Madras High Court
Kadugu @ Nanthavarman vs The First Class Executive ... on 21 December, 2021
CRL.R.C.(MD).No.576 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 11.07.2022
PRONOUNCED ON: 13.07.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.R.C.(MD).No.576 of 2022
Kadugu @ Nanthavarman : Petitioner
Vs.
1.The First Class Executive Magistrate and
Revenue Divisional Officer,
Kumbakonam Division,
Pudukkottai District.
2.The Inspector of Police,
Thiruppanandal Police Station,
Pudukkottai District.
(Crime No.895 of 2021) : Respondents
PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401
of Cr.P.C, to call for the records pertaining to the order in Na.Ka.8434-2021-A4
dated 21.12.2021 passed by the first respondent and set aside the same.
For Petitioner : Mr.S.Vishnuvardhan
For Respondents : Mr.K.Sanjai Gandhi
Government Advocate (Criminal Side)
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CRL.R.C.(MD).No.576 of 2022
JUDGMENT
The Criminal Revision Case is directed against the order dated 21.12.2021
passed by the first respondent/The First Class Executive Magistrate and Revenue
Divisional Officer, Kumbakonam Division, Pudukkottai District, in Na.Ka.
8434-2021-A4, under Section 122(1)(b) of the Code of Criminal Procedure.
2. The first respondent, on the basis of the report of the second respondent,
initiated proceedings under Section 110 Cr.P.C., conducted enquiry and ordered
the petitioner to execute a bond under Section 110 Cr.P.C., on 31.08.2021 and on
that basis, the petitioner has been bound over and released, after executing a
bond, for maintaining good behaviour for a period of one year viz., from
31.08.2021 to 30.08.2022. Subsequently, a criminal case was registered against
the petitioner in Crime No.895 of 2021, for the offence punishable under Section
392 I.P.C., and the petitioner was arrested on 26.11.2021 and remanded to
judicial custody on the same day. The second respondent, by alleging that the
petitioner violated/breached the bond executed by him, has sent a
communication, requesting the first respondent to initiate necessary action
under Section 122(1)(b) Cr.P.C. Based on the said report of the second
respondent, the first respondent issued a show cause notice to the petitioner and
directed them to produce the petitioner on 13.12.2021. The first respondent after
enquiry, has passed the impugned order, dated 21.12.2021, cancelling the
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CRL.R.C.(MD).No.576 of 2022
security bond executed by the petitioner and ordered to detain him in prison until
the expiry of the period of bond viz., 30.08.2022. Aggrieved by the said order,
the petitioner has preferred the present revision.
3. Heard Mr.S.Vishnuvardhan, learned counsel for the petitioner and
Mr.K.Sanjai Gandhi, learned Government Advocate (Criminal Side) appearing
for the respondents.
4.The learned counsel for the petitioner would submit that the impugned
order has been passed without following the procedure laid down by this Court,
that the first respondent has not conducted proper enquiry as prescribed in the
law, that the petitioner's right to get legal assistance was denied, that no
opportunity was given to the petitioner to get the documents, that the first
respondent has failed to supply all the documents mentioned in the impugned
order, that the learned Magistrate has no power to invoke Section 122 (1)(b) of
Cr.P.C for the violation of the bond executed under Section 110 Cr.P.C and that
the personal liberty of the petitioner was seriously affected by the impugned
order passed by the first respondent.
5. The learned Government Advocate (Criminal Side) appearing for the
State would submit that the petitioner has been continuously and frequently
involving in various criminal activities and caused various problem against the
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CRL.R.C.(MD).No.576 of 2022
public peace and tranquillity, that during the pendency of the bond period, the
petitioner was involved in an offence for which, FIR came to be registered in
Crime No.895 of 2021, for the offence punishable under Section 392 I.P.C., that
since the petitioner has violated the bond, at the instance of the second
respondent, the first respondent has initiated the proceedings, that the first
respondent after conducting proper enquiry has passed the order on 21.12.2021,
cancelling the security bond and ordered to detain him till the expiry of the bond
period, that the petitioner is the habitual offender and four criminal cases are
pending against him as of now, that the petitioner was given sufficient
opportunities as per the procedure enumerated under Cr.P.C and that therefore,
the question of setting aside the order passed by the first respondent does not
arise at all.
6. No doubt, the second respondent in their status report has listed out four
cases pending against the petitioner on the file of the Thiruppanandal Police
Station.
7. The learned counsel for the petitioner would strongly contend that the
first respondent has failed to comply with the principles of natural justice and as
such, the impugned order is legally unsustainable and relied on a decision of this
Court in P.Sathish @ Sathish Kumar Vs. State represented by the Inspector of
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CRL.R.C.(MD).No.576 of 2022
Police, reported in 2019 (2) MWN (Cr.) 136 and the relevant passages are
extracted herein.
“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.
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CRL.R.C.(MD).No.576 of 2022
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.”
8. A learned Judge of this Court, after considering the various decisions of
this Court as well as the Honb'le Apex Court, has laid down the legal principles
to be followed in the proceedings initiated under Section 122(1) (b) of Cr.P.C
and further directed that the principles laid down are to be followed by all the
Executive Magistrates and in order to infuse uniform approach by all the
Executive Magistrates, the learned State Public Prosecutor was directed to
circulate the decision to the Government and the Government shall act upon the
principles as laid down above and issue necessary instructions to all the
designated Executive Magistrates to follow the principles strictly.
9. The above decision and the principles laid down therein are squarely
applicable to the case on hand.
10. It is evident from the impugned order that the first respondent has
summoned and examined the complainant, in which the case was registered in
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CRL.R.C.(MD).No.576 of 2022
Crime No.895 of 2021. It is pertinent to note that the first respondent/Magistrate,
in the impugned order, has not listed out the witnesses examined and the
documents produced and exhibited by both the parties.
11. As rightly contended by the learned counsel for the petitioner, it is
clearly evident from the impugned order that the first respondent has not
followed the legal principles laid down by this Court. It is further evident that
the petitioner is in judicial custody from 26.11.2021.
12. Considering the above, this Court has no hesitation to hold that the
impugned order is not good in law and the same is liable to be set aside.
13. In the result, the Criminal Revision is allowed and the impugned order
dated 21.12.2021 passed by the first respondent/The First Class Executive
Magistrate and Revenue Divisional Officer, Kumbakonam Division, Pudukkottai
District, in Na.Ka.8434-2021-A4, is hereby set aside and therefore, the petitioner
is directed to be released forthwith, unless his custody is required in connection
with any other case.
13.07.2022.
Index : Yes/No
Internet : Yes/No
SSL
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CRL.R.C.(MD).No.576 of 2022
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 First Class Executive Magistrate and
Revenue Divisional Officer,
Kumbakonam Division,
Pudukkottai District.
2.The Inspector of Police,
Thiruppanandal Police Station,
Pudukkottai District.
3. The Superintendent,
Central Prison,
Trichy.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court, Madurai.
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CRL.R.C.(MD).No.576 of 2022
K.MURALI SHANKAR, J.
SSL
PRE-DELIVERY ORDER MADE IN
CRL.R.C.(MD).No.576 of 2022
13.07.2022
https://www.mhc.tn.gov.in/judis
