Section 122 CrPC - Executive Magistrate Can Order Detention Of Person For Breach Of Bond Given For Good Behaviour : Supreme Court

While upholding an order of detention passed by an Executive Magistrate, the Supreme Court has explained the scheme of Chapter VII of the Code of Criminal Procedure which contains provisions relating to bond for keeping peace and good behaviour and also the consequences flowing from the breach of such bond.

The Court explained the provisions as follows :

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.

On violation, recourse, specified under Section 122 Cr.P.C. is permissible.

A bench comprising Justice Indira Banerjee and Justice J K Maheshwari observed :

"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."

The  Court further observed that it is a trite law that by following the procedure established by law, the personal liberty of the citizens can be dealt with.

The bench was considering a Special Leave Petition assailing Madras High Court's order of upholding the order passed by the Second Class Executive Magistrate.

The Second Class Executive Magistrate had found the appellant guilty for breach of the conditions of bond which was executed for maintaining good behavior and peace for a period of 1 year and punished him by exercising powers u/s 122(1)(b) of the CrPC, 1973.

While dismissing the appeal in Devadassan v. The Second Class Executive Magistrate, Ramanathapuram & Ors, the bench said,

"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 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."

Factual Background

The appellant ("Devadassan") was indulged in criminal activities but the Second Class Executive Magistrate after notice and affording opportunity passed an order u/s 117 r/w Section 110(e) CrPC, 1973. In compliance the appellant executed a bond for maintaining good behavior 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.

On execution of bond, he was found involved in an offence of commission of murder and an crime was registered against him u/s 147/148/342/302 r/w 109/120(B) IPC. Thus the Second Class Executive Magistrate found him guilty for breach of bond, ordered his arrest and sent him to custody. Aggrieved, the appellant approached the High Court. The High Court however upheld the order passed by the Magistrate.

Submission Of Counsel

Appearing for the appellant, Advocate A. Lakshminarayanan submitted that the orders were passed without following the procedure prescribed and afford reasonable opportunity.

Reference was also made to the Delhi High Court judgement in Aldanish vs. State of NCT of Delhi 2018 SCC online Del 12207, Madras High Court's judgement of Devi vs. Executive Magistrate (Mad HC) 2020 SCC online Mad 2706 and Top Court's judgements in Prem Chand vs. Union of India (1981) 1 SCC 639 and Gopalanachari vs. State of Kerala 1980 (Supp) SCC 649, to highlight that Courts have expressed concerns about Executive Magistrate's exercising power in a cavalier manner.

Appearing for the State, Advocate Dr. Joseph Aristotle S submitted that eight criminal cases were pending against the appellant, therefore a bond of good behaviour was taken while exercising power u/s 117 CrPC asking security. He further submitted that the impugned order was passed rightly as the order was passed rightly by exercising powers u/s 122(1)(b) on violation of the bond. It was also the counsel's contention that the Magistrate had followed the procedure contemplated.

Supreme Court's Analysis

With regards to the judgements referred by the appellant's counsel such as Aldanish vs. State of NCT of Delhi 2018 SCC online Del 12207, Devi vs. Executive Magistrate (Mad HC) 2020 SCC online Mad 2706 and Gopalanachari vs. State of Kerala 1980 (Supp) SCC 649, the bench said,

"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 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."

Case Title: Devadassan v. The Second Class Executive Magistrate, Ramanathapuram & Ors.| Criminal Appeal No. 388 of 2022

Coram: Justices Indira Banerjee and JK Maheshwari

Citation : 2022 LiveLaw (SC) 260

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