Devadassan v. The Second Class Executive Magistrate, Ramanathapuram & Ors., SC 2022

FACTSThe respondent No. 1 and the High Court found the appellant guilty for breach of the conditions of bond and punished him in exercise of power under Section 122(1)(b) of the Code of Criminal Procedure . The orders impugned indicate that the appellant was indulged in criminal activities, however, the respondent No. 1 after notice and affording opportunity, passed order under Section 117 read with Section 110(e) Cr.P.C..

In compliance, the appellant executed a bond to maintain good behaviour and peace for a period of one year and also undertook to pay Rs. 50,000/­ as penalty to the Government in case of breach or else face the proceedings under Section 122(1)(b) Cr.P.C.

Even on execution of bond, he was found involved in an offence of commission of murder, registered by Uchipuli Police Station under Sections 147/148/342/302 read with 109/120(B) IPC.

The respondent No. 1 found him guilty for breach of bond however, ordered his arrest and sent him to the custody. The said order has been affirmed by the High Court, however, this appeal has been filed challenging both the orders.

CAUSE – Order passed by the Madras High Court, Madurai Bench, confirming the order of the respondent No. 1.

ARGUMENTSShri A. Lakshminarayanan, learned counsel appearing for the appellant has strenuously urged that the orders passed by the administrative authorities usually do not follow the procedure prescribed and afford reasonable opportunity. Further, placing reliance on the judgment of this Court in the case of Gopalanachari vs. State of Kerala 1980 (Supp) SCC 649, learned counsel emphasized the importance of Article 21 of the Constitution of India and its significance. In view of the said submissions, imposition of conditions in the bond without due enquiry and affording reasonable opportunity is wholly unjustified, and appellant cannot be held guilty and may be sent to the custody unceremoniously.

On the other hand, Dr. Joseph Aristotle S., learned counsel representing the respondents contends that eight criminal cases were pending against the appellant, therefore bond of good behaviour was taken in exercise of the power under Section 117 Cr.P.C. asking security. On violation of the said bond, by virtue of the powers conferred under Section 122(1)(b) Cr.P.C., the order impugned has rightly been passed. It is urged that Chapter VIII of Cr.P.C. confer powers to the Executive Magistrate for taking bond to keep the peace and security for good behaviour from the suspected persons. Appellant gave the undertaking on breach of conditions of bond due to which he may be dealt with as per Section 122(1)(b) Cr.P.C. Later, appellant was found involved in an offence of commission of murder, however a show cause notice was issued fixing date for appearance. In the reply filed by appellant, execution of the bond has not been disputed and making him accused in a murder case has also not been denied, except to controvert that without proving guilt, he may not be responsible for the said act. It is urged procedure as contemplated has been followed by the respondents, however, interference was not called by the High Court, to which interference under Article 136 of Constitution is not warranted.

ISSUE – Whether recourse to section 122 permissible in case of violation of order passed under section 111 & 117 Cr.P.C.

DECISION – It is to observe that Chapter VIII of Cr.P.C. confer powers to the Executive Magistrate to take bond for maintaining security and for keeping the peace and good behaviour by the citizens. As per Section 107 Cr.P.C, on receiving the information, that any person is likely to commit a breach of peace or disturb the public tranquility or to do any wrongful act, the Executive Magistrate may have power to show cause on violation of the terms of the bond so executed for maintaining peace. As per Section 108 of Cr.P.C., similar power has been given for maintaining the security for good behaviour from persons disseminating seditious matters. Similarly, to take security for good behaviour from suspected persons and habitual offenders, powers under Sections 109 and 110 Cr.P.C. have been conferred upon the Executive Magistrate.

In the facts of the case at hand, nothing has been brought on record that how and in what manner the procedure contemplated under Chapter VIII of Cr.P.C. has not been followed. It is a trite law that by following the procedure established by law, the personal liberty of the citizens can be dealt with. Looking to the facts of this case, the bond executed by the appellant under Section 110 read with Section 117 Cr.P.C. has been violated by him on account of his involvement in a criminal case, registered subsequently. In the present case, the order was passed under Sections 111 and 117 Cr.P.C. for security. On violation, recourse, specified under Section 122 Cr.P.C. is permissible.

In the present case, the bond executed by the appellant has not been questioned. In fact, the subsequent action of passing the order of sending him to the custody due to violation of the bond as per the mandate of law has been assailed. As per the discussion made hereinabove, in our considered opinion, the order passed by respondent No. 1 is after following the procedure, so prescribed and affording due opportunity to the appellant. The High Court has rightly affirmed the said order. Thus the Court held that the orders passed by the High Court and respondent No. 1 do not call for any interference.

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