Ibramsha vs The Second Class Executive ...
2023 Latest Caselaw 754 Mad

Citation : 2023 Latest Caselaw 754 Mad
Judgement Date : 19 January, 2023

Madras High Court

Ibramsha vs The Second Class Executive ... on 19 January, 2023

Crl.R.C.(MD).No.32 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19.01.2023

CORAM

THE HONOURABLE MR. JUSTICE G.ILANGOVAN

Crl.R.C.(MD).No.32 of 2023

Ibramsha ... Petitioner / Respondent

Vs.

1.The Second Class Executive Magistrate cum Thasildhar,
Dindigul West Taluk, Dindigul District.

2.The Inspector of Police,
Dindigul Town South Police Station,
Dindigul District. ... Respondents / Complainants

PRAYER: This Criminal Revision Case is filed under Sections 397 r/w

401 of the Criminal Procedure Code, to call for the records relating to the

proceedings in Na.Ka.No.281/2022/A5 by the 1st respondent dated

20.12.2022 and set aside the same.

For Petitioner : Mr. D.Venkatesh

For Respondents : Mr. R.Suresh Kumar
Government Advocate (Crl. Side)

1/6
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.32 of 2023

ORDER

This Criminal Revision Case has been filed against the order passed

by the first respondent in Na.Ka.No.281/2022/A5, dated 20.12.2022.

2. The proceedings has been initiated under Section 122(1)(b)Cr.P.C.,

stating that this petitioner is involved in offences and disturbed the public

peace. Reading of the order shows that there is complete non-application of

mind. It has been stated that on 20.12.2022 the above said order has been

passed only based on the FIR in Crime No.207 of 2022 on the file of the

second respondent registered for the offence punishable under Sections 392

and 506(ii) IPC and 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 Additional Public Prosecutor sufficient

opportunity was given to him. Though the petitioner has executed sureties

before the first respondent, he again involved in the offences, thereby

disturbing the public peace. Therefore, the impugned order has been passed

by the first respondent.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.32 of 2023

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

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

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.32 of 2023

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 enquiry process for its expeditious completion.”

5.In view of the above, this petition is liable to be allowed and

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.32 of 2023

accordingly, allowed and the order passed by the first respondent in

Na.Ka.No.281/2022/A5, dated 20.12.2022, is hereby set aside. 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. He may be released from the prison, if not required in any other

case. Consequently, connected miscellaneous petition is closed.

19.01.2023 Index : Yes / No Internet : Yes / No Indu

Note: Issue order copy on 19.01.2023.

1.The Second Class Executive Magistrate cum Thasildhar, Dindigul West Taluk, Dindigul District.

2.The Inspector of Police, Dindigul Town South Police Station, Dindigul District.