Crl.R.C.(MD).No.1024 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.1024 of 2022
and
Crl.M.P(MD).No.12858 of 2022
Chinnasamy @ Chinnan .. Petitioner
Vs.
1.The II-Class Executive Magistrate Cum
Revenue Tahsildhar,
Andipatti,
Theni District.
2.The State Through,
The Inspector of Police,
Kadamalaikundu Police Station,
Varusanadu.
3.The Superintendent of Prison,
District Jail,
Theni. ... Respondents
PRAYER: This Civil Revision Case is filed under Sections 397 r/w 401 of
the Criminal Procedure Code, to call for the records pertaining to the order
of the first respondent by his proceedings in Na.Ka.No.6713/2022/A4 dated
06.09.2022 and set aside the same as illegal.
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Crl.R.C.(MD).No.1024 of 2022
For Petitioner : Mr.S.Sivaprakash
For Respondents : Mr.S.Manikandan
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Case has been filed to set aside the order,
dated 06.09.2022, passed by the 1st respondent/ II-Class Executive
Magistrate Cum Revenue Tahsildhar, Andipatti, Theni District, in
Na.Ka.No.6713/2022/A4.
2.The proceedings under Section 122(1)(b) has been initiated against
the petitioner, for violation of bond executed under Section 110(e) Cr.P.C.
Reading of the order shows that there is complete non-application of mind.
It has been stated that the summon was issued to the petitioner and on
06.09.2022 this order has been passed by the first respondent, which is not
reasonable and proper. According to the learned counsel for the petitioner,
before passing the above said order, no enquiry was undertaken as
contemplated under Section 122(1)(b) of Cr.P.C.
3.The learned Government Advocate(Crl.side) appearing for the
respondent submitted that the procedure has been followed properly.
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According to the learned Additional Public Prosecutor, statement of
witnesses has been recorded and sufficient opportunities were given to him.
The learned Government Advocate(Crl.side) circulated a copy of the
statement recorded from the petitioner. Though the petitioner has executed
sureties before the first respondent, in violation of his own bond, he has
involved in the offences in Crime No.234/2022 before the second
respondent police. Therefore, the impugned order has been passed by the
first respondent.
4.The learned counsel for the petitioner submitted that even though
subsequent happenings are there, the procedure has not been properly
followed. For that purpose, the learned counsel for the petitioner relied
upon 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.
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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.
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.
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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.”
5.In view of the above, this petition is liable to be allowed and
accordingly, allowed and the order passed by the 1st respondent/the II Class
Executive Magistrate Cum, Revenue Tahsildhar, Andipatti, Theni District,
under Section 122(1)(b) Cr.P.C. in Na.Ka.No.6713/2022/A4, dated
06.09.2022, is hereby quashed. However, liberty is granted to the
respondents herein to initiate fresh action, if so required, by following the
procedure that has been set out in the above said Judgment. Consequently,
the connected Miscellaneous Petition is closed.
01.11.2022
Index : Yes / No Internet : Yes / No tta
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To,
1.The II-Class Executive Magistrate Cum Revenue Tahsildhar, Andipatti, Theni District.
2.The State Through, The Inspector of Police, Kadamalaikundu Police Station, Varusanadu.
3.The Superintendent of Prison, District Jail, Theni.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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G.ILANGOVAN,J.
tta
Crl.R.C.(MD).No.1024 of 2022
01.11.2022
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