A single judge bench of the Madras High Court comprising of Justice G. Ilangovan allowed a criminal revision petition against the order of and Executive Magistrate Cum Revenue Tahsildar who undertook no enquiry as contemplated under Section 122(1)(b) of the CrPC. 10 procedural guidelines were reiterated.
Facts:
The proceedings under Section 122(1)(b) had been initiated against the petitioner, for violation of bond executed under Section 110(e) Cr.P.C. Reading of the order shows that there is complete non-application of mind. It has been stated that the summon was issued to the petitioner and on 06.09.2022 this order has been passed by the first respondent, which is not reasonable and proper.
According to the learned counsel for the petitioner, before passing the above said order, no enquiry was undertaken as contemplated under Section 122(1)(b) of Cr.P.C. This Civil Revision Case is filed under Sections 397 r/w 401 of the Criminal Procedure Code, to call for the records pertaining to the order of the first respondent by his proceedings in Na.Ka.No.6649/2022/A4 dated 06.09.2022 and set aside the same as illegal and allow the above Criminal Revision Petition.
Observations of the Court:
The court accepted the petitioner’s argument that even though subsequent happenings were there, the procedure had not been properly followed. For that purpose, the learned counsel for the petitioner relied upon a decision in P.Sathish @ Sathish Kumar Vs. State 2019 (2) MWN (Cr.) 136 represented by the Inspector of Police. In that decision, the court gave 10 guidelines which have to be followed. They are as follows:
“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.
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 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.”
Decision:
The petition allowed and the order passed by the first respondent, under Section 122(1)(b) Cr.P.C. in Na.Ka.No.6649/2022/A4, dated 06.09.2022, was thereby quashed. However, liberty was granted to the respondents therein to initiate fresh action, if so required, by following the procedure that has been set out in the above said Judgment.
Case: Chandran vs The II-Class Executive Magistrate Cum Revenue Tahsildar and 2 others
Citation: Crl.R.C.(MD).No.1095 of 2022 and Crl.M.P(MD).No.13965 of 2022
Coram: Justice G. Ilangovan
Pronounced on: 18.11.2022
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