Madras High Court

Rjapandian @ Raja vs The Sub-Divisional ... on 29 October, 2021

                                                                                   Crl.R.C.(MD)No.768 of 2021




                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED : 29.10.2021

                                                          CORAM:

                                   THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

                                             Crl.R.C.(MD)No.768 of 2021
                                                        and
                                             Crl.M.P.(MD)No.9055 of 2021

                     Rjapandian @ Raja                                    .. Petitioner

                                                            Vs.

                     1.The Sub-Divisional Magistrate-cum-
                       Revenue Divisional Officer,
                       Kovilpatti,
                       Tuticorin District.

                     2.The Inspector of Police,
                       Ottapidaram Police Station,
                       Tuticorin District.                                 .. Respondents

                     PRAYER: This Criminal Revision Petition is filed under Section 397 r/w.
                     401 of the Code of Criminal Procedure, to call for the records and set aside
                     the order dated 31.08.2021 made in Na.Ka.A1/4838/2021 on the file of the
                     first respondent and release the petitioner namely Rajapandian @ Raja,
                     S/o.Periyasamy aged about 39 years detained in Central Prison, Madurai.
                                    For Petitioner            : Mr.C.Mayilvahana Rajendran
                                    For Respondents           : Mr.M.Muthumanikkam
                                                                Government Advocate (Crl.side)


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https://www.mhc.tn.gov.in/judis/
                                                                                    Crl.R.C.(MD)No.768 of 2021




                                                             ORDER

Mr.M.Muthumanikkam, learned Government Advocate (Crl.side)

takes notice on behalf of the respondents. By consent this criminal revision

case is taken up for hearing today for consideration.

2. The present Criminal Revision Case has been filed praying to call

for the records pertaining to the order of conviction dated 31.08.2021,

passed by the first respondent / Sub-Divisional Executive Magistrate-cum-

Revenue Divisional Officer, Kovilpatti, vide Proceedings in

Na.Ka.A1/4838/2021 and to set aside the same as illegal.

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

learned Government Advocate (Crl.side) appearing for the respondents.

4.According to the petitioner, way back in the year 2020, the second

respondent registered a case against the petitioner under Section 110

Cr.P.C. in L.I.R.No.76/2020 and thereafter, a proceeding was initiated

against him by the first respondent under Sections 111 and 113 Cr.P.C.

Subsequently, on 09.11.2020 the first respondent had passed an order under

https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.768 of 2021

Sections 111 and 113 of Cr.P.C. against the petitioner, directing him to

execute a bond of Rs.15,000/- for a period one year.

5.Pursuant to the said order passed by the first respondent, on the

same day, the petitioner had executed a bond under Section 117 Cr.P.C.

While so, on 11.08.2021 the second respondent registered yet another case

in Crime No.325 of 2021 against the petitioner for the offences punishable

under Sections 406 and 420 I.P.C. and thereafter, the first respondent had

passed the impugned order dated 31.08.2021, alleging that the petitioner has

breached the bond, hence, cancelled the bond and also ordered to detain

him. Accordingly, the petitioner has been convicted and sentenced till the

order is passed by any other Court.

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

before this Court with this Criminal Revision Case.

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

is that, without providing any opportunity to defend the case, the first

respondent has passed the order of conviction and no show cause notice was

issued before ordering to execute a bond, which are erroneous in law.

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8.Per contra, the learned Government Advocate (Crl.side) appearing

for the respondents Police would contend that the order of conviction

passed by the first respondent is well within the procedure contemplated

under Chapter VIII of the Code of Criminal Procedure, 1973.

9.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 convicting the revision petitioner, he has not been provided with an

opportunity to defend the allegation levelled against him. Further, no show

cause notice was issued to the petitioner before ordering to execute a bond.

10.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

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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;

(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

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Territory of Arunachal Pradesh.

issued various directions to the Executive Magistrate and observed as

follows:-

''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

https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.768 of 2021

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 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.?''

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

a case that when at the time of passing an order of conviction, the petitioner

was not provided with an opportunity to defend his case. In this regard,

there was no denial on the side of the learned Government Advocate

(Crl.side) that before convicting the petitioner, reasonable opportunity was

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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 legal assistance by

appointing a counsel, who is nominated by the District Legal Services

Authority.

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