceedings are initiated under Section 107, a bond is ordered to be executed for keeping the peace in Form No.12 and if the proceedings are initiated under Section 110, a bond for maintaining good behaviour has to be executed in Form No.13.
"5. Now coming to the provision contained in Section 122 (1)(b), which was invoked by the Sub-Divisional Magistrate to imprison the petitioners, I find that the said provision speaks only about execution of bond for keeping the peace. Section 122 (1)
(b) starts like this. "if any person after having executed a bond 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 http://www.judis.nic.in 11 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 or detained in prison until the expiry of the period of the bond..."
Therefore, it is made clear that Section 122 (1)(b) is not attracted when the bond was executed for maintaining good behaviour. Of course, there appears to be no provision, in case of violation of a bond executed for maintaining good behaviour except to forfeit the bonds. It is left to the Parliament or Legislature concerned to fill up the gap, if necessary. It would suffice to say that in so far as the violations committed in breach of the bond executed under Section 117 in the proceedings initiated under Section 110, Section 122(1)(b) is not at all attracted and therefore, the order passed by the Sub- Divisional Magistrates concerned have to be quashed."
ii) "Karthigayan @ Pallukarthik versus The Sub http://www.judis.nic.in 12 Divisional Magistrate cum Revenue Divisional Officer"
reported in 2015 SCC OnLine Mad 2417, wherein, this Court's attention is specifically drawn to paragraph 6 of the order of the learned Judge, which is reproduced herein below:
"6. This Court has carefully considered the rival submissions and also perused the materials placed before it. Admittedly, the petitioner has executed a bond under Section 110 of Cr.P.C. on 12.03.2014 undertaking to keep good behaviour and it is the case of the second respondent that in violation of the said bond, he has committed offence punishable under Section 386 of IPC in Crime No.278 of 2014 registered by the Thanjavur West Police Station. A perusal of the impugned order would disclose that the first respondent proceeded on the presumption that he has violated the peace by contravening the terms of the bond dated 12.03.2014. It is to be pointed out at this juncture that the said bond has been executed for keeping up good behaviour and not for keeping up peace. Therefore, the reasons assigned by the first respondent to invoke Section 122(1)(b) of Cr.P.C., in the considered opinion of http://www.judis.nic.in 13 this Court, is not in order, as laid down by the decision of this Court, stated supra."
7. Therefore, the learned counsels would submit that the respective orders passed by the Executive Magistrate by invoking Section 122(1)(b) of Cr.P.C. suffer from jurisdictional error and hence, the same are liable to be set aside.
8. Per contra, Mr.Harihara Arun Somasankar, learned Government Advocate (Crl.Side) appearing for the State, would submit that if such interpretation of Section 122(1)(b) Cr.P.C. is to be accepted, then it would render Sections 108, 109 and 110 Cr.P.C. meaningless and that would not have been the intention of the Parliament which enacted the law. If such interpretation is to be accepted, it would result in legal vaccum in cases where bond executed for good behaviour is violated and the very purpose of getting such bond from habitual offenders/suspects would stand defeated.
9. The learned Government Advocate would draw the http://www.judis.nic.in 14 attention of this Court, particularly to Sub Section (e) of Section 110 Cr.P.C., which reads as under:
"(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace;"
10. According to the learned Government Advocate, Section 110 Cr.P.C. does not only speak about good behaviour, but also breach of peace. He would submit that this aspect was not considered specifically by the learned Judges of this Court in the above said Judgments. He would submit that the bond as executed under Section 110 Cr.P.C. includes all the Sub Clauses in a particular format which include Sub Clause (e) as extracted above, in which event, it is well within the right of the Executive Magistrate to invoke Section 122(1)(b) Cr.P.C. for violating the bond executed under Section 110 Cr.P.C. He would therefore implore this Court to uphold the power of the Executive Magistrate to invoke Section 122(1)(b) Cr.P.C. for violation of bond executed under http://www.judis.nic.in 15 Section 110 Cr.P.C.
11. The learned counsel would point out that although Section 122(1)(b) Cr.P.C. empowers the Executive Magistrate to order any person to be arrested and detained in prison for committing breach of bond executed by him for keeping peace, but the said provision does not deal with the breach of bond executed for good behaviour and there is no other provision in the Code of Criminal Procedure dealing with the said breach and hence, there is casus omissus and that such gap or omission in the statute the lacuna, can be supplied or corrected by Constitutional Courts by judicial construction. In this regard, the learned Government Advocate draws the attention of this Court to the observation made by Denning, L.J., as the learned Master of Rolls then was in Seaford Court Estates Ltd v. Asher (1949) 2 All E.R.155, which is extracted as under:
"When a defect appears a judge cannot http://www.judis.nic.in 16 simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases," (p. 164) Again in Magor & St. Mellons Rural District Council v, Newport Corporation, [1951] 2 All E.R. 1226, the learned Judge has said:
"We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis."
