THE HONOURABLE SRI JUSTICE D.RAMESH CRIMINAL REVISION CASE NO.718 of 2021

ORDER:-

The present criminal revision case under Section 397 read with 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is filed questioning the proceedings, dated 05.08.2021 in M.C.No.67 of 2021 and the Endorsement, dated 09.09.2021 in R.C.B.No.462 of 2021, whereby the petitioner was forcibly made to execute bond for good behavior and asked to pay penalty of Rs.20,000/- for violating the same, respectively.

2. The brief facts of the case are that initially Police have intentionally registered crime No.56 of 2021 on the ground that he was selling liquor and on 05.08.2021 he was produced before Manda Executive Magistrate, Tada and he was forcibly made to execute a bond for good behavior vide proceedings in M.C.No.67 of 2021. Again on 06.08.2021, Police have intentionally registered another crime on the same ground and the Tahsildar, while rejecting the explanation submitted by the petitioner, had issued endorsement directing the petitioner to pay penalty of Rs.20,000/ for violating the bond. Aggrieved by the same, petitioner is before this Court.

3. Heard learned counsel for the petitioner and learned Assistant Public Prosecutor for the respondents.

4. Learned counsel for the petitioner submits that the proceedings impugned were issued by Mandal Executive Magistrate, whereas the offence alleged to have been committed by the petitioner falls under Section34(a)(i) of the Andhra Pradesh Excise Act, as such it will not fall under Section 110 of Cr.P.C. He further submitted that as per Section 117 of Cr.P.C. an enquiry has to be conducted and if satisfied then only order under Section 110 of Cr.P.C. is to be passed whereas in the present case proceedings are passed without any such enquiry being conducted. Hence, the proceedings impugned are required to be set aside.

5. Learned Assistant Public Prosecutor has submitted that though the alleged offence is under Section 34(a)(i) of the Excise Act and is not attracted under Section 110 of Cr.P.C., the fact remains is that the petitioner is habitual offender and even after executing a bond for good behavior, he has committed the same offence.

6. It is appropriate to have a look at Sections 110 Cr.P.C. and Section 117 of Cr.P.C., which read thus:

7. Security for good behaviour from 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 or 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 and Family Pension Fund Act, 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 or (52 of 1962 );

(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.

7. Section 117 of Cr.P.C.:

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 with 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;

(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.

8. Thus, from the above it is clear that an enquiry has to be conducted before passing an order under Section 110 of Cr.P.C., but a perusal of the impugned proceedings does not disclose the said fact that enquiry was conducted before passing the said proceedings against the petitioner. Therefore, the proceedings under revision are liable to be set aside.

9. In view of the above, this criminal revision case is disposed and the proceedings dated 05.08.2021 passed in M.C.No.67 of 2021 and the Endorsement, dated 09.09.2021 in R.C.B.No.462 of 2021 are hereby set aside.

As a sequel, all the pending miscellaneous applications shall stand closed.

______________________ JUSTICE D.RAMESH

Date: 07.01.2022 ikn

THE HONOURABLE SRI JUSTICE D.RAMESH

CRIMINAL REVISION CASE NO.718 of 2021

07.01.2022

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