Charles Agastin v. Sub Divisional Magistrate/

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.06.2021 C O R A M THE HONOURABLE MR.JUSTICE P.VELMURUGAN Crl.R.C.No.391 of 2021 & Crl.M.P.No.6354 of 2021 Charles Agastin ... Petitioner/Accused Vs.

1.The Sub Divisional Magistrate / Revenue Divisional Officer, Chengalpattu.

2.The Assistant Superintendent of Police, Chengalpattu Sub Division, Chengalpattu.

3.The State Inspector of Police, Chengalpattu Town Police Station, Chengalpattu.

...

Respondents/Complainant PRAYER: Criminal Revision Case filed under 397 r/w 401 of Cr.P.C. to call for the records on the file of the Court of Sub Divisional Magistrate / Revenue Divisional Officer, Chennai in M.C.No.02/2021 under Section 122 (1) (b) r/w 110 of Cr.P.C., dated 04.05.2021 and set aside the same.

For Petitioner :

Mr.S.Senthilvel For Respondents:

Mr.S.Sugendran Government Advocate (Criminal Side)

O R D E R

This Criminal Revision Case has been filed to set aside the order passed by the first respondent, vide proceeding dated 04.05.2021 in M.C.No.02/2021, under Section 122 (1) (b) r/w 110 of Cr.P.C..

2. It is the case of the second respondent that the petitioner executed a bond for good behaviour under Section 110

of Cr.P.C. on 07.01.2021 and thereafter, the petitioner involved in other case in Crime No.184 of 2021 for the offence under Sections 294 (b), 386, 506 (ii) 365 r/w 25 (1B) Arms Act. Since the petitioner had indulged in the other offences immediately to the execution of bond on 07.01.2021, the first respondent passed the detention order on 04.05.2021, detaining the petitioner till the expiry of the period of bond viz., 06.01.2022, by invoking Section 122 (1)(b) of Cr.P.C. Challenging the same, the accused has filed this Revision.

3. Though the learned counsel for the petitioner, in the grounds of the Revision has taken a stand that the first respondent has no power to invoke Sub Clause (1)(b) of Section 122 of Cr.P.C., during the course of argument, he submitted that he will not argue on the said point, however, he would restrict his argument only on the ground that the petitioner/accused was not given opportunity to put-forth his defence before the first respondent. The learned counsel for the petitioner would submit that while the petitioner was in judicial custody, the first respondent without providing sufficient opportunity and legal assistance to the petitioner to defend his case passed the order, which violates the principles of natural justice. Therefore, the order passed by the first respondent is liable to be set aside.

4. The learned Government Advocate (Criminal Side) for the respondents would submit that sufficient opportunity was given to the petitioner before passing the order, however, the same was not utilized by the petitioner. The first respondent, on proper appreciation of materials, sentenced the petitioner to undergo imprisonment till the expiry of the bond period viz., 06.01.2021 by invoking Section 122(1)(b) of Cr.P.C. for the breach of bond executed under Section 110 of Cr.P.C., and as such, no interference is required.

5. Heard the learned counsel on either side and perused the materials placed on record.

6. Admittedly, the petitioner executed a bond for good behaviour under Section 110 of Cr.P.C. on 07.01.2021. During the pendency of the said bail bond, the petitioner was involved other case in Crime No.184 of 2021 for the offence under Sections 294 (b), 386, 506 (ii) 365 r/w 25 (1B) Arms Act. When the petitioner was in judicial custody, the second respondent police initiated action against the petitioner under Section 122 (1)(b) Cr.P.C and he was produced before the first respondent on 28.04.2021. After due enquiry, the first respondent on 04.05.2021 passed the final order and directed the petitioner to undergo imprisonment for the remaining period as per the bond.

7.On a careful perusal of the records, it is seen that legal assistance has not been provided to the petitioner/accused, which is one of the rights of the accused. The first respondent before proceeding with the case, he should have ensured that the petitioner engaged a counsel or he is willing to engage a counsel. The accused, who is in custody, has to be provided with legal assistance by engaging a counsel on his own. If the petitioner is not in a position to engage a counsel on his own, it is the bounden duty of the Court/respondent police to provide legal assistance through Legal Services Authority. In this case, the first respondent ought to have offered adequate time to the petitioner to engage a counsel and to defend his case or should have engaged a counsel through Legal Services Authority.

Admittedly, on the date of examination of the witnesses, the accused was in custody and he was produced before the first respondent on Prisoner's Transit Warrant. Therefore, the first respondent should have provided legal assistance to the petitioner through the legal services authority to defend his case.

8. Under these circumstances, this Court finds that no sufficient opportunity was given to the petitioner to defend his case. Therefore, the order passed by the first respondent dated 04.05.2021 is set aside and the matter is remitted back to the first respondent to dispose of the case in accordance with law, within a period of two months from the date of receipt of a copy of this order. The first respondent is also directed to provide legal assistance to the petitioner through the Legal Services Authority, if the petitioner is not in a position to engage a counsel on his own. The petitioner is set at liberty on his own bond, if his presence is not required for any other cases. The petitioner is directed to cooperate for the enquiry. 9.Accordingly, this Criminal Revision Case is disposed of. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS-IX) //True copy// Sub Assistant Registrar r n s

To

1. The Sub Divisional Magistrate / Revenue Divisional Officer, Chengalpattu.

2. The Assistant Superintendent of Police, Chengalpattu Sub Division, Chengalpattu.

3. The Inspector of Police, Chengalpattu Town Police Station, Chengalpattu.

4. The Superintendent, Central Prison, Puzhal, Chennai.

5. The Public Prosecutor, Madras High Court, Chennai.

Copy To The Secretary, Legal Service Authority, Chennai-104.

Crl.R.C.No.391 of 2021 & Crl.M.P.No.6354 of 2021 RSI(CO) GMY(15/07/2021) RLP(05/08/2021)