CRL RC(MD). No.1630 of 2025

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 07/01/2026

CORAM

THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ

CRL RC(MD). No.1630 of 2025

and

Crl.M.P.(MD)No.20147 of 2025

Muthukaruppan, ... Petitioner

Vs.

1. The Executive Magistrate Cum,

Tahsildar,

Avudaiyarkovil Taluk,

Aranthangi, Pudhukottai District.

2. State of Tamilnadu Rep by

Inspector of Police,

Mimisal Police Station,

Pudhukottai District.

Cr. No.133 of 2025. ... Respondents

PRAYER :- This Petition is filed under Section 438 BNSS, to call for the

records pertaining to the impugned order dated 28.11.2025 in M.C. No.

14/2025 passed by the 1

st

respondent and setaside the same.

For Petitioner : Mr.M.Dinesh Hari Sudarsan,

For Respondents : Mr.A.Thiruvadi Kumar,

Additional Public Prosecutor

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O R D E R

Heard, Mr.M.Dinesh Hari Sudarsan, learned Counsel for the

Revision Petitioner and Mr.A.Thiruvadikumar, learned Additional Public

Prosecutor for Respondents.

2. This Criminal Revision Petition has been filed challenging the

order dated 28.11.2025 passed by Executive Magistrate cum Tahsildar,

under Section 141 of BNSS, directing imprisonment of petitioner for

breach of bond executed under section 129 of BNSS.

3. At the outset, it was submitted that the impugned order may be

bad for want of jurisdiction inasmuch as the Executive Magistrate may

not have the jurisdiction nor authority to order imprisonment for breach

of bond executed under Section 129 BNSS (110 Cr.P.C).

4. Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor,

would submit that issue is no longer res integra and has been

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conclusively settled by the Division Bench of this Court in the case of

P.Sathish @ Sathish Kumar v. State rep. by the Inspector of Police,

reported in CDJ 2023 MHC 1826, wherein several issues of law were

raised and considered, including the following questions:

“(ii) Whether the Executive Magistrate concerned can exercise his

power under Section 122(1) (b) for violation of bond executed under

Section 110 of the Code of Criminal Procedure?

(iii) Whether the power to issue G.O.Ms.No.659, Home (Csts.VIA)

Department, dated 12.09.2013 and G.O.Ms.No.181, Home (Cts.VIA)

Department, dated 20.02.2014 should be traced to Section 20 Sub-clause

4 and Sub-Clause 5 of the Code of Criminal Procedure, r/w. Sections 6

and 7 of the Madras City Police Act, 1888?”

5. While, considering the above questions, the Hon'ble Division

Bench of this Court in P.Sathish @ Sathish Kumar's case held as under:

“25. The next question is whether an

Executive Magistrate has the

power to impose sentence under the Code. Though

the question was originally formulated in rather

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generic terms, during the course of arguments it was

agreed that the issue can be confined to whether

imprisonment for breach of a bond executed under

Section 107 can be ordered by an Executive

Magistrate under Section 122(1)(b). Therefore, the

question is whether an Executive Magistrate has

power to imprison a person under Section 122(1)(b)

for violation of the conditions of the bond executed

under Section 107.

26.The contention raised by the State is that

Section 122(1)(b) specifically states that where an

order of a Magistrate under Section 117 is proved to

have been breached “such Magistrate or his

successor-in-office” may order arrest and detention

until the expiry of the bond period. The expression

“such Magistrate” occurring in Section 122(1)(b)

could only mean the Magistrate acting under Section

117 which, in the context of a proceeding under

Section 107, is an Executive Magistrate. It is, thus,

contended that the Code has vested powers with

Executive Magistrates under Chapter VIII to

authorise detention. Our attention was also drawn to

the decision of the Supreme Court in Devadassan v

Second Class Executive Magistrate (2022 SCC

Online SC 280), wherein an order passed by the

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Executive Magistrate detaining a person under

Section 122(1)(b) was upheld.

27. The Executive Magistrate is a creation of

the Code of Criminal Procedure, 1973. Under the

Code of Criminal Procedure, 1898 proceedings

under Section 107 could be initiated by a Presidency

Magistrate, District Magistrate, Sub-Divisional

Magistrate or Magistrate of the First Class. The

Code of 1898 did not envisage any separation of

functions between the judicial and the executive

branches of the State. Consequently, the executive

branch as well as the judicial branch could exercise

powers under Section 107 and pass orders under

Section 118 (present Section 117).

