Madras High Court
G.Muthusamy vs The Sub-Divisional Magistrate ... on 8 September, 2022
Crl.R.C.(MD).No.833 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.09.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.833 of 2022
and Crl.M.P.(MD).No.10401 of 2022
G.Muthusamy .. Petitioner
Vs.
The Sub-Divisional Magistrate and
Revenue Divisional Officer,
Paramakudi,
Ramanathapuram District. .. Respondent
PRAYER: This Civil Revision Case is filed under Sections 397 (3) r/w 401
of the Criminal Procedure Code, to call for the records and set aside the
order, dated 13.08.2022 in ROC.No.A2/7918/2022, passed by the
respondent u/s.133 of the Cr.P.C. as illegal.
For Petitioner : Mr.S.Venkatasubramaniyan
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 ROC.No.A2/7918/2022, u/s.133 of the Cr.P.C., dated
13.08.2022.
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Crl.R.C.(MD).No.833 of 2022
2.The proceedings has been initiated under Section 133 Cr.P.C.,
stating that this petitioner is involved in illicit Sale of Drinking Water and
some illegality has been committed by him. Reading of the order shows that
there is complete non-application of mind. It has been stated that on
13.08.2022, preliminary order has been passed and the above said
preliminary order is reasonable and proper and that the order has been made
absolute on the same day itself with a direction to the petitioner to obey the
order on or before 28.08.2022. According to the learned counsel for the
petitioner, it is a final order and no preliminary order has been passed before
the above said order and no enquiry was undertaken as contemplated under
Section 133 of Cr.P.C.
3.The learned Additional Public Prosecutor appearing for the
respondent submitted that only summon has been issued to the petitioner on
13.08.2022 vide preliminary order and subsequently, it was made absolute
on the same day itself. So the procedure has been followed properly.
According to the learned Additional Public Prosecutor, statement of
witnesses has been recorded on 25.08.2022. The learned Additional Public
Prosecutor circulated a copy of the statement recorded from the petitioner
and other persons similarly placed. As per the statement given by the
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Crl.R.C.(MD).No.833 of 2022
petitioner, it has been stated that on 13.08.2022, the District Collector,
Ramanathapuram has issued an order stating that on the basis of the
complaint given by some of the Villagers action has been initiated under
Section 133 Cr.P.C., and undertaking has been obtained on 20.08.2022.
4.The learned counsel for the petitioner submitted that subsequent to
the filing of the above this petition, he has been taken to the respondent
office and have obtained such a statement. 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.833 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.833 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 133 Cr.P.C. proceedings initiated by the
respondent in ROC.No.A2/7918/2022, dated 13.08.2022, 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.
08.09.2022
Index : Yes / No
Internet : Yes / No
TM
To
1.The Sub-Divisional Magistrate and Revenue Divisional Officer,
Paramakudi, Ramanathapuram District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.R.C.(MD).No.833 of 2022
G.ILANGOVAN,J.
TM
Crl.R.C.(MD).No.833 of 2022
08.09.2022
https://www.mhc.tn.gov.in/judis