12. He brought to the notice of this Court that the above observation made by Lord Denning, J. has been referred to with approval by the Hon'ble Supreme Court of India in various cases, viz., State of Bihar versus A.K.Mukherjee http://www.judis.nic.in 17 (1975) 2 SR 894, State of Karnataka & another versus M/s.Hansa Corporation (1981) 1 SCR 833.
13. The observation of the Hon'ble Supreme Court in the latter decision (State of Karnataka & another Vs. M/s.Hansa Corporation), in paragraph 15, would bolster the conclusion to be reached by this Court in regard to purposive interpretation of the statute, which is extracted hereunder:
"15. There is always a presumption of constitutionality of a statute. If the language is rather not clear and precise as it ought to be, attempt of the Court is to ascertain the intention of the legislature and put that construction which would lean in favour of the constitutionality unless such construction is wholly untenable. However, where one has to look at a section not very well drafted but the object behind the legislation and the purpose of enacting the same is clearly discernible, the Court cannot hold its hand and blame the draftsman and chart an easy course of http://www.judis.nic.in 18 striking down the statute. In such a situation the Court should be guided by a creative approach to ascertain what was intended to be done by the legislature in enacting the legislation and so construe it as to give force and life to the intention of the legislature. This is not charting any hazardous course but is amply borne out by an observation worth reproducing in extenso in Seaford Court Estates Ltd. v. Asher. It reads as under:
"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly http://www.judis.nic.in 19 save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature. That was clearly laid down (3 Co. Rep. 7b) by the resolution of the judges (SIR ROGER MANWOOD, C.B., and the other barons of the Exchequer) in Heydon's case (1584) 3 Co. Rep. 7a, and it is the safest guide today. Good practical advice on the subject was given about the same time by PLOWDEN in his note (2 Plowd. 465) to Eyston v. Studd (1574), 2 Plowd. 463. Put into homely metaphor it is this: A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases".
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14. This Court bestowed upon itself its anxious consideration to the legal submissions made on behalf of either side.
15. As rightly contended by the learned Government Advocate appearing for the State, by giving a constricted meaning to Section 122(1)(b) Cr.P.C., it would only result in creating a legal vaccum in cases of violation of bond executed under Section 110 Cr.P.C., which virtually amount to rendering the provisions otiose or nugatory. Sub Clause (e) of Section 110 Cr.P.C. clearly deals with the offences involving a breach of peace and in such event, the scheme of Section 110 Cr.P.C. has to be cumulatively construed as one including keeping peace as provided under Section 107 Cr.P.C. http://www.judis.nic.in 21
16. This Court has also been informed during the course of arguments that the bond format is the same for Section 110 Cr.P.C. as a whole and it does not make any specific categorization in respect of Sub Clause provided under Section 110 Cr.P.C. It is all the more reason that Sub Clause
(e) has to be read as an integral part of Section 110 Cr.P.C. and in which event, the bond is executed not only for good behaviour, but also for keeping peace, in respect of habitual offenders.
17. It is also to be seen that Section 110 Cr.P.C. is different from Section 109 Cr.P.C. which deals with security for good behaviour from suspected persons whereas Section 110 deals with security for good behaviour from habitual offenders. Section 110 Cr.P.C. therefore, provides for more stringent categorization, which obviously includes breach of peace. Of-course, there is lacuna in the provisions of Criminal Procedure Code for violation of bond in respect of Section 108 or 109 Cr.P.C. where a similar provision like Sub Section (e) to http://www.judis.nic.in 22 Section 110 does not find a place, that is, for the Parliament or the Legislature in its wisdom to set right the lacuna as found in the Criminal Procedure Code.
18. However, as regards Section 110 Cr.P.C. is concerned, in view of the specific invocation of Sub Clause (e), this Court has no doubt that the power exercised by the Executive Magistrate under Section 122 (1)(b) Cr.P.C. is well within the frame work of said Section and the same cannot be assailed as being without jurisdiction. With due respect to the learned Judges who delivered the judgments/orders that such power is not vested with the Executive Magistrates under Section 122(1)(b) Cr.P.C., did not consider Sub Clause (e) of Section 110 Cr.P.C. or atleast such consideration is not reflected in the judgments/orders. Since two learned Judges of this Court have held that such power does not vest with the Executive Magistrate under Section 122 (1)(b) Cr.P.C. in respect of violation of bond executed under Section 110 Cr.P.C., but a specific statutory provision is available in the http://www.judis.nic.in 23 Code itself involving breach of peace (i.e.) Sub Clause (e) of Section 110 Cr.P.C., this Court is unable to persuade itself to the views expressed by the learned Judges as cited supra.
