Madras High Court
Vadamalainatchi @ ... vs The 2Nd Class Executive ... on 28 October, 2022
Crl.R.C.(MD).No.1002 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.1002 of 2022
and Crl.M.P.(MD).No.12474 of 2022
Vadamalainatchi @ Vadamalayammal .. Petitioner/Respondent
Vs.
1.The 2nd Class Executive Magistrate/Revenue Tahsildar,
Bodinaickanur,
Theni District,
M.C.No.78/2022/A5.
2.The Inspector of Police,
Bodinaickanur Town Police Station,
Theni District. .. Respondents/Complainants
PRAYER: This Civil Revision Case is filed under Sections 397 r/w 401 of
the Criminal Procedure Code, to call for the records in M.C.No.78/2022/A5,
dated 11.08.2022 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)
ORDER
This Criminal Revision Case has been filed to set aside the order,
dated 11.08.2022, passed by the 1st respondent/2nd Class Executive
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1002 of 2022
Magistrate/Revenue Tahsildar, Bodinaickanur, Theni District, in M.C.No.
78/2022/A5.
2.The proceedings under Section 122(1)(b) has been initiated against
the petitioner, for violation of bond executed under Section 110(c) 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.261 of
2022 has been registered on the file of the second respondent on 03.08.2022
for the offence punishable under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act
and the petitioner was arrested on the same day itself for alleging illegal
transportation of Ganja and on 11.08.2022 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.The learned Additional Public Prosecutor appearing for the
respondent submitted that the procedure has been followed properly.
According to the learned Additional Public Prosecutor, summon was issued
to the petitioner on 04.08.2022 and statement of witnesses has been
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1002 of 2022
recorded on 08.08.2022 and sufficient opportunities were given to her. The
learned Additional Public Prosecutor circulated a copy of the statement
recorded from the petitioner. Though the petitioner has executed sureties
before the first respondent, in violation of her own bond, she has involved
in the offences in Crime No.261/2022 before the second respondent police.
Therefore, the impugned order has been passed by the first respondent.
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.1002 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.1002 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 11.08.2022, passed by the 1st
respondent/2nd Class Executive Magistrate/Revenue Tahsildar,
Bodinaickanur, Theni District, in M.C.No.78/2022/A5, 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 2nd Class Executive Magistrate/Revenue Tahsildar,
Bodinaickanur,
Theni District,
M.C.No.78/2022/A5.
2.The Inspector of Police,
Bodinaickanur Town Police Station,
Theni 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.1002 of 2022
G.ILANGOVAN,J.
TM
Crl.R.C.(MD).No.1002 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