28. In fact, the absence of any separation of

judicial and executive functions between the various

Courts of Magistrate was one of the primary reasons

for the Law Commission to recommend the overhaul

of the 1898 Code in its 37

th

Report. In its 41

st

Report, the Law Commission recommended that the

old nomenclature be done away with and that the

Magistracy be reorganised on the lines of Judicial

and Executive Magistrates. In the Metropolitan

areas, the Code created a class of Magistrates called

Metropolitan Magistrates who exercise the

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jurisdiction of Judicial Magistrates in a

Metropolitan area (as notified under Section 8). The

Law Commission, in its 41

st

Report, has specifically

adverted to the proposed functions of Executive

Magistrates under the new Code and had observed

as under:

“As regards the Executive Magistrates, we do

not see any point in maintaining the distinction of

first and second class. The functions to be

performed by Executive Magistrates under the Code

are very few and they hardly admit of being divided

into more important functions that will have to be

performed by Executive Magistrates of the first class

and less important ones that could be left to junior

magistrates put in the second class. In fact, the day-

to-day, routine work of an executive magistrate

under the Code arising in any sub-division may not

require more than one officer to handle- We notice

that in Bombay, according to the amendment of the

Code made in 1951, executive magistrates are not

divided into those of the first class and of the second

class nor is there a division of functions between

senior and junior magistrates. Provision is made for

a category designated Taluka Magistrates who are

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presumably subordinate revenue officers in charge of

talukas. We propose that there need be only one class

"of executive magistrates under the Code, that the

chief officer in charge of the administration of the

district (whether known as

District Collector, District Officer or Deputy

Commissioner) should continue, as at present, to be

the District Magistrate,and that the institution of

Sub-divisional Magistrates on the executive side

should also be retained. If there is need for an

executive magistrate at the taluka or tahsil level in

any State,an executive or revenue officer of the

Government can be appointed simply as Executive

Magistrate to exercise functions under the Code”.

29.Section 107 of the Code undoubtedly vests

power with the Executive Magistrate to initiate

proceedings under the said provision, followed by

the passing of a preliminary order under Section 111,

and an inquiry under Section 116. If the Magistrate

chooses to pass an order directing security to be

furnished, a final order to that effect may be made

under Section 117. Thus, a proceeding initiated

under Section 107 may either end up with a final

order under Section 117 or with an order of

discharge under Section 118.

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30.It appears that the Law Commission, in its

41

st

Report, had recommended the vesting of powers

in Executive Magistrate for the

following reasons (pp 50):

“In order to be effective, proceedings under

the section have to be taken urgently, and as they are

immediately concerned with maintenance of peace

and order, the functions should, in our opinion, be

assigned to executive magistrates.”

Thus, what appears to have weighed with the

Law Commission as well as Parliament is that

proceedings under Section 107 must be carried out

with a sense of immediacy. Thus, the initiation,

conduct of inquiry and passing of final orders either

under Section 117 or discharge under Section 118

was vested with the Executive Magistrate. In fact,

when Parliament passed the Amendment Act of 1980

taking away the powers under Section 108 to 110

from Judicial Magistrates and vesting them with

Executive Magistrates, the justification given by the

Minister of State for Home Affairs, who moved the

Amendment bill on the floor of the Lok Sabha was as

follows:

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CRL RC(MD). No.1630 of 2025

“Some of the hon. Members are suffering

from a misconception that these are all of a punitive

nature. As a matter of fact, they are security

proceedings, designed to play a role only in the

prevention of crime and especially assisting the

maintenance of law and order. It is only a preventive

sort of measure. It is not designed to be a punitive

nature and as a matter of fact any action taken under

these sections can be referred for an appeal to the

Sessions Judge.”

It is, therefore, clear that even before

Parliament, vesting of jurisdiction with Executive

Magistrates under Sections 108 to 110 was on the

understanding that it is preventive and not punitive

in nature. This is because a final order under

Section 117 only involves the taking of security by

executing a bond under Sections 107 to 110. In

other words, at the Section 117 stage there is no

interference to personal liberty as the person

concerned is merely required to execute a bond

either under Form 12 or Form 13 of the Second

Schedule of the Code.

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31. The punitive element is only in Section 122

which deals with a failure to execute a bond (Section

122(1)(a) and consequences of a breach of a bond

executed under Section 107 (Section 122(1)(b).

Nevertheless, proceedings under Section 122 are

clearly separate and distinct from the proceedings

which culminate with the passing of a final order

under Section 117.

32.The question then is whether the Executive

Magistrate can proceed to authorize detention under

Section 122(1)(b) if it is proved that a bond executed

under Section 107 to 110, pursuant to an order under

Section 117, has been breached. Section 122(1)(b)

reads as follows:

“(b) If any person after having executed a

bond, [with or without sureties] 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

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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.”

We have already concluded that the breach of

a bond under Section 122(1)(b) would result in

initiation of proceedings under Section 446 Cr.PC.,

for forfeiture and recovery of the sum covered by the

bond. Thus, only a bond executed under Section 107

pursuant to an order under Section 117 comes within

the net of this provision. Section 122(1)(b) does not

use the expression Executive Magistrate, but merely

states “Magistrate”. Section 3(1) (a) of the Code

reads as follows:

“3. Construction of references.—(1) In this

Code,—

(a) any reference, without any qualifying

words, to a Magistrate, shall be construed, unless the

context otherwise requires,—

1.in relation to an area outside a metropolitan

area, as a reference to a Judicial Magistrate;

2.