19. As regards the execution of bond for good behaviour under Section 108 and 109 Cr.P.C., the framers of law could not have intended the Sections, to loosely hang in the statutory hanger, as execution of bond entails enforcement of the same. May be it was an accidental omission, which can be supplemented by purposive interpretation of the statutory scheme as a whole. From the scheme of the Chapter under consideration, this Court could safely infer that there was no intentional omission by the Parliament to render the said provision impotent or ineffective and in such situation, the Courts can play a supplementary role in giving effect to otherwise the intention of the framers so as to give force and life to the intention of the legislature, as expressed by Lord Denning, J.
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20. In any event, due to difference of opinion in regard to invocation of power under Section 122(1)(b) Cr.P.C., in the fitness of things, this Court is of the view that the matter may be placed before the Hon'ble Chief Justice for referring the following issues before a Division or a larger Bench for authoritative pronouncement, namely,
(i) Whether the Executive Magistrate concerned can exercise his power under Section 122(1)(b) for violation of bond executed under Section 110 Cr.P.C.?"
and
(ii) Whether the Executive Magistrate concerned can exercise his power under Section 122(1)(b) for violation of bond executed for good behaviour under Sections 108 and 109 of Cr.P.C. by treating the order of the Magistrate passed under Section 117 Cr.P.C. which explicitly include good behaviour also, as one, by harmonious construction and interpretation of the provisions concerned in order to render purpose and effect to the scheme of Chapter VIII of Cr.P.C.?
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21. The other legal issue which was raised at the Bar is, whether the petitioners are entitled to prior notice before invoking the power under Section 122(1)(b) Cr.P.C. by the Executive Magistrate concerned?
22. The learned Government Advocate (Crl.side) appearing for the State, would submit that an elaborate enquiry is provided for before securing the bond from the petitioners under Section 117 Cr.P.C. and in case violation of the bond, i.e. FIR is registered against the offenders/suspects concerned, the Executive Magistrate invokes the power under Section 122(1)(b) of Cr.P.C.
23. According to the learned Government Advocate, before invoking the power under Section 122(1)(b) Cr.P.C. by the Executive Magistrate, no further opportunity to the offenders/suspects who violated the bond, would arise since such opportunity is of no use as that would be an useless http://www.judis.nic.in 26 formality. He would elaborately submit that once an FIR is registered against the persons who had executed the bond under Section 107, 108, 109 or 110 Cr.P.C. as the case may be, practically there was nothing left for the Executive Magistrate to consider any representation to be made by such persons on their behalf and it is not for the Executive Magistrate to decide the validity and correctness of the FIR and in case the persons aggrieved by the registration of the FIR, it is always open to the aggrieved persons to approach this Court by invoking Section 482 Cr.P.C. According to the learned Government Advocate, any opportunity to be given, must be meaningful and purposeful and in the instant case, where orders being passed under Section 122(1)(b) Cr.P.C., no such requirement is envisaged and even when such requirement is deduced from the scheme of the provision, what kind of enquiry or opportunity need be given to the aggrieved persons/accused. Ultimately the FIR registered against the persons who executed the bond is the proof by itself and its correctness cannot be questioned by the accused http://www.judis.nic.in 27 (offenders/suspects) before the Executive Magistrate even if an opportunity is afforded to him. In such event, the learned Government Advocate would submit that affording opportunity to the petitioners/accused does not serve any purpose. Further, the learned Government Advocate would submit that the provisions involved in respect of execution of bond, are special provisions, particularly, Section 122(1)(b) Cr.P.C. which deals with satisfaction of the Executive Magistrate concerned as to whether bond is violated or not. Nowhere the said Section contemplates issue of notice or conduct of enquiry before the action being taken.
24. The objection as raised by the State was vehemently resisted by the learned counsels appearing for the petitioners stating that in a catena decisions of this Court, it was specifically held that the accused (offenders/suspects) are entitled to notice of opportunity before an order being passed under Section 122(1)(b) Cr.P.C. According to the learned counsels appearing for the petitioners, right to be heard is http://www.judis.nic.in 28 inherent in every statutory scheme and more particularly if a person is going to be visited with an adverse order being sent to prison on the ground breach of bond.
25. According to the learned counsels appearing for the petitioners, even before regular criminal Court, due process has to be followed before someone is convicted of offences and sent to prison. While so, the Executive Magistrate who does not exercise judicial function, cannot directly send the persons to prison on the ground of violation of bond without giving him an opportunity for explaining his stand. A person who is ordered to be arrested and detained, is entitled to an opportunity of being heard without which, the power vested in the authority under Section 122 Cr.P.C. would be unbridled and without any safeguards against the misuse of legal machinery by the State concerned. Uniformly all the learned counsels would submit that such unbridled power would be violative of Article 21 of the Constitution of India and also contrary to various decisions of this Court rendered from time http://www.judis.nic.in 29 to time.
