Madras High Court
Kali Kumar : Revision vs The Sub Divisional ... on 30 April, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 30.04.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.280 of 2021
and
Crl.MP(MD)Nos.2781 and 2782 of 2021
Kali Kumar : Revision Petitioner
Vs.
1.The Sub Divisional Magistrate-cum-
Revenue Divisional Officer,
Paramakudi,
Ramanathapuram District.
2.The Inspector of Police,
Mandalamanikkam Police Station,
Ramanathapuram District.
3.The Superintendent of Prison,
Central Prison, Madurai. : Respondents/Complainants
Prayer: Criminal Revision has been filed under section
397 r/w 401 of Criminal Procedure Code, against the order passed
by the 1st respondent, in his proceedings in MC No.396 of 2020,
dated 17.03.2021.
For Petitioner : Mr.M.S.Jeyakarthik
For Respondents : Mr.A.Robinson
Government Advocate
(Criminal side)
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2
ORDER
This criminal revision is directed against the order passed
by the 1st respondent, in his proceedings in MC No.396 of 2020,
dated 17.03.2021.
2.The short facts of the case is that the petitioner had
frequently involved in criminal cases and a report was initiated by
the 2nd respondent and the same was forwarded to the 1 st
respondent for further action and after perusal of the records, the
1st respondent issued summon under section 111 Cr.P.C and
directed the petitioner to execute a bond with sureties under
section 110 of the Criminal Procedure Code, in MC No.205 of 2020,
dated 05.10.2020 for a period of one year for keeping peace and
maintaining good behaviour. But unfortunately, after executing the
bond, again the petitioner involved in a criminal offence and on the
complaint, a case was registered by the 2nd respondent police, in
Crime No.178 of 2020 for the offence under sections 294(b), 323,
324, 427 and 506(ii) IPC and he was arrested by the 2nd respondent
police and remanded to the judicial custody. Subsequently, after
careful consideration of the documents and statement of the
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petitioner, the 1st respondent has passed the impugned order.
Aggrieved by the impugned order passed by the 1st respondent, the
petitioner is before this court.
3.Heard the learned counsel appearing on either side and
perused the materials available on record.
4.The main contention raised on the side of the petitioner
is that the 1st respondent, even without recording the evidence of
the first party, who made the complaint against the petitioner,
passed the final order and the 1st respondent has not given prior
notice or list of witnesses to be examined to the petitioner before
passing the impugned order and the 1st respondent did not provide
reasonable opportunity to defend the case before passing the
impugned order. It is the further contention of the petitioner that
when without giving reasonable opportunity to defend the case of
the petitioner, any order passed by the Executive Magistrate can be
set aside. For that, the learned counsel for the petitioner submitted
the following judgments:-
01.AIR (33) 1946 Allahabad 333 (Narain
Sahai and others Vs. Emperor);
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(02).Order of this Court passed in
Crl.OP(MD)No.6841 of 2015, dated
10.04.2015(Malathi Vs. State);
(03).2016 CRI.L.J. 4603 (Bala Vs.
Administrative Executive Magistrate, Trichy City);
(04).Order of this court passed in
Crl.O.P(MD)No.7591 of 2017, dated 21.04.2017
(Rajkumar Vs. State);
(05).2017(1)TLNJ 516 (Criminal)
(Sivashanmuga Sundaram Vs. The Executive
Magistrate/Deputy Commissioner of Police L & O,
Tirunelveli and two others);
(06).Order of this Court made in
Crl.R.C.No.505 of 2017, dated 05.07.2017 (Selvam
@ Selvaraj Vs. The Executive Magistrate-cum-
Deputy Commissioner of Police, (Law & Order,
Crime and Traffic), Tiruppur City and another);
(07).Order of this court passed in
Crl.MP(MD)No.7580 of 2018 in Crl.RC(MD)No.
542 of 2018, dated 25.09.2018 (Thangam
(Mathalai Muthu Vs. The Executive First Class
Magistrate-cum-Revenue Divisional Officer,
Dindigul); and
(08).Order of this court passed in
Crl.MP(MD)No.8387 of 2018 in Crl.RC(MD)No.
585 of 2018, dated 28.02.2019 (Amalraj Vs. The
Executive First Class Magistrate-cum-Revenue
Divisional Officer, Dindigul).
5.On the other hand, the learned Government Advocate
(Criminal side) appearing for the respondents argued that the 1st
respondent has rightly passed the impugned order and prays for
dismissal of the criminal revision.
