Crl.R.C.(MD).No.850 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.09.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.850 of 2022
and Crl.M.P.(MD).No.10685 of 2022
Jeyapal .. Petitioner
Vs.
1.The Second Class Executive Magistrate Cum Tahsildar,
Aundipatty Taluk,
Theni District. .. Respondent
2.The Inspector of Police,
Kadamalaikundu Police Station,
Theni District. .. Respondent/Complainant
PRAYER: This Civil Revision Case is filed under Sections 397 (3) r/w 401
of the Criminal Procedure Code, to call for the entire records pertaining to
the order passed by the learned Second Class Executive Magistrate Cum
Tahsildar, Aundipatty Taluk, Theni District in Na.Ka.No.3878/2022/A4,
dated 01.08.2022 and set aside the same.
For Petitioner : Mr.A.Kesavan
For Respondents : Mr.S.Manikandan
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Case has been filed against the order passed 1/7 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.850 of 2022 by the learned Second Class Executive Magistrate Cum Tahsildar, Aundipatty Taluk, Theni District in Na.Ka.No.3878/2022/A4, dated 01.08.2022.
2.The petitioner was issued with a notice by the 1st respondent under Section 109 Cr.P.C. to show cause as to why he should not execute a bond for keeping the peace for a period of six months with a bond for a sum of Rs.10,000/-. Following which on 20.06.2022 the petitioner is said to have appeared before the 1st respondent and executed such bond for a sum of Rs.
10,000/- with surety. In such a situation on 18.07.2022 a case was registered against the petitioner by 2nd respondent police in Crime NO.198 of 2022 for the offence punishable under Section 8 (C) r/w Section 20(b)(ii)(B) and 25(A) of NDPS Act. In connection with the above said case, a summon dated 27.07.2022 was issued to the petitioner under Section 117 of Cr.P.C., Following which on 29.07.2022, the petitioner was produced before the 1st respondent and on inquiry the 1st respondent passed the impugned order in Na.Ka.No.3878/2022/A4 dated 01.08.2022, whereby, the petitioner was ordered to be detained in prison till 19.12.2022 under Section 122(1)(b) of Cr.P.C. for breaching the bond executed by the petitioner under Section 109 of Cr.P.C. Aggrieved over the same the present criminal revision is filed 2/7 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.850 of 2022 before this Court.
3.The learned Government Advocate (Crl. Side) appearing for the respondent submitted that the procedure has been followed properly.
According to the learned Additional Public Prosecutor, the petitioner was enquired by the first respondent on 29.07.2022. During the course of enquiry, he himself admitted the charges framed against him. Based on the confession made by the petitioner and the records available with the respondent police, the first respondent has passed the above order.
4.The learned counsel for the petitioner submitted that the first respondent has not given any notice to the petitioner. Even though subsequent happenings are there, the procedure has not been properly followed. For that purpose, the learned counsel for the petitioner relied upon a decision of this Court in P.Sathish @ Sathish Kumar Vs. State represented by the Inspector of Police, reported in 2019 (2) MWN (Cr.) 136 and the relevant passages are extracted herein.
“1.Notice to be sent to the person by the Executive Magistrate to show cause as to why action under Section 122(1)(b) of Cr.P.C should not be taken for breach of the bond executed under Section 117 Cr.P.C on a date fixed.
3/7https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.850 of 2022
2.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).
3.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.
4.The Executive Magistrate shall inform the person about his right to have the assistance of a lawyer for defending him in the enquiry.
5.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.
6.At the enquiry, an opportunity should be given to the person to :(i) Cross-examine the official witnesses, if any and
(ii) produce documents and witnesses, if any, in support of his case.
7.Such Executive Magistrate or his successor in office, should then, apply his mind on the materials available on record, in the enquiry, and pass speaking order.
8.An order under Section 122(1)(b) of Cr.P.C should contain the grounds upon which the Executive Magistrate is satisfied that the person has breached the bond.
9.A copy of the order should be furnished to the person 4/7 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.850 of 2022 along with the materials produced at the enquiry.
10.The enquiry, as far as possible shall be completed within 30 days and at no circumstances, 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.”
5.In view of the above, this petition is liable to be allowed and accordingly, allowed and the order passed by the Second Class Executive Magistrate Cum Tahsildar, Aundipatty Taluk, Theni District in Na.Ka.No.
3878/2022/A4, dated 01.08.2022, is hereby set aside. However, liberty is granted to the respondent herein to initiate fresh action, if so required, by following the procedure that has been set out in the above said Judgment.
Consequently, connected miscellaneous petition is closed.
22.09.2022 Index : Yes / No Internet : Yes / No TM 5/7 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.850 of 2022 To
1.The Second Class Executive Magistrate Cum Tahsildar, Aundipatty Taluk, Theni District.
2.The Inspector of Police, Kadamalaikundu Police Station, Theni District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
6/7https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.850 of 2022 G.ILANGOVAN,J.
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