Ondi @ Ollikuchi vs The Second Class Administrative ...
2022 Latest Caselaw 765 Mad

                                                                       CRL.R.C.(MD).No.566 of 2022

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                RESERVED ON : 11.07.2022

                                              PRONOUNCED ON:14 .07.2022

                                                    CORAM

                            THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

                                         CRL.R.C.(MD).No.566 of 2022


                Ondi @ Ollikuchi                                    : Petitioner


                                                      Vs.

                1.The Second Class Administrative Magistrate cum
                      Revenue Tahsildhar,
                  Uthamapalayam,
                  Theni District.                              : 1st Respondent / Executive
                                                                    Magistrate
                2.The Inspector of Police,
                  Chinnamanur Police Station,
                  Theni District.
                  (LIR No.68 of 2021)                          : 2nd Respondent/Complainant

                3.The Superintendent,
                  District Prison,
                  Theni.                                           : 3rd Respondent/Respondent

                PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401
                of Cr.P.C, to call for the records relating to the order of the first respondent by
                his proceedings in Na.Ka.No.337/2022/A8 dated 13.01.2022 and set aside the
                same as illegal and allow the above Criminal Revision Petition as prayed for.
                                   For Petitioner     : Mr.M.Jegadeesh Pandian
                                   For Respondents : Mr.K.Sanjai Gandhi
                                                    Government Advocate (Criminal Side)
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                                                                           CRL.R.C.(MD).No.566 of 2022


                                                       JUDGMENT

The Criminal Revision Case is directed against the order dated 13.01.2022

passed by the first respondent/The Second Class Administrative Magistrate cum

Revenue Tahsildar, Uthamapalayam, Theni District, in Na.Ka.No.337/2022/A8,

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., in LIR No.68 of 2021 on

16.09.2021, conducted enquiry and ordered the petitioner to execute a bond

under Section 110 Cr.P.C., on 25.09.2021 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 25.09.2021 to 24.09.2022.

Subsequently, a criminal case was registered against the petitioner in Crime No.

21 of 2022, for the offences punishable under Sections 294(b), 323 and 506(ii)

I.P.C., and the petitioner was arrested on 10.01.2022 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

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CRL.R.C.(MD).No.566 of 2022

produce the petitioner on 11.01.2022. The first respondent after enquiry, has

passed the impugned order, dated 13.01.2022, cancelling the security bond

executed by the petitioner and ordered to detain him in prison until the expiry of

the period of bond viz., 24.09.2022. Aggrieved by the said order, the petitioner

has preferred the present revision.

3. Heard Mr.M.Jegadeesh Pandian, 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.

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CRL.R.C.(MD).No.566 of 2022

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

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.21 of 2022, for the offences punishable under Sections 294(b), 323

and 506(2) 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

13.01.2022, cancelling the security bond and ordered to detain him till the expiry

of the bond period, that the petitioner is the habitual offender and six 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 six

cases pending against the petitioner on the file of the Chinnamanur Police

Station.

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CRL.R.C.(MD).No.566 of 2022

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

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

CRL.R.C.(MD).No.566 of 2022

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.

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.

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CRL.R.C.(MD).No.566 of 2022

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 defacto complainant, in which the case was

registered in Crime No.21 of 2022. 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 10.01.2022.

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 13.01.2022 passed by the first respondent/The Second Class

Administrative Magistrate cum Revenue Tahsildar, Uthamapalayam, Theni

District, in Na.Ka.No.337/2022/A8, is hereby set aside and therefore, the

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CRL.R.C.(MD).No.566 of 2022

petitioner is directed to be released forthwith, unless his custody is required in

connection with any other case.

14.07.2022.

                Index        : Yes/No
                Internet : Yes/No
                SSL

                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 Second Class Administrative Magistrate cum Revenue Tahsildhar, Uthamapalayam, Theni District.

2.The Inspector of Police, Chinnamanur Police Station, Theni District.

3.The Superintendent, District Prison, Theni.

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.566 of 2022

K.MURALI SHANKAR, J.

SSL

PRE-DELIVERY ORDER MADE IN

CRL.R.C.(MD).No.566 of 2022

14.07.2022

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