Madras HC issues guidelines for ordering Arrest on Breach of Security Bond u/s 122 CrPC

With a view to ensuring that the powers of Executive Magistrates to order the arrest of persons for breach of security bond are not misused, the Madras High Court has laid down detailed guidelines for the exercise of these powers under Section 122 (1) (b) of the Code of Criminal Procedure (CrPC), 1973.

Justice V Parthiban passed an order to this effect on noting that Executive Magistrates often deviate from the Constitutional principles they are bound to follow while applying Section 122 (1) (b), CrPC.

In particular, the Court emphasised that detention of persons is sometimes ordered by Magistrates citing breach of security bond without giving them a reasonable opportunity to be heard, despite several case laws calling for the same.

“The power which is exercisable under Section 122(1)(b) of CrPC has come up for consideration before various Judges of this Court and this Court, in a number of decisions, has held uniformly that a person, whose bond is sought to be revoked under Section 122(1)(b) of CrPC, is to be given opportunity before he is sentenced to undergo unexpired period of bond….

… it appears that despite several orders passed by this Court, routinely orders are being passed by the Executive Magistrates concerned without giving proper opportunities to the persons concerned, resulting in interference by this Court quite often by entertaining revision petitions filed against the orders passed by the Executive Magistrates.“

Emphasizing that Executive Magistrates need to follow the due process of law before sentencing any person for violation of the security bond conditions, Justice Parthiban proceeded to lay down the following procedure to be complied with in the exercise of powers under Section 122 (1) (b), CrPC.

• Notice is to be sent to the person by the Executive Magistrate to show cause as to why action under Section 122(1)(b) of CrPC should not be taken for breach of the bond executed.
• At the enquiry, the Executive Magistrate should furnish the person the materials sought to be relied upon, including statements of witnesses, if any, in the vernacular (if the person is not knowing the language other than his mother tongue).
• If the person wishes to engage an Advocate to represent him at the enquiry, an opportunity to have a counsel of his choice should be provided to him. The Executive Magistrate shall inform the person about his right to have the assistance of a lawyer in the enquiry.
• The enquiry shall be conducted by the Executive Magistrate on the notified date or such other date as may be fixed and the person should be allowed to participate in the same.
• At the enquiry, an opportunity should be given to the person for examining witnesses and documents.
• Such Executive Magistrate or his successor in office should apply his mind on the materials available on record in the enquiry.
• The Executive Magistrate or his successor in office should pass a speaking order.
• An order under Section 122 (1) (b) of CrPC should contain the grounds upon which the Executive Magistrate is satisfied that the person has breached the bond.
• A copy of the order should be furnished to the person along with the materials produced at the enquiry.
• The enquiry, as far as possible shall be completed within 30 days and at no circumstance, the enquiry shall be adjourned unnecessarily.
• The advocates who appear on behalf of the persons concerned are expected to co-operate with the enquiry process for its expeditious completion.

The guidelines were framed relying on several case laws on the subject as well as the Constitutional imperatives laid down in Articles 21, 22 and 39A of the Constitution. The Court also weighed the views forwarded by the Bar, including those of Amicus Curiae, Senior Advocate Ravi Kumar Paul and Public Prosecutor A Natarajan.

Natarajan had expressed certain reservations concerning the feasibility of holding a full-fledged trial for the revocation of bonds, and the need for allowing the engagement of advocates in such cases. Instead, he recommended that an order revoking security bond and directing detention of a person should only be passed in the presence of a blood relation, who may also assist the person. However, the Court opined,

“When the liberty of an individual is sought to be affected and curtailed, the State is bound to provide legal assistance and also provide meaningful and fair opportunity to the persons concerned. In the absence of such opportunity, as aforementioned, the orders to be passed by the Executive Magistrates is prone to interference as being unconstitutional and contrary to the legal principles laid down by this Court…

… When the personal liberty of a person is sought to be taken away by condemning him into prison for an unexpired period of bond, it is statutorily and constitutionally imperative that the person concerned must be given the benefit of meaningful, real and fair opportunity, as that alone would be the safeguard for the citizens against misuse of the provisions of Cr.P.C., by the Executive Magistrates concerned.“

The Court has directed that the procedure detailed above is to be strictly followed by Executive Magistrates in the future. To this end, the Court has also directed the Public Prosecutor to circulate the order to the government, so that it can instruct Executive Magistrates in this regard.