‘Action against offenders can’t be taken without hearing them’

Justice V Parthiban while dealing with a plea that in case of bond executed under Section 110 Cr.P.C, the executive magistrate does not have any power to invoke Section 122 Cr.P.C, and sentence the petitioners to be arrested and detained in prison until expiry of the bond period, said “Affording opportunity before any adverse order is passed is the hallmark of principle of natural justice and such principle is embodied and enshrined under Article 21 of the Constitution of India.”

The Judge added, “Therefore, this court is of the view that the offenders/suspected 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, the Judge on noting that the court has no doubt that the power exercised by the executive magistrate under Section 122(1)(b) Cr.P.C is well within the framework of the said section and the same cannot be assailed as being without jurisdiction, directed the registry to place the matter before the Chief Justice for referring the issue either before a division bench or a larger bench for authoritative pronouncement.

The aspects Justice Parthiban raised included 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.

As per the case, petitioners have executed bonds under Section 110 Cr.P.C for good behaviour and in view of FIR being registered against them during the period of bond, the executive magistrate concerned invoked section 122(1)(b) Cr.P.C and sentenced the petitioners to be arrested and detained in prison until expiry of the bond period.

It was contended that such power is not vested in the above provision of the CR.P.C and in the absence of any specific provision, arresting and detaining the petitioners for violation of execution of bond for good behaviour under Section 110 Cr.P.C is unconstitutional.