Madras High Court
Umaidurai vs The Ii – Class Executive ... on 20 October, 2022
Crl.R.C.(MD).No.953 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.10.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.953 of 2022
Umaidurai .. Petitioner
Vs.
1.The II – Class Executive Magistrate / The Tahsildar,
Tirunelveli, Tirunelveli District.
2.The Inspector of Police,
Seevalaperi Police Station,
Seevalaperi,
Tirunelveli District.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli District. .. 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,
dated 22.07.2022 passed by the 1st respondent/ II – Class Executive
Magistrate / The Tahsildar, Tirunelveli, Tirunelveli District, in
Na.Ka.A3/2790/2022 and set aside the same as illegal.
For Petitioner : Mr.N.Pragalathan
For Respondent : Mr.S.Manikandan
Government Advocate (Crl. Side)
1/6
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.953 of 2022
ORDER
This Criminal Revision Case has been filed against the proceedings
initiated by the first respondent in Na.Ka.A3/2790/2022, dated 22.07.2022.
2.The proceedings has been initiated under Section 122 (1)(b)Cr.P.C.,
stating that this petitioner has disturbed the peace in public. Reading of the
order shows that there is complete non-application of mind. It has been
stated that on 22.07.2022 the above said order has been passed only based
on the FIR in Crime no.139 of 2022 on the file of the second respondent
registered for the offence punishable under Sections 294(b), 323, 324,
506(ii) of IPC and 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.
According to the learned Additional Public Prosecutor, the petitioner was
summoned and enquired on 22.07.2022 and sufficient opportunity was
given to him. Though the petitioner has executed sureties before the first
respondent, he again involved in disturbance of public peace. Therefore, the
impugned order has been passed by the first respondent.
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Crl.R.C.(MD).No.953 of 2022
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.
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
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Crl.R.C.(MD).No.953 of 2022
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 122(1)(b) Cr.P.C. proceedings initiated by the
respondent in Na.Ka.A3/2790/2022 dated 22.07.2022 is hereby quashed.
However, liberty is granted to the respondent herein to initiate fresh action,
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Crl.R.C.(MD).No.953 of 2022
if so required, by following the procedure that has been set out in the above
said Judgment. The petitioner may be released from prison, if not required
in any other case.
20.10.2022
Index : Yes / No
Internet : Yes / No
TM
Note: Issue order copy on 20.10.2022.
To
1.The II – Class Executive Magistrate / The Tahsildar,
Tirunelveli, Tirunelveli District.
2.The Inspector of Police,
Seevalaperi Police Station,
Seevalaperi,
Tirunelveli District.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.953 of 2022
G.ILANGOVAN,J.
TM
Crl.R.C.(MD).No.953 of 2022
20.10.2022
https://www.mhc.tn.gov.in/judis
