Madras High Court
Saibunisha vs The 2Nd Class Executive ... on 23 September, 2022
Crl.R.C.(MD).No.927 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.09.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.927 of 2022
and Crl.M.P.(MD).No.11481 of 2022
Saibunisha .. Petitioner/Detenue
Vs.
1.The 2nd Class Executive Magistrate and Tahsildar,
Thiruvadanai,
Ramanathapuram District.
2.The Superintendent of Prison,
Central Prison,
Madurai.
3.The Inspector of Police,
Thondi Police Station,
Ramanathapuram 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 relating to the order in
M.C.No.28 of 2022, dated 07.09.2022 on the file of the 1st respondent.
For Petitioner : Mr.P.Ganapathi Subramanian
For Respondents : Mr.S.Manikandan
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Case has been filed against the order passed
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Crl.R.C.(MD).No.927 of 2022
in M.C.No.28 of 2022, dated 07.09.2022 on the file of the 1st respondent.
2.The proceedings has been initiated under Sections 110 and 111 of
Cr.P.C., summoning this petitioner calling upon her to show cause as to why
she should not enter into bond for Rs.50,000/- (Rupees Fifty Thousand
only) under Section 122(1)(b) Cr.P.C. Reading of the order shows that there
is complete non-application of mind. According to the learned counsel for
the petitioner no enquiry was undertaken as contemplated in Rules.
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, statement of
witnesses has been recorded on 07.09.2022. Since she is a habitual offender
under law and order case, this impugned order came to be passed. The
learned Additional Public Prosecutor circulated a copy of the statement
recorded from the petitioner.
4.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
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Crl.R.C.(MD).No.927 of 2022
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
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
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Crl.R.C.(MD).No.927 of 2022
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 order passed by the first respondent in
M.C.No.28 of 2022, dated 07.09.2022 , 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.
23.09.2022
Index : Yes / No
Internet : Yes / No
TM
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.927 of 2022
To
1.The 2nd Class Executive Magistrate and Tahsildar,
Thiruvadanai,
Ramanathapuram District.
2.The Superintendent of Prison,
Central Prison,
Madurai.
3.The Inspector of Police,
Thondi Police Station,
Ramanathapuram 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.927 of 2022
G.ILANGOVAN,J.
TM
Crl.R.C.(MD).No.927 of 2022
23.09.2022
https://www.mhc.tn.gov.in/judis
