Madras High Court
M.Thavaeshwaran vs The Executive Magistrate No.Ii/ on 7 February, 2022
Crl. R.C.(MD)No.96 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.02.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl. R.C.(MD)No.96 of 2022
and
Crl.M.P.(MD)No.1720 of 2022
M.Thavaeshwaran ... Petitioner
Vs.
1.The Executive Magistrate No.II/
The Thasildar,
Uthamapalayam, Theni District.
2.The Sate rep by
The Inspector of Police,
Chinnamanur Police Station,
Chinnamanur, Theni District.
3.The Superintendent of Prison,
District Prison,
Dindigul, Dindigul District. ...Respondents
Prayer : This Revision Case is filed under Sections 397 r/w. Section 401 of
Cr.P.C., to call for the records and set aside the judgment dated 18.12.2021
made in Na.Ka.No.10589/2021/A8 on the file of the learned Executive
Magistrate No.II/Thasildar. Uthamapalayam and allow the above revision.
For Petitioner : Mr.C.Jeganathan
For Respondents : Mr.S.Manikandan
Government Advocate(Crl.Side)
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Crl. R.C.(MD)No.96 of 2022
ORDER
This revision has been filed to set aside the judgment dated
18.12.2021 made in Na.Ka.No.10589/2021/A8 on the file of the learned
Executive Magistrate No.II/Thasildar. Uthamapalayam.
2. The learned counsel for the petitioner would submit that based on
the report submitted by the second respondent, the proceedings were initiated
under Section 110 Cr.P.C. by the first respondent on 08.10.2021. Accordingly,
the petitioner had executed a bond for maintaining good conduct for a period
of one year. The petition against the petitioner was registered in Crime No.
1283 of 2021 for the offence under Section 294(b), 323, and 506 (ii) on
14.12.2021 on the file of the second respondent. Based on the request made by
the second respondent, the petitioner was called for an enquiry on 15.12.2021
and on 16.12.2021 the petitioner had given a statement before the second
respondent. Based on the report, the first respondent without giving
opportunity to the petitioner. Based on the statement by the petitioner before
the second respondent, the impugned order was passed by committing the
petitioner under Section 122 (1) (b)of Cr.P.C. The petitioner is not furnished
with any documents and no legal assistance was provided to the petitioner.
Only on the basis of involvement in the subsequent Crime number, the
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Crl. R.C.(MD)No.96 of 2022
impugned order was passed. Therefore, the first respondent have failed to
mention his decision regarding the necessity for passing this order.
3. Per contra, the learned counsel for the respondents submitted that
the petitioner involved in two cases. He involved in Crime No.1283 of 2021
for the offence under Section 294(b), 323, 506(ii) IPC on the file of the second
respondent herein. He further submitted that given an opportunity of hearing
and conducted full fledged trial and impugned order was passed.
4. Heard the learned counsel for the petitioner and the learned
counsel for the respondent.
5. The first respondent passed the impugned order thereby ordered
the petitioner to be imprisoned for 196 days under Section 122(1)(b) of
Cr.P.C. It is relevant to read the Section 122(1)(b) of Cr.P.C. as follows :-
"122. Imprisonment in default of
security.:-
(1) (a) If any person ordered
to give security under section 106 or section 117
does not give such security on or before the date
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Crl. R.C.(MD)No.96 of 2022
on which the period for Which such security is to
be given commences, the shall, except in the case
next hereinafter mentioned, be committed to
prison, or, if he is already in prison, be detained in
prison until such period expires or until within
such period- he gives the security to the Court or
Magistrate who made the order requiring it.
(b) If any person after having executed a
bond without sureties for keeping the peace in
pursuance of an order of a Magistrate under
section 117, is proved, to the satisfaction of such
Magistrate or his successor- in- office, to have
committed breach of the bond, such Magistrate or
successor- in- office may, after recording the
grounds of such proof, order that the person be
arrested and detained in prison until the expiry of
the period of the bond and such order shall be
without prejudice to any other punishment or
forfeiture to which the said person may be liable
in accordance with law.
