When can detention orders under Section 122 (1)(b), CrPC be passed? Larger Bench of Madras HC to decide

When can detention orders under Section 122 (1)(b), CrPC be passed? Larger Bench of Madras HC to decide

The Madras High Court was recently called upon to deliberate on the limits of an Executive Magistrate’s power to order the detention or arrest of those who violate bonds under the Code of Criminal Procedure (CrPC), 1973.

Finding that his conclusions contradicted those rendered by two earlier single judges, Justice V Parthiban has referred the following questions for consideration by a larger bench, i.e.

  • 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.?
  • 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 CrPC?

The petitioners before the High Court had all executed bonds under Section 110 of the CrPC. Section 110 deals with the execution of bond for good behaviour of habitual offenders.

When an FIR was registered against them, the Executive Magistrate ordered their detention for the violation of their bonds, invoking Section 122 (1) (b) of the CrPC.

Section 122 deals with “imprisonment in default of security“. Clause (1) (b) allows Executive Magistrates to direct the detention of a person if he breaches a bond executed to keep the peace. The provision reads as follows:

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.

As this provision only mentions bonds executed to keep the peace, the petitioners contended that the detention powers under Section 122 (1) (b) would only be applicable with respect to persons who have executed bonds under Section 107 of the CrPC. Section 107 specifically deals with the execution of bonds for keeping peace, from those who are likely to commit a breach of peace.

The petitioners found support for their contentions in two earlier cases i.e. Malar @ Malarkodi v. The Sub Divisional Magistrate cum Revenue Divisional Officer, Udayarpalayam taluk, Perambalur District and Karthigayan @ Pallukarthik v. The Sub Divisional Magistrate cum Revenue Divisional Officer.

However, Justice Parthiban found merit in the contesting arguments made by government advocate Harihara Arun Somasankar, that if the detention powers under Section 122 (1) (b) are not invoked for the breach of bonds executed under Section 110, the provision would be rendered futile.

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.

Further, Justice Parthiban also noted that Section 110 also covers habitual offenders who breach the peace. In particular, Section 110 (e) refers to a person who habitually commits, or attempts to commit, or abets the commission of offences involving a breach of the peace. The judge opined that perhaps this clause was not considered in the aforementioned earlier decisions. In this backdrop, Justice Parthiban concluded,

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...

… 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.”

However, since there were coordinate Benches reflecting a contrary view, the matter was placed before the Chief Justice for reference to an appropriate larger bench for an authoritative pronouncement.

Additionally, the judge has also raised a query whether breaches of bonds executed under Sections 108 (for good behaviour from persons distributing seditious material) and 109 (for good behaviour from suspected persons) of the CrPC would also allow the invocation of detention powers under Section 122 (1) (b).

This was in view of the concern that both provisions would also be rendered ineffective, if Section 122 (1) (b) is not applied upon the breach of bonds executed under them.

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.

Echoing the views of the English judge, Lord Denning (as approved by the Supreme Court), the judge opined that if at all there is such an omission, the Court ought to play a supplementary role and give effect to the provision in accordance with the intention of the lawmakers.

Prior Notice must be given before passing detention orders under Section 122 (1) (b)

Before parting with the matter, the Court also reiterated that prior notice must be given before any detention order is passed under Section 122 (1) (b) of the CrPC.

The State had termed such notice a “useless formality”, arguing that it would not serve any purpose after the elaborate procedure involved in executing a bond under the CrPC, and given that any FIR (registered on the breach of the bond) would be sufficient proof of itself. It was contended that the CrPC does not contemplate sending notices or conducting further inquiries in such matters.

However, the Court disagreed, finding that if such notice is bypassed altogether, it would amount to a violation of natural justice principles.

…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…

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 established principles of natural justice and besmirch the decision making process of the statutory authority as against its citizens…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.

However, it was noted that this does not mean that the Executive Magistrate is required to conduct a detailed trial. The Court opined that the extent to which the opportunity to be heard should be given to offenders/suspects cannot be exhaustively defined.

Nevertheless, the Executive Magistrate is expected to discern the bona fides of the State in proceeding against the person on a case to case basis, before passing any detention orders against him under Section 122, CrPC.

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