A single judge bench of the Madras High Court comprising of Mr. Justice G. Ilangovan allowed a petition on account of procedural defect. As contemplated under Section 122(1)(b) of the CrPC, an enquiry must be taken before passing of the order.
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.
Facts:
The proceedings under Section 122(1)(b) have been initiated against the petitioner, for violation of bond executed under Section 110(e) CrPc. 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 on 08.08.2022 and 10.08.2022 and this order has been passed by the first respondent on 10.08.2022, 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 CrPc.
The learned Government Advocate (Crl. side) appearing for the respondents submitted that the procedure has been followed properly. According to the learned Government Advocate (Crl. side), statement of witnesses has been recorded and sufficient opportunities were given to him. The learned Government Advocate (Crl. side) circulated a copy of the statement recorded from the petitioner.
Though the petitioner has executed sureties before the first respondent, in violation of his own bond, he has involved in the offences in Crime No.139/2022 before the second respondent police.
Therefore, the impugned order has been passed by the first respondent. The learned counsel for the petitioner submitted that even though subsequent happenings are there, the procedure has not been properly followed.
Observations of the Court:
The court relied upon P. Sathish @ Sathish Kumar Vs. State represented by the Inspector of Police, 2019 (2) MWN (Cr.) 136 in which the court held that notice has 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 under Section 117 CrPc on a date fixed. 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 to: (i) Cross-examine the official witnesses, if any and, (ii) produce documents and witnesses, if any, in support of his case. 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.
Decision:
In light of the above observation, this petition was allowed and accordingly the order passed by the first respondent, under Section 122(1)(b) CrPc. in Na.Ka.No.7969/2022/A8, dated 10.08.2022, was quashed. However, liberty was granted to the respondents herein to initiate fresh action, if so required, by following the procedure that has been set out in the above said Judgment.
Case: Vallarasu vs The Second Class Administrative and 2 others
Citation: Crl. R.C. (MD). No. 1221 of 2022
Coram: Mr. Justice G. Ilangovan
Pronounced on: 06.12.2022
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