Madhya Pradesh High Court
Jitendra vs The State Of Madhya Pradesh on 17 January, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S. Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:1291
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S. KALGAONKAR
ON THE 17th OF JANUARY, 2025
MISC. CRIMINAL CASE No.24982 of 2024
JITENDRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Manish Yadav - Advocate for the petitioner.
Shri Madhusudan Yadav - Govt. Advocate for the respondent/State.
Reserved on : 19.09.2024
Pronounced on : 17.01.2025
ORDER
This petition having been heard and reserved for orders, coming on
for pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced the
following:
This petition under Section 482 of Cr.P.C has been filed feeling
aggrieved by the order dated 30.05.2024 passed by XXII Additional Sessions
Judge, Distt. Indore whereby the order dated 15.04.2024 passed by the Special
Executive Magistrate, Zone 3, Indore(Urban) in case no. 3/2024 was affirmed.
2. The exposition of the facts, giving rise to the present petition, is as under
:-
2
NEUTRAL CITATION NO. 2025:MPHC-IND:1291
The SHO, P.S. Sanyogitaganj Distt. Indore has submitted a complaint
(istgasha) No. 75/2023 u/S 110 of Cr.P.C. before the Special Executive
Magistrate, Zone 3, Indore (Urban). The Special Executive Magistrate vide
order dated 26.07.2023 passed in Case No. 379/2023 directed the
petitioner/respondent – Jitendra to execute a bond for a sum of Rs. 50,000/- to
keep good behaviour for a period of three years u/S 117 of Cr.P.C. Thereafter,
another complaint no. 4 of 2024 was filed by the SHO, P.S. Sanyogitaganj,
Distt. Indore on 07.03.2024 before the Special Executive Magistrate u/S 122 of
Cr.P.C., inter-alia alleging that the petitioner – Jitendra has violated the
condition of bond by committing offence punishable u/Ss 324, 323, 294, 506
& 34 of IPC registered at Crime No. 100/2024 at P.S. Sanyogitaganj. The
Special Executive Magistrate conducted an inquiry. The statement of
complainant – Ranjeet, Investigation Officer/Sub Inspector Seema Muvel,
Sub-Inspector Brijendra Pathak and Head Constable Manoj Malviya were
recorded. On completion of inquiry, learned Special Executive Magistrate vide
impugned order dated 15.04.2024 directed detention in prison of the petitioner
for remaining period of the bond. The order dated 15.04.2024 passed by
Special Executive Magistrate, Distt. Indore (Urban) was assailed in Cr. R. No.
255/2024. The XXII Additional Sessions Judge, Indore vide order dated
30.05.2024 affirmed the order of Executive Magistrate and dismissed the
revision petition.
The aforestated orders are assailed in this miscellaneous petition on the
following grounds:
1. The petitioner/respondent was not accorded adequate opportunity to
adduce defence evidence.
2. The Executive Magistrate and the Revisional Court did not consider that
there was no violation of the condition of bond.
3
NEUTRAL CITATION NO. 2025:MPHC-IND:1291
3. Ranjeet had assaulted Sanjay, brother of petitioner, on 23.03.2024.
Sanjay had lodged FIR against Ranjeet, which was registered at Crime
No. 99/2024 P.S. Sanyogitaganj, Distt. Indore. The present FIR is a
counter blast to prosecution against the complainant.
4. The petitioner was not present at the time of alleged incident.
5. The Executive Magistrate failed to consider the provisions of Sec
122(1)(b) of Cr.P.C. The provisions are not attracted in the matter.
On these grounds, it is prayed that both the impugned orders be set
aside.
5. Learned counsel for the petitioner in addition to the grounds mentioned
in the petition, referring to the order dated 22.05.2024 passed in M.Cr.C. No.
16967/2024 by co-ordinate Bench of this Court, submits that the petitioner was
directed to execute bond for keeping good behaviour u/S 110 of Cr.P.C.,
therefore, the provisions of Section 122(1)(b) of Cr.P.C. cannot be invoked
against the petitioner.
