Madras High Court
Sudharson vs The Sub Divisional ... on 11 November, 2022
Crl.R.C.(MD).No.1053 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.1053 of 2022
and Crl.M.P.(MD).No.13290 of 2022
Sudharson .. Petitioner
Vs.
1.The Sub Divisional Magistrate/Revenue Divisional Officer,
Thoothukudi,
Thoothukudi District.
Aa1/110/M.C.No.228/2022.
2.The Inspector of Police,
Thoothukudi North Police Station,
Thoothukudi District. .. Respondents
PRAYER: This Civil Revision Case is filed under Sections 397 (3) r/w 401
of the Criminal Procedure Code, to call for the records in Aa1/110/M.C.No.
228/2022, dated 19.10.2022, on the file of the 1st respondent and set aside
the same.
For Petitioner : Mr.R.Mariappan
For Respondents : Mr.S.Manikandan
Government Advocate (Crl. Side)
1/6
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Crl.R.C.(MD).No.1053 of 2022
ORDER
This Criminal Revision Case has been filed against the order passed
by the first respondent in Aa1/110/M.C.No.228/2022, dated 19.10.2022.
2.The proceedings has been initiated under Section 122 (1)(b)Cr.P.C.,
stating that this petitioner is involved in illegal transporting of Ganja.
Reading of the order shows that there is complete non-application of mind.
It has been stated that on 19.10.2022 the above said order has been passed
only based on the FIR in Crime No.460 of 2022 on the file of the second
respondent registered for the offence punishable under Sections 8(c) r/w
20(b)(ii)(B) of NDPS Act and no enquiry was undertaken as contemplated
under Section 122 (1)(b) of Cr.P.C.
3.The learned Additional Public Prosecutor appearing for the
respondent submitted that the procedure has been followed properly.
According to the learned Additional Public Prosecutor, the petitioner was
summoned and enquired on 18.10.2022 and sufficient opportunity was
given to him. Though the petitioner has executed sureties before the first
respondent, he again involved in illegal transportation of Ganja. Therefore,
the impugned order has been passed by the first respondent.
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Crl.R.C.(MD).No.1053 of 2022
4.The learned counsel for the petitioner submitted that the first
respondent has not given any notice to the petitioner. 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.
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
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Crl.R.C.(MD).No.1053 of 2022
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
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 first respondent in
Aa1/110/M.C.No.228/2022, dated 19.10.2022, is hereby set aside.
However, liberty is granted to the respondent herein to initiate fresh action,
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Crl.R.C.(MD).No.1053 of 2022
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
To
1.The Sub Divisional Magistrate/Revenue Divisional Officer,
Thoothukudi,
Thoothukudi District.
Aa1/110/M.C.No.228/2022.
2.The Inspector of Police,
Thoothukudi North Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1053 of 2022
G.ILANGOVAN,J.
TM
Crl.R.C.(MD).No.1053 of 2022
11.11.2022
https://www.mhc.tn.gov.in/judis
