Madras High Court

Sermam : Revision vs The Sub-Divisional Executive ... on 30 April, 2021

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                                   BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     Dated: 30.04.2021

                                                         CORAM

                             THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI

                                             Crl.R.C(MD)No.235 of 2021
                                                        and
                                             Crl.MP(MD)No.2465 of 2021

                     Sermam                                  : Revision Petitioner/Offender


                                                                 Vs.

                     1.The Sub-Divisional Executive Magistrate
                       and Revenue Divisional Officer,
                       Tenkasi, Tenkasi District.

                     2.State Rep. by
                       The Inspector of Police,
                       Uthumalai Police Station,
                       Tenkasi District.
                       (Crime No.528 of 2020)                : Respondents/Complainants

                                   Prayer: Criminal Revision has been filed under section
                     397 r/w 401 of Criminal Procedure Code, against the order passed
                     in A2/MCP/No.25/2020, dated 02.02.2021 on the file of the Sub
                     Divisional Executive Magistrate and Revenue Divisional Officer,
                     Tenkasi.


                                    For Petitioner           : Mr.K.Sivabalan

                                    For Respondents          : Mr.A.Robinson
                                                               Government Advocate
                                                               (Criminal side)



https://www.mhc.tn.gov.in/judis/
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                                                      ORDER

This criminal revision is directed against the order passed

in A2/MCP/No.25/2020, dated 02.02.2021 by the first respondent/

Sub Divisional Executive Magistrate and Revenue Divisional Officer,

Tenkasi.

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.25 of 2020,

dated 30.09.2020, for a period of one year for keeping peace and

maintaining good behaviour. But unfortunately, after executing the

bond, on 31.12.2020 again the petitioner involved in a criminal

offence and on the complaint, a case was registered by the

Uthumalai Police, in Crime No.528 of 2020 for the offence under

sections 294(b), 392 and 506(2) IPC and he was arrested by the 2nd

respondent police and remanded to the judicial custody.

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Subsequently, after careful consideration of the documents and

statement of the 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 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);

(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);

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(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 the

petitioner was a habitual offender and having 6 previous case 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

certain cases have 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.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:-

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“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

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.”

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8.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.

9.In fine, this Criminal Revision Petition is allowed and

the impugned proceedings passed by the 1st respondent in

A2/MCP/No.25/2020, dated 02.02.2021 is set aside. The

Superintendent, Central Prison, Palayamkottai, Tirunelveli 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

Petition is closed.

30.04.2021

Index:Yes/No Internet:Yes/No er

Note:Issue order copy on 03.05.2021

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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.

To,

1.The Sub-Divisional Executive Magistrate and Revenue Divisional Officer, Tenkasi, Tenkasi District.

2.The Inspector of Police, Uthumalai Police Station, Tenkasi District.

3.The Superintendent of Prison, Central Prison, Palayamkottai, Thirunelveli.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

T.KRISHNAVALLI,J

Order made in Crl.R.C(MD)No.235 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

To,

The Superintendent of Prison,

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Central Prison, Trichy

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