6. Per contra, learned counsel for the State submits that the bond executed
u/S 117 of Cr.P.C., encompasses the bond for keeping peace as well as for
keeping good behaviour, therefore, violation of the condition of bond for good
behaviour entails an action u/S 122(1)(b) of Cr.P.C.
7. Heard both the parties and perused the record.
8. The relevant provision of the Cr.P.C which are attracted in the present
case are as under :-
“Section 107 :-
“107. Security for keeping the peace in other cases.
(1) When an Executive Magistrate receives information that any person is
4NEUTRAL CITATION NO. 2025:MPHC-IND:1291
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)——-
Section 110. Security for good behaviour for habitual offenders.- When
an Executive Magistrate receives information that there is within his local
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 of
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 :-
(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 75[and Family Pension Fund] Act,
1952 (19 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 (52 of 1962);
(h) the Foreigners Act,1946 (31 of 1946); or ]
(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.
Section 117 :- Order to give security.-
If, upon such inquiry, it is proved that it is necessary for keeping the peace
or maintaining good behaviour, as the case may be, that the person in
respect of whom the inquiry is made should execute a bond, with or without
sureties, the Magistrate shall make an order accordingly;
Provided that–
(a) no person shall be ordered to give security of a nature different
from, or of an amount larger than, or for a period longer than, that
specified in the order made under section 111;
5
NEUTRAL CITATION NO. 2025:MPHC-IND:1291
(b) the amount of every bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive;
(c) when the person in respect of whom the inquiry is made is a minor,
the bond shall be executed only by his sureties.
Section 122 :- Imprisonment in default of security
(1) (a)———-
(b) If any person after having executed a bond with or 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.”
(3) —————-
9. Thus, Section 107 of the Cr.P.C. provides for security for keeping peace
in case of likelihood of breach of peace or disturbance of the public tranquility
and Section 110 of the Cr.P.C. provides for security for good behavior from
habitual offenders. Apparently, the parameters for requiring a person to
execute bond for keeping the peace and the bond for good behavior are
different. The provisions under Section 107 and 110 of the Cr.P.C. are
mutually exclusive and cannot be read into each other.
10. Section 117 of the Cr.P.C. provides for order to execute bond with or
without sureties for keeping the peace OR maintaining good behavior, as
the case may be. However, Section 122(1)(b) of Cr.P.C. only provides for
detention in prison until expiry of the period of bond for keeping the peace.
The provision conspicuously omits violation of bond for good behavior
provided u/S 110 Cr.P.C.
11. Considering, these aspect of the matter, the High Court of Madras in the
case of Malar alias Malarkodi Vs. The Sub-Divional Magistrate – cum
Revenue Divisional Officer, Order dated 31.10.2002 passed in Crl.R.C.No.
1791/2002 observed as under:
6
NEUTRAL CITATION NO. 2025:MPHC-IND:1291
“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 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 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(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 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 SubDivisional Magistrates concerned have to
be quashed.”
12. Further, in the case of Devi Vs. The Executive Magistrate and another,
Order dated 25.09.2020 in Crl.R.C.No.78 of 2020, another Bench of the High
Court of Madras dealt with the consequence of violation of the bond for
7
NEUTRAL CITATION NO. 2025:MPHC-IND:1291
maintaining good behavior in contra-distinction to violation of the bond for
keeping peace and held as follows:-
―36. Unlike the expression ―breach of the peace‖, where ―subjectivity‖ is the
basis, good behaviour rests on ―objectivity‖. All the clauses of Section 110
Cr.P.C., except clause (g), underpin the existence of a previous case. In fact, they
use the expression ―habit / habitual‖ which is conspicuously missing in clause
(g). Such a requirement is not there under Section 107 Cr.P.C. Section 110(e)
Cr.P.C. which contemplates offences committed habitually involving breach of
the peace cannot be used as a window to enter into Section 122(1)(b) Cr.P.C., for
the simple reason that, Section 122 (1) (b) Cr.P.C. is predicated on the nature of
the bond, viz., bond for breach of the peace and not on clause (e) of Section 110
Cr.P.C. Thus, textually and contextually, a bond for good behaviour can, by no
stretch of imagination, be telescoped into Section 122(1)(b) Cr.P.C.
