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2017 DIGILAW 325 (ORI)

Basistha Panda v. State of Orissa

2017-03-24

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. 1. This revision petition has been filed by the petitioner Basistha Panda to set aside the entire criminal proceeding under section 110 of Cr.P.C. vide CMC No. 149 of 2016 pending before the Additional D.C.P.-cum-Executive Magistrate, Bhubaneswar. 2. Learned counsel for the petitioner Mr. Deepak Parida contended that the entire proceeding is not only illegal but also suffers from non-application of mind and there was no material before the learned Magistrate to hold the petitioner as a habitual offender. It is contended while challenging the order dated 31.12.2016 that no notice was issued to the petitioner and he was not provided with an opportunity of hearing and therefore, the order passed by the learned Executive Magistrate issuing detention warrant to the Superintendent, Special Jail, Bhubaneswar to detain the petitioner for the rest of the good behaviour of the bond period i.e. till 20.02.2018 for commission of breach of bond by him should be quashed. 3. On perusal of the order sheet supplied by the learned counsel for the petitioner, it appears that on the basis of Airfield Police Station Non-FIR No.01 dated 04.02.2016 regarding the involvement of the petitioner in eight cases, on 09.02.2016 the Addl. D.C.P. -cum-Executive Magistrate, Bhubaneswar being satisfied that there is prima facie case to proceed under sections 110(e) and (g) of Cr.P.C. against the petitioner, directed him to show cause as to why he should not be ordered to execute the bond to show good behaviour for a period of two years, with conditions. The learned Executive Magistrate directed to serve a copy of the order under section 111 of Cr.P.C. on the petitioner and issued production warrant against the petitioner. On 23.02.2016 the petitioner furnished the bonds which were accepted under section 117 of Cr.P.C. to maintain good behaviour and peace and tranquility in the locality for a period of two years with further conditions that he should not be involved in any act of offence punishable with imprisonment in any manner and to appear before the IIC, Airfield Police Station on each Sunday and to appear before the Court on each date of posting till disposal the bond period and to carry out the conditions of the bond and in default, it would be treated to have committed breach of bond. 4. 4. The order dated 30.12.2016 indicates that the Executive Magistrate received the reports from the IIC, Airfield Police Station regarding the involvement of the petitioner in two more cases i.e. Airfield P.S. Case No.281 dated 26.10.2016 under sections 452/341/323/ 307/294/506/34 of the Indian Penal Code and Airfield P.S. Case No.334 dated 28.12.2016 under sections 341/323/329/506/34 of the Indian Penal Code. The learned Executive Magistrate perused the first information reports in the two cases as well as forwarding reports and recorded the evidence of the IIC, Airfield Police Station. Before passing any order for breach of bond, the learned Executive Magistrate thought it necessary to hear the explanation of the delinquent. 5. On 31.12.2016 the petitioner was produced in custody and he explained that the cases have been foisted against him. Learned Executive Magistrate being satisfied that the petitioner has committed breach of bond being involved in two cases of Airfield Police Station during the execution of good behaviour bond period with effect from 23.02.2016, violated the conditions as enumerated under section 120 of Cr.P.C. and accordingly, he held that the petitioner is required to be detained in custody for the rest of the good behaviour bond period of two years with effect from 23.02.2016 as stipulated under section 122(1)(b) of Cr.P.C. 6. Mr. Deepak Kumar, learned Addl. Standing Counsel for the State contended that there is no illegality in the impugned order and principle of natural justice has not been violated. In fact, the learned Executive Magistrate not only decided to hear the explanation of the petitioner on 30.12.2016 but in fact heard the petitioner on 31.12.2016 and therefore, the contentions of the learned counsels for the petitioner that no notice was served on the petitioner is not acceptable. 7. Section 122(1)(b) of Cr.P.C. reads as follows:- “If any person after having executed a [bond, with or 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 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. ” 8. ” 8. There is no dispute that the petitioner has executed bond for keeping peace in pursuance of an order under section 117 of Cr.P.C. and after executing such bond and being released from jail custody, the petitioner got himself involved in two cases under Airfield Police Station and one of such case is one under section 307 of the Indian Penal Code. In the year 2016, also the petitioner was charge sheeted in connection with Bhubaneswar UPD Mahila P.S. Case No.347 of 2014 (CID, Crime Branch P.S. Case No.01 dated 12.01.2015) under sections 498-A and 302 of the Indian Penal Code. On 29.01.2016, Sahidnagar P.S. Case No.71 of 2016 was instituted against him under sections 143, 147, 341, 323, 354, 379, 436, 307, 506 read with section 149 of the Indian Penal Code. 9. Therefore, there was ample material before the Executive Magistrate that during execution of good behaviour bond period, the petitioner has committed breach of bond. After giving personal hearing to the petitioner on this matter, when the order dated 31.12.2016 was passed, it cannot be said that any illegality was committed by the learned Executive Magistrate. The nature of offence under which the petitioner is involved in different cases including the earlier eight cases would show that he is a habitual offender and therefore, I do not find any fault in the criminal proceedings under section 110 of Cr.P.C. vide CMC No.149 of 2016 as well as in the order dated 31.12.2016 in issuing detention warrant to the Superintendent, Special Jail, Bhubaneswar to detain the petitioner for the rest of the good behaviour bond i.e. till 20.02.2018 for commission of breach of bond by him. 10. Accordingly, the revision petition being devoid of merits, stands dismissed.