CHENNAI: A single judge of the Madras High Court has referred to a larger bench, a legal issue relating to the power of the executive magistrates to cancel the bond already given by an accused. The questions to be decided by the larger bench are whether the Magistrate concerned, can exercise his/her power under Section 122 (1)(b) CrPC for violation of bond executed under Section 110 CrPC?
Whether he/she can exercise the power under Section 122 (1)(b) for violation of bond executed for good behaviour under Sections 108 and 109 of the CrPC by treating the order of the Magistrate passed under Section 117 CrPC, which explicitly include good behaviour also, as one by harmonious construction and interpretation of the provisions concerned, to render the purpose and effect to the scheme of Chapter VIII of CrPC?
The other issue raised is whether the petitioners are entitled to prior notice before invoking power under Section 122 (1)(b) CrPC by Executive Magistrate concerned? Justice V Parthiban raised the issues on November 24 last, while passing orders on a criminal revision petition from one Vadivel alias Mottai Vadivel, challenging an order dated July 20 last, of the Executive Magistrate-cum-Deputy Commissioner of Police, Washermanpet, cancelling the bond given to him by invoking sub-clause 1(b) of Sec. 122 CrPC.
Answering the last issue, the judge himself said denial of prior notice will only do grave violence to the established principles of natural justice and besmirch the decision, making the process of the statutory authority as against its citizens.
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, the judge said.
The judge also recorded his appreciation for the illuminative submissions made by all the counsel on the issues and particularly, government advocate G Harihara Arun Somasankar for his out of the box approach and perspective.
“In any event, due to difference of opinion in regard to invocation of power under Section 122(1)(b) CrPC, in the fitness of things, this Court is of the view that the matter may be placed before the Chief Justice for referring the issues raised before a division or a larger bench for authoritative pronouncement,” the judge added and accordingly directed the Registry.