Madras High Court
Gunasekaran vs The Executive Magistrate 2 ... on 10 October, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.10.2022
CORAM:
THE HON'BLE MR JUSTICE A.A.NAKKIRAN
Crl.R.C.(MD).No.970 of 2022
in
Crl.MP(MD)No.11934 of 2022
Gunasekaran .. Petitioner/Respondent
Vs.
nd
1.The Executive Magistrate 2 Class/Tahsildar,
Kodaikanal, Dindigul District.
Na.Ka.No.110/2022/A2
2.The Inspector of Police,
Kodaikonal Police Station,
Dindigul District. .. Respondents/Complainants
Prayer:- Criminal Revision petition is filed under Section 397 r/w 401
Cr.P.C, to call for the records of the proceedings in Na.Ka.No.
110/2022/A2 dated 02.08.2022 on the file of the 1st respondent and set
aside the same.
For Petitioner : Mr.N.Mohan
For Respondents : Mr.S.Manikandan,
Government Advocate (Crl.Side)
ORDER
These Criminal Revisions Case is filed seeking quashment of
proceedings in Na.Ka.No.110/2022/A2, dated 02.08.2022, on the file of
the first respondent.
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2.The case of the prosecution is that the second respondent
registered a case in LIR.No.39 of 2022 under Section 110 Cr.P.C to give
security for good behavior for six months on 15.07.2022. The petitioner
executed security for six months. Thereafter, the second respondent
registered a case in Crime No.197 of 2022 for the offence punishable
under Section 8 (c), r/w 20 (b) (ii) (B) of NDPS Act, on 18.07.2022. On
the same day itself he was arrested and remanded to judicial custody. The
above said case is still pending. During the pendency of the above said
investigation, the present proceedings has been initiated by the first
respondent under Section 110(c) of Cr.P.C., and passed orders under
Section 122 (1) (b) of the Act. Challenging the above, this revision has
been preferred.
3. The learned counsel for the petitioner would rely upon the
judgment 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.
9.A copy of the order should be furnished to the
person along with the materials produced at the enquiry.
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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.”
4.This set out the principles to be followed while dealing with the
proceedings under Section 122 (1) (b) of Cr.P.C. Relying upon the above
said order, Cr.R.C.(MD)No.492 of 2022 has been decided by the
Co-ordinate Bench of this Court. The relevant guidelines that has been
set out in P.Sathish @ Sathish Kumar Vs.State represented by the
Inspector of Police (cited supra) has not been properly followed in this
matter.
5.Reading of the order passed shows that on the date of the
production of the petitioner, the evidence of the second respondent/police
officials has been recorded. Finding that a case in Crime No.197 of 2022
has been registered, the above said order has been passed. None of the
guidelines that has been set out in P.Sathish @ Sathish Kumar Vs.State
represented by the Inspector of Police (cited supra) has not been
followed. So, on the sole ground, this petition is liable to be allowed.
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6.Accordingly, the impugned order, dated 02.08.2022, passed by
the first respondent/the Executive Magistrate 2nd Class/Tahsildar,
Kodaikanal, Dindigul District, is hereby set aside and the Criminal
Revision Case is allowed. Therefore, the petitioner is ordered to be
released forthwith, unless his custody is required in connection with any
other case. Consequently, the connected Criminal Miscellaneous Petition
is closed.
7.But, however, liberty is given to the respondents to initiate fresh
action by following the due procedure as set out in the above judgment.
This order will not be an impediment to initiate fresh proceedings.
10.10.2022
Internet :Yes/No
Internet : Yes/No
dss
Note : Issue order copy on 11.10.2022
To
1.The Executive Magistrate 2nd Class/Tahsildar,
Kodaikanal, Dindigul District.
2.The Inspector of Police,
Kodaikonal Police Station,
Dindigul Station, Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
A.A.NAKKIRAN, J.,
dss
Crl.R.C.(MD).No.970 of 2022
in
Crl.MP(MD)No.11934 of 2022
10.10.2022
https://www.mhc.tn.gov.in/judis
