Madras High Court
Gopi @ Gopinath Durga vs The Sub-Divisional Executive ... on 10 March, 2022
Crl.R.C(MD)No.287 of 2021
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 10.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.287 of 2021
Gopi @ Gopinath Durga ... Petitioner
Vs.
1.The Sub-Divisional Executive Magistrate cum
The Revenue Divisional Officer,
Palani.
2.State by,
The Inspector of Police,
Palani Town Police Station,
Palani,
Dindigul District. ... Respondents
PRAYER: Criminal Revision Case filed under Section 397 read with
Section 401 of the Code of Criminal Procedure, to call for the
records of the first respondent in M.C.38/2018/A7, dated
20.01.2021 and set aside the same.
For Petitioner : Mr.M.Karunanithi
For Respondents : Ms.M.Aasha
Government Advocate (Crl. Side)
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Crl.R.C(MD)No.287 of 2021
ORDER
This revision has been filed as against the order passed in
M.C.38/2018/A7, dated 20.01.2021, on the file of the first
respondent, thereby detained the petitioner for the remaining bond
period.
2.The petitioner involved in a case in Crime No.398 of 2018
registered for the offences under Sections 147, 148, 447 and 302 of
I.P.C. In order not to indulge in future crimes, he was directed to
execute bond under Section 110 of Cr.P.C. Accordingly, the
petitioner was directed to appear on 25.10.2018 as to why the
petitioner should not execute the bond to maintain peace and
tranquility. Accordingly, he appeared and enquiry was conducted as
contemplated under Section 116 of Cr.P.C. Thereafter, under Section
112 of C.P.C, the order was passed and directed to execute the
bond. Accordingly, the petitioner executed the bond for a period of
three years. While pending the bond period, the petitioner again
involved in Crime No.1523 of 2020 on the file of the second
respondent registered for the offences under Sections 147, 365,
323 and 364(A) of I.P.C. In pursuant to the crime, he was arrested
and remanded to judicial custody on 08.01.2020. It was informed
by the second respondent before the first respondent to initiate
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Crl.R.C(MD)No.287 of 2021
action under Section 122(1)(b) of Cr.P.C for violation of bond
condition. On receipt of the same, the first respondent issued notice
to the petitioner on 18.01.2021 to appear for the enquiry to be
conducted on 19.01.2021. Accordingly, the petitioner was produced
before the first respondent for enquiry on 19.01.2021. On the
enquiry, he sought for an opportunity to examine the Government
witnesses and permission to engage counsel to putforth his case.
However, the first respondent on the very next day ie., on
20.01.2021, without giving an opportunity of hearing to the
petitioner and without giving an opportunity to engage the counsel
on his behalf, passed the impugned order.
3.Heard the learned counsel appearing for the petitioner and
the learned Government Advocate (Criminal Side) appearing for the
respondents and perused the materials available on record.
4.In this regard, it is relevant to rely upon the Judgment of
this Court reported in 2019 (2) MLJ (Criminal) 556 – P.Sathish
@ Sathish Kumar Vs. State, represented By The Inspector of
Police, Law and Order, Chennai and Another and this Court
issued specific directions to follow the legal principles which reads
as follows:-
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Crl.R.C(MD)No.287 of 2021
“a. 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.
b. 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).
c. 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.
d. The Executive Magistrate shall inform the
person about his right to have the assistance of a
lawyer for defending him in the enquiry.
e. 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.
f. At the enquiry, an opportunity should be
given to the person to:
(i) Cross-examine the official witnesses, if any
and
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Crl.R.C(MD)No.287 of 2021
(ii) produce documents and witnesses, if any,
in support of his case.
g. 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.
h. 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.
i. A copy of the order should be furnished to
the person along with the materials produced at the
enquiry.
j. 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.”
5.The above legal principles as evolved to be followed by all
the Executive Magistrate concerned as directed by this Court.
However, as stated above, no opportunity of hearing to the
petitioner and no opportunity to engage the counsel to appear on
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Crl.R.C(MD)No.287 of 2021
his behalf were given to the petitioner and it amounts to clear
violation of principles of natural justice.
6.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.
7.On a perusal of the impugned order would show that the
first respondent passed the impugned order without application of
mind and there is no explanation called for the violation of the
terms of the bond from the petitioner and no opportunity of hearing
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Crl.R.C(MD)No.287 of 2021
was given to the petitioner. That apart, the impugned order further
says that there is an appeal remedy and the petitioner can appeal
before the District Judge and the District Collector within a period of
30 days as against the order passed under Section 122(1)(b) of
Cr.P.C. It is completely without application of mind and it is nothing
but cut and paste from other orders. Therefore, it shows that the
first respondent passed the impugned order without application of
mind and as such, it cannot be sustained as against the petitioner
and it is liable to be set aside.
8.Accordingly, the impugned order passed in M.C.38/2018/A7,
dated 20.01.2021, on the file of the first respondent is set aside and
this Criminal Revision Case is allowed. No costs.
10.03.2022
Index : Yes/No
Internet : Yes
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.287 of 2021
G.K.ILANTHIRAIYAN, J.
ps
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 Sub-Divisional Executive Magistrate cum
The Revenue Divisional Officer,
Palani.
2.The Inspector of Police,
Palani Town Police Station,
Palani,
Dindigul District.
Order made in
Crl.R.C(MD)No.287 of 2021
10.03.2022
https://www.mhc.tn.gov.in/judis
