Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 388 OF 2022
(ARISING OUT OF SLP (CRL.) NO. 8438 OF 2021)
DEVADASSAN …APPELLANT
Versus
THE SECOND CLASS EXECUTIVE MAGISTRATE,
RAMANATHAPURAM & ORS. ...RESPONDENT(S)
JUDGMENT
J.K. Maheshwari, J.
Leave granted.
2. Assailing the order dated 22.7.2021 passed in Criminal
RC(MD) No. 379 of 2021 and Crl. MP (MD) No. 3829 of 2021 by
the Madras High Court, Madurai Bench, confirming the order
dated 13.5.2021 of the respondent No. 1 in MC No. 95 of 2021
(A3), the present appeal has been filed by the appellant.
3. The facts in brief are, the 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
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2022.03.16
15:47:43 IST
Reason:
Section 122(1)(b) of the Code of Criminal Procedure (in short
“Cr.P.C.”). The orders impugned indicate that the appellant was
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indulged in criminal activities, however, the respondent No. 1
after notice and affording opportunity, passed order on
24.2.2021 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 as Crime No. 149 of 2021 under Sections
147/148/342/302 read with 109/120(B) IPC. The respondent
No. 1 vide order dated 13.5.2021 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.
4. Shri A. Velan, 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. The High Court of
Delhi in the case of Aldanish vs. State of NCT of Delhi 2018
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SCC online Del 12207 issued the guidelines to impart training to
these officers. Reliance has also been placed on the judgment of
Madras High Court in the case of
Devi vs. Executive
Magistrate (Mad HC) 2020 SCC online Mad 2706, wherein the
High Court taking a different view from the previous judgment
directed to place the matter before Hon’ble the Chief Justice for
constituting the Division Bench to hear the similar issue.
Learned counsel has also placed reliance on a judgment of this
Court in Prem Chand vs. Union of India (1981) 1 SCC 639
specifying the manner, in which the police personnel must act
upon, but the personal liberty cannot be put into peril on their
mercy. 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.
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5. 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 on 7.5.2021. 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. The competent authority affording opportunity
to the appellant, has rightly passed the order on 13.5.2021 on
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establishing violation of the terms of the bond executed on
24.2.2021 by the appellant. 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.
6. After hearing learned counsel for the parties and on
perusal of record, it appears that from 2012 to January, 2021,
eight criminal cases were registered against the appellant,
including of simple and grievous hurt, theft and also under the
Arms Act. After the report received from the respondent No. 2,
a show cause notice was issued to the appellant and enquiry
was conducted by respondent No. 1. In furtherance thereto, his
statement was recorded and the response had also been taken.
The respondent No. 1 recorded the satisfaction that the
appellant might cause breach of peace in the locality, however
directed him to furnish a bond to the sum of Rs. 50,000 without
surety for a period of one year under Section 117 Cr.P.C.,
failing which he may serve the imprisonment under Section
122(1)(a) Cr. P.C. or in case of breach of conditions, recourse of
Section 122(1)(b) Cr.P.C. may be taken. The contents of the
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bond executed by the appellant are relevant hence reproduced
as under:
“MC No. 95/2021
ORDER MADE U/S 117 CR.P.C. READ WITH 110(E)
CR.P.C.
nd
This case was initiated in the court of 2 Class
Magistrate and Tahsildar, Ramanathapuram on the
basis of case registered in Uchipuli Police Station. This
person was produced before this Court on 24.2.2021.
Enquiry was conducted in the court and the provisions
mentioned in show cause notice issued was explained to
DEVADHASAN 28/21, S/O DEIVENTHIRAN,
MARAVETTIVALASAI, in detail statement and
arguments of the parties were taken.
Considering all these facts and the information
received from inquiry, this Court has arrived at the
conclusion at the person Name Devadhasan 28/21, s/o
DEIVENTHIRAN is likely to create Breach of Peace in the
locality and therefore shall be bound u/s 117 Cr.P.C. by
using a bond for Rs. 50,000/ without sureties, for a
period of one year from.
Thus, this Court of Second Class Ex. Magistrate
and Tahsildar, Ramanathapuram hereby ordered to
execute a Bond for Rs. 50000/ without sureties, for a
period of 1 year from 24.2.2021 failing which he shall
serve imprisonment for the above mentioned u/s 122(1)
(a) in case of breach conditions during the period of
bond the individual state be imprisonment for the
remaining period u/s 122 (1)(b).
Sd/
Second Class Magistrate
& Tahsildar
Ramanathapuram”
7. After execution of bond, on 31.3.2021 Crime No. 141 of
2021 was registered joining the appellant as coaccused for the
offences under Sections 147/148/342/302 r/w 109/120(B) IPC
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at P.S. Uchipuli, Ramanathapuram and breached the terms and
conditions of the bond. A show cause notice was issued asking
the response and also sought appearance of appellant before
the respondent No. 1 on 7.5.2021. He submitted his explanation
and his statement was recorded. The respondent No. 1 affording
opportunity passed the order on 13.5.2021 holding the
appellant guilty for violation of the terms and conditions of the
bond and punished under Section 122(1)(b) Cr.P.C. In
pursuance of the order, he is arrested and sent to prison. 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
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from suspected persons and habitual offenders, powers under
Sections 109 and 110 Cr.P.C. have been conferred upon the
Executive Magistrate. 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.
Therefore, the Legislature introduced the said Chapter conferring
powers on the authorities to take action for violation of peace
and tranquility in public order by the citizens of the locality,
otherwise, by following the procedure as prescribed, the action
may be taken by the competent authority.
8. Learned counsel for the appellant has heavily relied
upon the directions issued by the Delhi High Court as well as
Madras High Court in the cases of Aldanish & Devi (supra)
emphasizing in general that the administrative officers do not
follow the procedure, so prescribed and also relied upon the
judgment of (supra) emphasizing the
Gopalanachari
importance of Article 21 of the Constitution of India affecting
personal liberty of the citizens. But, 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
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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 on 24.2.2021 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 bond executed by the
appellant has not been questioned. In fact, the subsequent
action of passing the order dated 13.5.2021 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. In the facts, the argument advanced by
the learned counsel for the appellant cannot be countenanced.
9. In view of the discussion made hereinabove, we are of the
considered view that the orders passed by the High Court and
respondent No. 1 do not call for any interference. Therefore, this
appeal is bereft of any merit, hence dismissed.
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………………………….J.
[ INDIRA BANERJEE ]
....………………………J.
[ J.K. MAHESHWARI ]
NEW DELHI;
MARCH 9, 2022.
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