Madras High Court
Moorthy vs The Ii Class Executive Magistrate ... on 13 May, 2022
CRL.R.C.(MD).No.507 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 16.06.2022
Delivered on : 27.06.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.R.C.(MD).No.507 of 2022
and
CRL.M.P.(MD)No.6354 of 2022
Moorthy : Petitioner
Vs.
1.The II Class Executive Magistrate cum
Tahsildar, Palani Taluk,
Dindigul District.
2.The Sub-Inspector of Police,
Palani Adivaram Police Station,
Dindigul District
3.The Superintendent of Prison,
Central Prison, Madurai. : Respondents
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 proceedings in M.C.No.
76/2020/A1 on the file of the first respondent, dated 13.05.2022 and set aside
the same.
For Petitioner : Mr.Adithya Vijayalayan, N.
For Respondents : Mr.K.Sanjai Gandhi,
Government Advocate (Criminal Side)
https://www.mhc.tn.gov.in/judis
1/10
CRL.R.C.(MD).No.507 of 2022
ORDER
The Criminal Revision Case is directed against the order, dated
13.05.2022 passed by the first respondent/The II Class Executive Magistrate
cum Tahsildar, Palani Taluk, Dindigul District in M.C.No.76/2020/A1, 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 109 Cr.P.C, in LIR No.11/2022
on 09.03.2022, conducted enquiry and ordered the petitioner to execute a bond
for maintaining good behaviour for a period of one year viz., from 09.03.2022
to 08.03.2023. During the pendency of the bond period, the petitioner was
involved in a criminal offence by selling the Government banned Lottery
Tickets for which, FIR came to be registered in Crime No.219 of 2022 for the
offence punishable under Sections 7(1)(3) Lottery Act on 06.05.2022 on the file
of the Palani Town Police Station and the petitioner was arrested and remanded
to judicial custody on 06.05.2022. The second respondent, by alleging that the
petitioner violated/breached the bond executed by him, has sent a requisition,
dated 08.05.2022, requesting the first respondent to initiate necessary action
under Section 122(1)(b) Cr.P.C. Based on the said report sent by the second
respondent Police, the first respondent issued a show cause notice to the
petitioner through Superintendent of Sub Jail, Palani and directed them to
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CRL.R.C.(MD).No.507 of 2022
produce the petitioner before the first respondent on 13.05.2022. The first
respondent after enquiry, has passed the impugned order dated 13.05.2022,
cancelling the security bond executed by the petitioner on 09.03.2022 and
ordered to detain him in prison until the expiry of the period of bond viz.,
08.03.2023. Aggrieved by the said order, the petitioner has preferred the
present revision.
3. Heard Mr.N.Adithya Vijayalayan, 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 summons
was issued to the petitioner asking to appear on 13.05.2022 for enquiry under
Section 122(1)(b) Cr.P.C and the impugned order was passed on the same day;
that the first respondent has not provided sufficient opportunity to the petitioner
to contest the proceedings; that the first respondent has not provided the
materials sought to be relied upon to the petitioner before passing the impugned
order; that the petitioner was not informed and he was not provided to have an
assistance of an Advocate to contest the proceedings, that the first respondent
has not recorded his satisfaction to show that the petitioner has violated the
bond conditions 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.507 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 many criminal cases have registered
against him by various Police Stations; that during the pendency of the bond
period, the petitioner was involved in selling of Government banned Lottery
Tickets for which, FIR came to be registered in Crime No.219 of 2022 for the
offence punishable under Sections7(1)(3) Lottery Act; 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 13.05.2022, cancelling the
security bond and ordered to detain him till the expiry of the bond period, that
the petitioner is a habitual offender and five criminal cases are pending against
him as of now, that the petitioner was given sufficient opportunities to contest
the proceedings in accordance with the Code of Criminal Procedure and that
therefore, the question of setting aside the order passed by the first respondent
does not arise at all.
6.As rightly pointed by the learned Government Advocate (Criminal
Side), the second respondent in his counter affidavit has listed out five cases
pending against the petitioner on the file of the Palani Town Police Station and
Palani Adivaram Police Station.
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CRL.R.C.(MD).No.507 of 2022
7.The learned counsel for the petitioner would submit that the first
respondent without giving sufficient opportunities to contest the proceedings
and without giving opportunity to engage an Advocate, has failed to comply
with the principle 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.
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CRL.R.C.(MD).No.507 of 2022
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.
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 Hon'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.507 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 Sub-Inspector of Police, Palani Town Police
Station, in which, FIR came to be registered in Crime No.219 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.It is evident from the records that the first respondent has directed the
Superintendent of Sub Jail to produce the petitioner before him on 13.05.2022,
that the first respondent has completed enquiry and passed the impugned order
on that day itself.
12.It is further evident that the first respondent has examined the Sub-
Inspector of Police, Palani Town Police Station and the petitioner/accused and
in the impugned order, after recording the evidence adduced by the said two
witnesses, without any discussion, has concluded in the last paragraph by
giving title as “Final judgment” that though the petitioner has executed a bond
for maintaining a good behaviour for a period of one year on 09.03.2022,
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CRL.R.C.(MD).No.507 of 2022
during the pendency of the period, he committed an offence, for which, FIR
came to be registered in Crime No.219 of 2022, dated 06.05.2022 and has come
to the decision that the petitioner has violated the bond and passed the
impugned order.
13.As rightly contended by the learned counsel for the petitioner, it is
clearly evident that the first respondent has not followed the legal principles
laid down by this Court. 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.
14.In the result, the Criminal Revision is allowed and the impugned
order dated 26.04.2022 passed by the first respondent/The II Class Executive
Magistrate cum Tahsildar, Palani Taluk, Dindigul District in M.C.No.
76/2020/A1, is hereby set aside and therefore, the petitioner is directed to be
released forthwith, unless his custody is required in connection with any other
case. Consequently, connected Miscellaneous Petition is closed.
27.06.2022
Index : Yes/No
Internet : Yes/No
das
https://www.mhc.tn.gov.in/judis
CRL.R.C.(MD).No.507 of 2022
To
1.The II Class Executive Magistrate cum
Tahsildar, Palani Taluk, Dindigul District.
2.The II Class Executive Magistrate cum
Tahsildar, Palani Taluk, Dindigul District.
3.The Sub-Inspector of Police,
Palani Adivaram Police Station,
Dindigul District
4.The Superintendent of Prison,
Central Prison, Madurai.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
6.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
CRL.R.C.(MD).No.507 of 2022
K.MURALI SHANKAR, J.
das
CRL.R.C.(MD).No.507 of 2022
and
CRL.M.P.(MD)No.6354 of 2022
27.06.2022
https://www.mhc.tn.gov.in/judis
