Madras High Court
Ponnangan vs The Ii Class Executive Magistrate ... on 28 October, 2022
Crl.R.C.(MD).No.1022 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.10.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.1022 of 2022
and Crl.M.P.(MD).No.12854 of 2022
Ponnangan .. Petitioner/Accused
Vs.
1.The II Class Executive Magistrate cum
Revenue Tahsildar,
Andipatti, Theni District. .. 1st Respondent
2.The State through
The Inspector of Police,
Varushanadu Police Station,
Varusanadu. .. 2nd Respondent/Complainant
3.The Superintendent of Prison,
District Jail, Theni. .. 3rd Respondent
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
of the 1st respondent by his proceedings in Na.Ka.No.6650/2022/A4, dated
06.09.2022 and set aside the same as illegal and allow the Criminal
Revision Petition.
For Petitioner : Mr.S.Sivaprakash
For Respondents : Mr.S.Manikandan
Government Advocate (Crl. Side)
1/6
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1022 of 2022
ORDER
This Criminal Revision Case has been filed to set aside the order,
dated 06.09.2022, passed by the 1st respondent/2nd Class Executive
Magistrate/Revenue Tahsildar, Andipatti, Theni District, in Na.Ka.No.
6650/2022/A4.
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.118 of
2022 has been registered on the file of the second respondent on 15.08.2022
for the offence punishable under Section 8(c) r/w 20(b)(ii)(B) & 29(1) of
NDPS Act alleging that the petitioner was involved in illegal transportation
of Ganja and on 06.09.2022 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
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Crl.R.C.(MD).No.1022 of 2022
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
and the order has been passed on the very same date. Perusal of Enquiry file
shows that no sufficient opportunity was given to the revision petitioner.
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).
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Crl.R.C.(MD).No.1022 of 2022
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
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
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Crl.R.C.(MD).No.1022 of 2022
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 06.09.2022, passed by the 1st
respondent/2nd Class Executive Magistrate/Revenue Tahsildar, Andipatti,
Theni District, in Na.Ka.No.6650/2022/A4, 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.
28.10.2022
Index : Yes / No
Internet : Yes / No
TM
To
1.The II Class Executive Magistrate cum Revenue Tahsildar,
Andipatti, Theni District.
2.The Inspector of Police, Varushanadu Police Station, Varusanadu.
3.The Superintendent of Prison, District Jail, Theni.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1022 of 2022
G.ILANGOVAN,J.
TM
Crl.R.C.(MD).No.1022 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