37. In Anoop Singh Vs. State of Punjab, a learned Single judge of the Punjab and
Haryana High Court has held that imprisonment under Section 122(1) (b)
Cr.P.C., was not contemplated for the breach of a good behaviour bond under
Section 110 Cr.P.C.
38. There is yet another reason as to why the Parliament did not include breach
of a good behaviour bond in Section 122(1)(b) Cr.P.C., Section 120 Cr.P.C.,
states what amounts to breach of a bond. It states that commission or attempt to
commit or the abetment of any offence punishable with imprisonment, would
amount to breach of a bond for good behaviour. This means that the person will
have to face a regular trial in a criminal Court for the act which gave rise to the
breach of the bond for good behaviour. If a good behaviour bond is included in
Section 122(1)(b) Cr.P.C., there is every likelihood of the person being
imprisoned twice, viz., one for breach of the bond and the other for the
commission or the attempt to commit the substantive offence. Supposing such a
person is imprisoned for the breach of bond, but is acquitted for the criminal act
which gave rise to the breach of bond, the imprisonment suffered by him cannot
be compensated. That is why, the Legislature had thought it fit to mulct a person
who commits breach of good behaviour bond only with civil liability, viz.,
forfeiture of the bond amount and not imprisonment.‖
13. This Court is in complete agreement with the reasons assigned in
aforestated orders. The Court is of the considered opinion that the legislature in
its wisdom has deliberately excluded violation of the bond for maintaining
good behavior in Section 122(1)(b) of Cr.P.C., which provides for detention in
prison till expiry of the period of bond, in case of violation of the bond for
keeping peace.
14. In view of the aforestated propositions of law, the facts of the matter in
hand are examined.
8
NEUTRAL CITATION NO. 2025:MPHC-IND:1291
15. Admittedly, the SHO P.S. Sanyogitaganj Distt. Indore initiated the
proceedings against the petitioner by filing Complaint No. 75/2023 u/S 110 of
Cr.P.C. Learned Executive Magistrate passed the order u/S 117 of Cr.P.C. vide
order dated 26.07.2023 in Case No. 379/2023 instituted on the complaint u/S
110 of Cr.P.C. and directed the petitioner to execute the bond for maintaining
good behavior for the period of 03 years. The bond executed by the petitioner
dated 26.07.2023 states that the petitioner abides to maintain good behavior for
the period of 03 years. Entire proceeding does not relate to bond for keeping
peace u/S 107 of Cr.P.C. Therefore, the penal provision of Section 122(1)(b) of
Cr.P.C. could not have been invoked by the learned Executive Magistrate for
violation of bond for maintaining good behavior.
16. Learned Executive Magistrate committed an error of law in directing
detention in prison of the petitioner for remaining period of the bond for
maintaining good behavior. Learned Sessions Judge did not consider this
important aspect of the matter while deciding the revision petition. Thus, the
proceedings of the Executive Magistrate and the learned revisional Court suffer
from apparent impropriety and illegality.
17. In view of the above discussion, interference by invoking inherent
jurisdiction of this Court is needed for the ends of justice.
18. Consequently, the petition u/S 482 Cr.P.C. is allowed and in exercise of
inherent jurisdiction, the order dated 15.04.2024 passed in Case No. 3/2024 by
Special Executive Magistrate, Indore (Urban) and the order dated 30.05.2024
passed in Cr.R. No. 235/2024 by the learned XXII Additional Sessions Judge,
Distt. Indore are set aside. The petitioner be released forthwith.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
SEHAR
Digitally signed by SEHAR HASEEN
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
INDORE, ou=BENCH AT INDORE,
2.5.4.20=900ec6fc757798eaeb3df7
HASEE
a32860bd3298415a4d1c2d914362
13f2568c8f27da,
postalCode=452001, st=Madhya
Pradesh,
serialNumber=E7DBBA955B262C0
N
4B8413251CE7FB6F0B7DBA610C5
7F1559C08BF6C6F5DD40D4,
cn=SEHAR HASEEN
Date: 2025.01.18 13:39:28 +05’30’
[ad_1]
Source link