26. In this regard, in support of their contentions, the learned counsels rely upon the following decisions, viz.,
(i) Unreported decision in Crl.R.C.No.505 of 2017 dated 3.7.2017 (Selvam @ Selvaraj versus The Executive cum Deputy Commissioner of Police, (Law & Order, Crime and Traffic), Tiruppur City and another)
(ii) Unreported decision in Crl.R.C.No.365 of 2017 dated 21.09.2017 (Manikandaraja versus The Executive cum Deputy Commissioner of Police, Law & Order, Madurai City, Madurai and another).
(iii) 2016 SCC OnLine Mad 23460 (Balamurugan versus The Inspector of Police (Law and Order), Palayamkottai Police Station, Tirunelveli City and another) and
(iv) Unreported decision in Crl.M.P.No.13705 of 2018 in Crl.R.C.No.1172 of 2018 (Rajan versus The Executive http://www.judis.nic.in 30 Magistrate and Deputy Commissioner of Police, Washermentpet District and another)".
In all the above cases, this Court has held that notice/enquiry is a requirement before any order to be passed under Section 122(1)(b) by the Executive Magistrate.
27. This Court has given its anxious consideration to the rival submissions made by the learned counsels for the petitioners and the learned Government Advocate for State and perused entire materials available on record.
28. Section 122(1)(b) Cr.P.C. is extracted below once again for better understanding of the rival submissions.
"122.Imprisonment in default of security-
(1) (b).If any person after having executed a bond 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 http://www.judis.nic.in 31 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. "
29. Sub Clause (b) would say that it is incumbent upon the Executive Magistrate to record the grounds of such proof which means, that there must be an enquiry to be conducted by the Magistrate concerned and he has to record the reasons or grounds for such proof of violation of the bond by the accused. Though the registration of FIR itself may be a proof, yet the Magistrate concerned must be satisfied of such proof before passing any order under the said Section. However, to what extent, the opportunity has to be given to the offenders/suspects, cannot be exhaustively specified in anticipation of all possible situations. It depends upon case to http://www.judis.nic.in 32 case that Executive Magistrate has to be satisfied about the bona fides of any action by the State against the offenders concerned. It is not necessary that the Executive Magistrate required to conduct a detailed trial. As rightly contended by the learned Government Advocate for the State that it is not for the Executive Magistrate to go into the correctness of the validity of the FIR registered against the offenders/suspects, however, on the other hand, it is always open to the Executive Magistrate to find prima facie material as to the involvement of the offenders/suspects in the action initiated by the State and on such prima facie satisfaction, the Magistrate concerned can pass orders on the basis of factual matrix of each case.
30. This Court is of the considered view that the arguments advanced on behalf of the State that no notice need be given is quite audacious submission, forgetting for a moment that by action initiated under Section 122 Cr.P.C., a citizen of this Country can be arrested and detained until http://www.judis.nic.in 33 expiry of the bond period and in such event befalling any offender/suspect, he or she is not entitled to any notice to him/her. Such legal scenario cannot be allowed to exist in a constitutional State. Any State governed by the Constitution which provides a separate chapter enumerating the fundamental rights of the citizens, and such rights under no circumstances, can be infringed except under due process of law. A liberty of a citizen cannot be jeopardized at the free will of the Executive Magistrate concerned. Only when an opportunity is given to the offenders/suspects, which is the core principle of natural justice which was evolved over the years by the Constitutional Courts, namely, "audi alteram partem (no one shall be condemned unheard)", procedural fairness is best served.
31. The theory of useless formality advocated by the learned Government Advocate appearing for the State may appear to be attractive in a first blush, but if such submission is to be accepted, it will only do grave violence to the http://www.judis.nic.in 34 established principles of natural justice and besmirch the decision making process of the statutory authority as against its citizens. Affording opportunity before any adverse order is passed is the hallmark of principle of natural justice and such principle is embodied and enshrined under Article 21 of the Constitution of India. Therefore, this Court is of the view that the offenders/suspects are entitled to notice and enquiry before a final decision is taken by the Executive Magistrate under Section 122(1)(b) Cr.P.C.
32. Last but not the least, this Court records its appreciation of illuminative submissions made by all the learned counsels on the above issues and particularly, learned Government Advocate, Sri Harihara Arun Somasankar for his out of the box approach and perspective.
33. The Registry is directed to list all the matters on 03.12.2018 for hearing on merits.
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34. The Registry is also directed to place the matter before the Hon'ble The Chief Justice in regard to the constitution of a larger Bench for deciding the issue as framed in paragraph 19 of the order.
24.11.2018 suk Index: Yes/No Internet: Yes/No Note: Issue Order copy by 30.11.2018 http://www.judis.nic.in 36 V.PARTHIBAN, J.
suk Crl.O.P.No.982 of 2018 etc. 24.11.2018 http://www.judis.nic.in