Madras High Court
Uthayakumar vs The Ii-Class Executive ... on 5 January, 2023
Crl.R.C.(MD).No.1271 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2023
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.1271 of 2022
Uthayakumar ... Petitioner
Vs.
1.The II-Class Executive Magistrate/the Tahsildar,
Nanguneri,
Tirunelveli District.
2.The Inspector of Police,
Moolakaraipatti Police Station,
Moolakaraipatti,
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 25.11.2022 passed by the first respondent/II-Class Executive
Magistrate/ the Tahsildar, Nanguneri, Tirunelveli District, in
Na.Ka.A8/6802/2022 and set aside the same as illegal.
1/7
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1271 of 2022
For Petitioner : Mr.N.Pragalathan
For Respondents : Mr.R.Suresh Kumar
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Case has been filed to set aside the order,
dated 25.11.2022, passed by the first respondent in Na.Ka.A8/6802/2022.
2.The proceedings under Section 122(1)(b) has been initiated against
the petitioner, for violation of bond executed under Section 110(e) Cr.P.C.
Reading of the order shows that there is complete non-application of mind.
It has been stated that the summon was issued to the petitioner and on
25.11.2022 this order has been passed by the first respondent, 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 Government Advocate(Crl.side) appearing for the
respondents submitted that the procedure has been followed properly.
According to the learned Government Advocate(Crl.side), statement of
witnesses has been recorded and sufficient opportunities were given to him.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1271 of 2022
The learned Government Advocate(Crl.side) circulated a copy of the
statement recorded from the petitioner. Though the petitioner has executed
sureties before the first respondent, in violation of his own bond, he has
involved in the offences in Crime No.148/2022 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.1271 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
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Crl.R.C.(MD).No.1271 of 2022
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, under
Section 122(1)(b) Cr.P.C. in Na.Ka.A8/6802/2022, dated 25.11.2022, is
hereby quashed. However, liberty is granted to the respondents herein to
initiate fresh action, if so required, by following the procedure that has been
set out in the above said Judgment. The petitioner shall immediately
released, if he is not required in any other cases.
05.01.2023
Index : Yes / No
Internet : Yes / No
tta
(Issue order copy on 05.01.2023)
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.1271 of 2022
To,
1.The II-Class Executive Magistrate/the Tahsildar,
Nanguneri,
Tirunelveli District.
2.The Inspector of Police,
Moolakaraipatti Police Station,
Moolakaraipatti,
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.1271 of 2022
G.ILANGOVAN,J.
tta
Crl.R.C.(MD).No.1271 of 2022
05.01.2023
https://www.mhc.tn.gov.in/judis
