Madras High Court

Nari @ Narendran vs The Ii Class Executive ... on 26 October, 2021

                                                                                   Crl.R.C.(MD)No.742 of 2021




                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED : 26.10.2021

                                                          CORAM:

                                   THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

                                            Crl.R.C.(MD)No.742 of 2021
                                                       and
                                       Crl.M.P.(MD)Nos.8548 and 8549 of 2021

                     Nari @ Narendran                                            .. Petitioner
                                                            Vs.

                     1.The II Class Executive Magistrate-cum-
                        Tahsildar, Dindigul West,
                       Dindigul.

                     2.The Inspector of Police,
                       Dindigul West Police Station,
                       Dindigul City,
                       Dindigul.                                                  .. Respondents
                     PRAYER: This Criminal Revision Petition is filed under Section 397 r/w.
                     401 of the Code of Criminal Procedure, to call for records and set aside the
                     order passed by the learned II Class Magistrate-cum-Tashildar in M.C.No.
                     69/2021/A5, dated 23.09.2021 and allow this criminal revision petition.
                                    For Petitioner            : Mr.T.Amjadkhan

                                    For Respondents           : Mr.E.Antony Sahaya Prabahar
                                                                Additional Public Prosecutor




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https://www.mhc.tn.gov.in/judis/
                                                                                    Crl.R.C.(MD)No.742 of 2021




                                                          ORDER

The present Criminal Revision Case has been filed praying to call for

the records pertaining to the order of conviction dated 23.09.2021, passed

by the first respondent / II Class Executive Magistrate-cum-Tahsildar, vide

Proceedings in M.C.No.69/2021/A5 and to set aside the same as illegal by

allowing this Criminal Revision Case.

2.I have heard the learned counsel appearing for the petitioner and the

learned Additional Public Prosecutor appearing for the respondents.

3.According to the petitioner, way back in the year 2017, the second

respondent registered a case against him in Crime No.239 of 2017 for the

offence under Section 107 Cr.P.C. and thereafter, the second respondent on

assumption that the petitioner will disturb the public, initiated 110(e)

Cr.P.C. proceeding in L.I.R.No.38 of 2021 and produced the petitioner

before the first respondent on 26.07.2021 and the petitioner was directed to

execute a bond for good behaviour for a period of six months i.e., upto

25.01.2022. After execution of the bond, on 22.08.2021 a case in Crime

No.501 of 2021 was registered against the petitioner under Sections 341,

https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.742 of 2021

307 and 506(ii) I.P.C. and thereafter, he was released on bail. Therefore, on

breach of the bond, the first respondent invoked Section 122(1)(b) Cr.P.C.

and issued summons to the petitioner to appear before him on 23.09.2021

and on the same day, the first respondent passed the impugned order and

sentenced the petitioner to remain in jail for the remaining period of bond

executed by him.

4.Challenging the said conviction and sentence, the petitioner is

before this Court with this Criminal Revision Case.

5.The first and foremost contention raised by the petitioner's counsel

is that, without providing any opportunity to produce both oral and

documentary evidence, the first respondent has passed the order of

conviction in a hurried manner and no details about the cross-examination

by the petitioner were stated in the impugned order, which are erroneous in

law.

6.Per contra, the learned Additional Public Prosecutor appearing for

the respondents Police would contend that the order of conviction passed by

https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.742 of 2021

the first respondent is well within the procedure contemplated under

Chapter VIII of the Code of Criminal Procedure, 1973.

7.Now, on considering the rival submissions made by the learned

counsels appearing on either side, it is an admitted fact that while at the time

of passing the impugned order, the petitioner has not been provided with an

opportunity to produce documents and evidence on his side.

8.At this juncture, it would be relevant to see the order of this Court,

dated 13.02.2019, passed in Crl.R.C.No.137 of 2018 etc. batch. While at

the time of passing orders in the said Criminal Revision Cases, this Court

after referring various judgments, viz.,

(i) 1980 (Supp) Supreme Court Cases 649 - Gopalanachari Vs. State

of Kerala;

(ii) CDJ 2016 MHC 4491 - Bala @ Balakrishnan Vs. The

Administrative Executive Magistrate-cum-Deputy Commissioner, Trichy

City and others;

(iii) CDJ 2016 MHC 4709 - Balamurugan Vs. State, Rep. by the

Inspector of Police and another;

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(iv) Order in Crl.R.C.No.620 of 2017, dated 13.06.2017 [Victor Vs.

State, Rep. by the Inspector of Police, J-11, Kannagi Nagar (L & O) Police

Station, Chennai;

(v) CDJ 2017 MHC 4350 - Selvam @ Selvaraj Vs. The Executive

Magistrate-cum-Deputy Commissioner of Police (Law & Order, Crime and

Traffic), Tiruppur and another;

(vi) CDJ 2017 MHC 5939 - Sathish Kumar Vs. State, Rep. by the

Inspector of Police, Tiruchirappalli City and another;

(vii) Order of this Court, dated 31.08.2017 in Crl.R.C.No.1132 of

2017 (Mulla @ Sivakumar Vs. State, Rep. by the Inspector of Police and

another);

(viii) CDJ 2017 MHC 7784 - M.Angkumar Vs. The Executive

Magistrate-cum-Deputy Commissioner of Police, Law and Order, Madurai

and others; and

(ix) AIR 1986 Supreme Court 991 -Suk Das and another Vs. Union

Territory of Arunachal Pradesh.

issued various directions to the Executive Magistrate and observed as

follows:-

https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.742 of 2021

''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.

https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.742 of 2021

8.An order u/s.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 circumstance, 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.?''

9.Applying the ratio laid down in the above referred order, here it is a

case that when at the time of awarding conviction, the petitioner has not

been provided with an opportunity to produce both oral and documentary

evidence on his side. In this regard, there was no denial on the side of the

learned Additional Public Prosecutor that before convicting the petitioner,

reasonable opportunity was not given to him. Under the constitutional

mandate, it is for the first respondent to ensure that if the petitioner is not

enough to face trial with full of legal knowledge, he has to be provided with

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legal assistance by appointing a counsel, who is nominated by the District

Legal Services Authority.

10.In this case, no such opportunity was given to the petitioner by