Madras High Court
Jeyaprabhu vs The Ii Class Executive Magistrate ... on 11 November, 2022
Crl.R.C.(MD).No.1030 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.11.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.1030 of 2022
and Crl.M.P.(MD).No.12932 of 2022
Jeyaprabhu .. Petitioner/Accused
Vs.
1.The II Class Executive Magistrate /
Revenue Tahsildar,
Uthamapalayam,
Theni District.
Na.Ka.No.7544/2022/A8.
2.The Inspector of Police,
Koodalur Police Station,
Theni District. .. Respondents/Complainants
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
proceedings in Na.Ka.No.7544/2022/A8, dated 29.07.2022, on the file of
the 1st respondent and set aside the same.
For Petitioner : Mr.S.Muniyandi
For Respondents : Mr.S.Manikandan
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Case has been filed to set aside the order,
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Crl.R.C.(MD).No.1030 of 2022
dated 29.07.2022, passed by the first respondent, in Na.Ka.No.
7544/2022/A8.
2.The proceedings under Section 122(1)(b) has been initiated against
the petitioner, for violation of bond executed under Section 110 Cr.P.C.
Reading of the order shows that there is complete non-application of mind.
It has been stated that after executing the bond a case in Crime No.252 of
2022 has been registered on the file of the second respondent on 19.07.2022
for the offence punishable under Section 195(A), 506(i) of IPC and on
29.07.2022 this order has been passed by the first respondent imposing
sentence of punishment of imprisonment, 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.Even though in unnumbered paragraph it has been observed by the
first respondent to the effect that sufficient opportunity was given to the
revision petitioner to engage Advocate and defend him and the learned
Additional Public Prosecutor would submit that on the date of production of
the revision petitioner before the respondent, the statement was recorded
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Crl.R.C.(MD).No.1030 of 2022
and the order has been passed on the very same date. Perusal of records
shows that on a modification petition filed by the prosecution, as per order
in Crl.M.P.(MD)Nos.7615 and 7616 of 2022, this Court directed the
revision petitioner to stay in Chennai and report before Flower Bazaar,
Police Station daily, in Crime No.147 of 2020. However, the learned
counsel for the revision petitioner submitted that order copy was not
uploaded and he is not in a position to comply the order and before that he
was arrested on 20.07.2022, in connection with Crime No.252 of 2022 and
remanded to judicial custody. During the above said custody period only,
this present proceedings has been initiated.
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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Crl.R.C.(MD).No.1030 of 2022
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.
9.A copy of the order should be furnished to the person
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Crl.R.C.(MD).No.1030 of 2022
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 dated 29.07.2022, passed by the first
respondent, Theni District, in Na.Ka.No.7544/2022/A8, is hereby quashed.
However, liberty is granted to the respondent herein to initiate fresh action,
if so required, by following the procedure that has been set out in the above
said Judgment. Consequently, connected miscellaneous petition is closed.
11.11.2022
Index : Yes / No
Internet : Yes / No
TM/PNM
To
1.The II Class Executive Magistrate / Revenue Tahsildar,
Uthamapalayam, Theni District.
2.The Inspector of Police, Koodalur Police Station, Theni District.
3.The Superintendent of Prison, District Prison, Theni.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1030 of 2022
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1030 of 2022
G.ILANGOVAN,J.
TM/PNM
Crl.R.C.(MD).No.1030 of 2022
11.11.2022
https://www.mhc.tn.gov.in/judis
