Madras High Court
Muthukumar vs The Sub-Divisional Magistrate ... on 18 October, 2022
Crl.R.C.(MD).No.622 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.622 of 2022
Muthukumar .. Petitioner
Vs.
1.The Sub-Divisional Magistrate and
Revenue Divisional Officer,
Kovilpatti, Thoothukudi District.
2.The Inspector of Police,
Kovilpatti West Police Station,
Kovilpatti,
Thoothukudi District.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli District.
4.The Superintendent of Prison,
District Jail,
Peravoorani,
Thoothukudi District. .. Respondents/Complainant
PRAYER: This Civil Revision Case is filed under Sections 397 (3) r/w 401
of the Criminal Procedure Code, to call for the records pertaining to the
order dated 28.06.2022, passed by the 1st respondent/Sub-Divisional
Magistrate/the Revenue Divisional Officer, Kovilpatti, Thoothukudi
District, in Na.Ka.A1.6828/2022 and set aside the same as illegal.
1/6
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Crl.R.C.(MD).No.622 of 2022
For Petitioner : Mr.N.Pragalathan
For Respondent : Mr.S.Manikandan
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Case has been filed against the order passed
by the respondent in Na.Ka.A1.6828/2022, dated 28.06.2022.
2.The petitioner was issued with a notice by the 1st respondent under
Section 107 Cr.P.C. to show cause as to why he should not execute a bond
for keeping the peace for a period of six months with a bond for a sum of
Rs.10,000/-. Following which on 16.05.2022 the petitioner is said to have
appeared before the 1st respondent and executed such bond for a sum of
Rs.15,000/- with surety. In such a situation on 22.06.2022 a case was
registered against the petitioner by 2nd respondent police in Crime No.380 of
2022 for the offence punishable under Section 8 (C) r/w Section 20(b)(ii)
(B) of NDPS Act. Hence, the first respondent passed the impugned order in
Na.Ka.A1.6828/2022, dated 28.06.2022, whereby, the petitioner was
ordered to be detained in prison under Section 122(1)(b) of Cr.P.C. for
breaching the bond executed by the petitioner under Section 107 of Cr.P.C.
Aggrieved over the same the present criminal revision is filed before this
Court.
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Crl.R.C.(MD).No.622 of 2022
3.The learned Government Advocate (Crl. Side) appearing for the
respondent submitted that the procedure has been followed properly.
According to the learned Government Advocate (Crl. Side), the petitioner
was enquired by the first respondent. During the course of enquiry, he
himself admitted the charges framed against him. Based on the admission
made by the petitioner and the records available with the respondent police,
the first respondent has passed the above order.
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
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Crl.R.C.(MD).No.622 of 2022
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.
10.The enquiry, as far as possible shall be completed
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Crl.R.C.(MD).No.622 of 2022
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/Sub-
Divisional Magistrate/the Revenue Divisional Officer, Kovilpatti,
Thoothukudi District, Na.Ka.A1.6828/2022, dated 28.06.2022, is hereby
set aside. However, liberty is granted to the first respondent herein to initiate
fresh action, if so required, by following the procedure that has been set out
in the above said Judgment.
18.10.2022
Index : Yes / No
Internet : Yes / No
dss
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.622 of 2022
G.ILANGOVAN,J.
Dss
To
1.The Sub-Divisional Magistrate/the Revenue Divisional Officer,
Kovilpatti, Thoothukudi District.
2.The Sub-Divisional Magistrate and
Revenue Divisional Officer,
Kovilpatti, Thoothukudi District.
3.The Inspector of Police,
Kovilpatti West Police Station,
Kovilpatti,
Thoothukudi District.
4.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli District.
5.The Superintendent of Prison,
District Jail,
Peravoorani,
Thoothukudi District.
Crl.R.C.(MD).No.622 of 2022
18.10.2022
https://www.mhc.tn.gov.in/judis