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6.A careful perusal of the impugned order would show the
non-application of mind of the 1st respondent. Merely because a
case has been registered against the petitioner, the same cannot be
said to be sufficient ground leading to prove the breach of bond to
the satisfaction of the Magistrate concerned, that too without
hearing the affected party. The close reading of Section 122(1)(b)
Cr.P.C would clearly show that the Executive Magistrate shall give
an opportunity to the petitioner and apply his judicial mind and
arrive at his satisfaction that the petitioner had breached the
security bond executed by him to keep good behaviour and he must
also record the grounds of such proof. As per Section 122(1)(b)
Crl.P.C, the 1st respondent/Executive Magistrate must record his
grounds of satisfaction and he must say whether sufficient cause
has been established. But he did not do so. It is complete non-
application of mind. The 1st respondent passed the impugned order
mechanically.
7.Further perusal of the impugned order, dated
17.03.2021 passed against the petitioner by the 1st respondent,
nothing is mentioned about the examination of witnesses, supply of
materials, including the report of the Inspector of Police concerned
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sent to the 1st respondent for arriving at a just conclusion that the
petitioner has violated the bond condition and further course of
supplying the documents and getting view of reply from the
petitioner and the appearance of the petitioner before the 1st
respondent and an opportunity of being heard was given to him for
the conclusion reached by the 1st respondent.
8.At this juncture, it is pertinent to mention the decision
reported in 2016(2) TLNJ 228 (Criminal) (Bala @
Balakrishnan and Administrative Executive Magistrate,
Trichy City and others, wherein, it has been held as follows:-
“As per Section 122(1)(b) of Cr.P.C., the
Executive Magistrate before ordering a person to
be jailed, he shall be satisfied that the person has
breached the bond conditions, the Executive
Magistrate must also record the grounds for such
proof. That means, he must apply his mind and
pass orders. He cannot pass order mechanically.
But he need not write an elaborate Judgment like
us. His orders must show atleast briefly the
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grounds upon which, he has satisfied that the
person has breached the bond executed by him.
Under Section 122(1)(b) of Cr.P.C., if the said
satisfaction is not recorded, it will be presumed
that the detention authority sending a person to
jail is arbitrary, mechanical, not fair, unjust. The
detention order must disclose the grounds of
proof, otherwise, the Court cannot see what has
transpired in the mind of the Executive
Magistrate in passing the detention order, more
particularly, when these orders are revisable by
the Sessions Judges.”
9.Keeping in view of the above facts, this court is of the
considered view that the impugned order has not been passed in
accordance with law and has been passed mechanically. From the
legal position stated above, it is clear that the impugned order has
been passed without following the principles of natural justice and
the same is liable to be set aside.
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10.In fine, this Criminal Revision Petition is allowed and
the impugned proceedings passed by the 1st respondent in MC No.
396 of 2020, dated 17.03.2021 is set aside. The 3rd respondent is
directed to set at liberty the revision petitioner, if his further
detention is no longer required in connection with any other case or
proceedings. Consequently, connected Criminal Miscellaneous
Petitions are closed.
30.04.2021
Index:Yes/No
Internet:Yes/No
er
Note: Issue order copy on 03.05.2021
Copy to: The Superintendent of Prison,
Central Prison, Madurai.
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
To,
1.The Sub Divisional Magistrate-cum-
Revenue Divisional Officer,
Paramakudi,
Ramanathapuram District.
2.The Inspector of Police,
Mandalamanikkam Police Station,
Ramanathapuram District.
3.The Superintendent of Prison,
Central Prison,
Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
T.KRISHNAVALLI,J
er
Order made in
Crl.R.C(MD)No.280 of 2021
30.04.2021
https://www.mhc.tn.gov.in/judis/
Crl.RC(MD)No.164 of 2021
T.KRISHNAVALLI,J
ADVANCE ORDER
In fine, this Criminal
Revision Petition is allowed and the
impugned proceedings issued by the
first respondent in A2/MCP/No.
25/2020, dated 02.02.2021 is set
aside. The Superintendent, Central
Prison, Palayamkottai, Thirunelveli,
is directed to set at liberty the
petitioner/detenu, if his further
detention is no longer required in
connection with any other case or
proceedings. Consequently,
connected Criminal Miscellaneous
Petition is closed.
30.04.2021
er
To,
The Superintendent of Prison,
Central Prison, Trichy
https://www.mhc.tn.gov.in/judis/
https://www.mhc.tn.gov.in/judis/
