A single judge bench of the Madras High Court comprising of Justice G. Ilangovan, in a criminal revision petition, quashed the order passed u/s 122(1)(b), because the procedural requirements for the same were not met and Enquiry was found to be a necessary procedural requirement.
The court reiterated the 10-pointer guidelines which must be followed for the same.
Brief Facts:
This was a Criminal Revision case that was filed to set aside the order dt. 02.09.2022. In the said order proceedings u/s 122 (1) (b) were initiated against the petitioner for violation of a bond executed u/s 110(e) Cr.P.C and for the same no enquiry was undertaken. Accordingly, it was alleged that it was passed without any application of mind and is not reasonable and proper.
Contentions of the Respondent
It was submitted by them that the procedure was followed properly and accordingly the statement of the witnesses was recorded and sufficient opportunities were given for the same the statement recorded from the petitioner was circulated. Further, it was put forth that even though the petitioner executed sureties before the first respondent, in violation of his own bond he had involved in the offence before the second respondent police and hence, the impugned order has been passed by the first respondent.
Contentions of the Petitioner
The petitioner accepted the subsequent happenings as mentioned by the respondents, but further added that the procedure had not been followed properly and for the same they relied on the case of P. Sathish @Sathish Kumar v. State represented by the Inspector of Police.
Observations of the court:
The court noted the contentions of both the sides and decided the case to allow the petition. The court further reiterated the following procedural requirements in light of the case of P. Sathish @Sathish Kumar v. State represented by the Inspector of Police:
“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 a 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 to 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 of the Court:
The Hon’ble Court allowed the petition and accordingly the order date. 02.09.2022 was quashed. However, liberty was granted to the respondents to initiate fresh action if required by following the procedure that has been mentioned in the judgment. Further, the petitioner was directed to be released immediately if they are not required in any other case.
Case Title: Marudheeswaran v. State Rep. and Ors. and others
Coram: Honourable Mr. Justice G.Ilangovan
Case No.: Crl.R.C.(MD).No.120 of 2023
Advocate for the Appellant: Mr. K. Sivabalan
Advocate for the Respondent: Mr. M. Sakthi Kumar (Government Advocate – Crl. Side)
Read Judgment @LatestLaws.com:
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