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Crl. R.C.(MD)No.96 of 2022
(2) When such person has been ordered
by a Magistrate to give security for a period
exceeding one year, such Magistrate shall, if such
person does not give such security as aforesaid,
issue a warrant directing him to be detained in
prison pending the orders of the Sessions Judge
and the proceedings shall be laid, as soon as
conveniently may be, before such Court.
(3) Such Court, after examining such
proceedings and requiring from the Magistrate
any further information or evidence which it
thinks necessary, and after giving the concerned
person a reasonable opportunity of being heard,
may pass such order on the case as it thinks fit:
Provided that the period (if any) for which any
person is imprisoned for failure to give security
shall not exceed three years."
The first respondent has powers to take preventive measures to
prevent the persons from indulging any criminal activities in order to keep the
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Crl. R.C.(MD)No.96 of 2022
peace and public tranquility. Under Section 122(3) of Cr.P.C. the Executive
Magistrate may direct the persons to execute bond up to three years, when they
breach the condition, without passing detention order under Section 122 (1)(b)
of Cr.P.C.
6. On perusal of the records would show that after registration of
FIR in Crime No.1283 of 2021 on the file of the second respondent, the
petitioner was arrested and remanded to Judicial custody. Thereafter, the
report from the second respondent, the first respondent issue summon to the
petitioner on 15.12.2021 to 16.12.2021. On receipt of the same, the petitioner
was appeared before the second respondent on 18.12.2021. Though the
impugned order stated that the petitioner was given an opportunity to engage a
person appear on behalf of him, no sufficient opportunity was given to the
petitioner to engage his counsel since on the date of appearance itself the order
was passed namely, 18.12.2021. Therefore, the first respondent failed to give
any opportunity to the petitioner to putforth this case. Except this statement
recorded by the first respondent. That apart no witness were examined except
the first respondent to conclude that the bond executed by him.
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Crl. R.C.(MD)No.96 of 2022
7. More over the satisfaction of the Magistrate has to be recorded in
the impugned order and it should be based upon the materials produced by the
police officers. As per the Section 122(3) of Cr.P.C., the first respondent
before cancelling the bond executed by the petitioner, he shall be satisfied that
the person has breached the bond conditions and he must also record the
satisfaction for proof. Before passing the order, he must apply his mind and
pass orders and it could not be passed mechanically. Further the detention
order must disclose the grounds of proof and satisfaction of the Magistrate and
it has to be recorded in the impugned order and the said satisfaction should be
based on the materials which was produced by the police officer concerned as
well as the contra materials if any, that could be produced by the person,
whom against the proceeding has sought to be invoked.
8. The perusal of impugned order would show that the first
respondent passed the said order without application of mind. It is also seen
that no explanation is called, for the violation of the terms of the bound from
the petitioner and no hearing opportunity was given to the petitioner before
cancelling the bond executed by him. It is the violation of Article 21 of
Constitution of India. No one shall be deprived of his life or personal liberty
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Crl. R.C.(MD)No.96 of 2022
except according to procedure established by law. As such, this Court finds
that the impugned order is vitiated and it is liable to be set aside.
9. In fine, the impugned order passed by the first respondent in
Na.Ka.No.10589/2021/A8, dated 18.12.2021 is set aside and the Criminal
Revision Case is allowed. Consequently, the connected Miscellaneous Petition
is closed.
07.02.2022
sn
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.
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Crl. R.C.(MD)No.96 of 2022
To
1.The II Class Executive Magistrate,
cum Tahsildar, Dindigul West,
Dindigul.
2.The Sub-Inspector of Police,
Thadikombu Police Station,
Dindigul.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl. R.C.(MD)No.96 of 2022
G.K.ILANTHIRAIYAN, J.
sn
Crl. R.C.(MD)No.96 of 2022
07.02.2022
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