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(ii) in relation to a metropolitan area, as a

reference to a Metropolitan Magistrate;

……………..”

Therefore, where the Code merely uses the

expression Magistrate it must be read, unless the

context otherwise requires, as referring to a Judicial

Magistrate or a Metropolitan Magistrate, as the case

may be. The question is whether the meaning of the

expression “Magistrate” in the context of Section

122(1)(b) warrants a departure from the aforesaid

construction.

33.It is no doubt true that Section 122(1)(b)

read literally requires proof of breach to be proved

before “such Magistrate or his successor-in-

office” before whom the bond was executed under

Section 117. The larger question, however, is

whether an Executive Magistrate is invested with

powers under the Code to inflict punishment. Our

attention was invited by the Amicus Curiae to

Section 167(2-A) of the Code which authorizes the

detention of an accused by an Executive Magistrate.

It was pointed out that to exercise powers of

detention Section 167 (2-A) requires that an

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Executive Magistrate must be specifically invested

with the powers of a Judicial or Metropolitan

Magistrate. This can be done by the High Court on a

request made by the State Government under

Sections 13 or 18 of the Code. This itself would show

that the detention of a person, which is an

interference with his personal liberty, cannot be

done by an Executive Magistrate without being

specially invested with the powers of a Judicial

Magistrate.

34. ....

A close reading of the aforesaid passages from

the decision in Gulam Abbas would show that (i) the

power to direct the execution of a bond under

Section 107 Cr.P.C is an executive function and (ii) if

any one were to commit a breach of any order passed

by an Executive Magistrate in exercise of his

administrative or executive function, which includes

an order under Section 117 directing the execution

of a bond under Section 107, he will have to be

prosecuted before a Judicial Magistrate to receive

punishment. This decision, being a decision of a

bench of three judges of the Supreme Court, is

clearly binding on us.

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........

40. It was, however, urged on behalf of the

State that the decision of the Supreme Court in

Devadassan v Second Class Executive Magistrate,

(2022 SCC Online SC 280), is an authority for the

proposition that an Executive Magistrate can detain

a person in exercise of power under Section 122(1)

(b). This decision emanated out of an order passed by

a learned single judge in the Madurai Bench of this

Court in Cr.R.C (MD) 379 of 2021. The order of the

learned single judge discloses that the only point

raised before the Court was that no opportunity was

given to the accused before the bond was forfeited.

The Court negatived the contention and dismissed the

revision. On appeal, the only point urged before the

Supreme Court, as is evident from paragraph 4 of

the order, was that the appellant had been jailed

without due enquiry and without affording

reasonable opportunity. The Supreme Court upheld

the order observing that “in the facts of the case at

hand, nothing has been brought on record that how

and in what manner the procedure contemplated

under Chapter VIII has not been followed.” That

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apart, more importantly we notice that the decision in

Gulam Abbas, which was by a bench of three Hon’ble

Judges, was not brought to the notice of the two

Hon’ble Judges who decided Devadassan. Under

these circumstances, as a measure of judicial

discipline we are bound by the dicta of the larger

bench of the Supreme Court in Gulam Abbas.

41.In view of the aforesaid discussion, we

hold that an Executive Magistrate cannot authorize

arrest and detention of a person under Section

122(1)(b) for violation of a bond under Section 107

Cr.P.C. In view of the decision of the Supreme Court

in Gulam Abbas, a person violating the bond under

Section 107, executed pursuant to an order under

Section 117, will have to be challanged or

prosecuted before a Judicial Magistrate to receive

punishment under Section 122(1)(b).”

6. In view thereof, impugned order cannot be sustained and thus

it is liable to be set aside, having said that, liberty is granted to the police

officials to proceed in accordance with law, keeping in view the law laid

down by Division Bench in the judgment referred supra.

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7. This Criminal Revision Petition is allowed and the impugned

order is hereby set aside. Petitioner is directed to be released forthwith,

unless he is wanted in some other case. Consequently, connected

Miscellaneous Petition is closed.

07.01.2026

LS

Note: Issue Order Copy by 09.01.20206.

To:

1. The Executive Magistrate Cum,

Tahsildar,Avudaiyarkovil Taluk,

Aranthangi,

Pudhukottai District..

2. The Inspector of Police,

Mimisal, Police Station,

Pudhukottai District.

3.The Superintendent,

Central Prison,

Trichy.

4.The Additional Public Prosecutor,

Madurai Bench of Madras High court,

Madurai.

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MOHAMMED SHAFFIQ,J.

LS

CRL RC(MD) No.1630 of 2025

07/01/2026

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