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Madras High CourtCRL RC/404/2021set aside

Sathya v. The Executive Magistrate - Cum -

2021-06-30Honourable Mr Justice P. Velmurugan4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.06.2021 C O R A M THE HONOURABLE MR.JUSTICE P.VELMURUGAN Crl.R.C.No.404 of 2021 & Crl.M.P.No.6532 of 2021 Sathya ... Petitioner/Respondent/Accused Vs.

1.The Executive Magistrate- cum - Deputy Commissioner of Police, St.Thomas Mount District, Chennai City.

2.State rep. by The Inspector of Police, (Law and Order), S-7, Madipakkam Police Station, Chennai.

...2nd Respondents/Petitioner/Complainant PRAYER: Criminal Revision Case filed under 397 r/w 401 of Cr.P.C. to set aside the order passed in Misc.Petition No.33 of 2020 in Na.Ka.No.207/Ni.se.Na.Ka.Thu.Aa.Pa.Tho.Ma/2020 vide an order dated 23.10.2020, on the file of the first respondent. For Petitioner :

Mr.S.N.Arunkumar For Respondent :

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 proceedings dated 23.10.2020 in Misc.Petition No.33 of in Na.Ka.No.207/Ni.se.Na.Ka.Thu.Aa.Pa.Tho.Ma/2020.

2. It is the case of the second respondent that the petitioner executed a bond on 29.09.2020 for keeping good behaviour for a period of two years, under Section 110 of Cr.P.C. and he was also involved in Crime No.3138 of 2015. Thereafter, the petitioner involved in other case in Crime No.983 of 2020, for the offence under Section 399 of IPC. Since the petitioner had indulged in the other offences immediately to

the execution of bond, the first respondent passed the detention order on 23.10.2020, detaining the petitioner for a period of 719 by invoking Section 122 (1)(b) of Cr.P.C. Challenging the same, the accused has filed this Revision.

3. The learned counsel counsel for the petitioner would submit that the petitioner was produced before the first respondent on 16.10.2020 on P.T. warrant and the petitioner was directed to appear on 23.10.2020 and on the same day viz., 23.10.2020 itself, the order was passed by the first respondent and as such, before cancellation of bond, sufficient time was not given to engage the counsel. It is further submitted that due to curfew on account of Covid-19 pandemic, no counsel could be engaged. Hence, the order passed by the first respondent is legally unsustainable and prays for setting aside the order passed by the second respondent.

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 for a period of 719 days 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 29.09.2020. During the pendency of the said bail bond, the petitioner was involved in other case, viz., Crime No.983 of 2020 was registered for the offence under Section 399 of IPC and hence, the petitioner was arrested and remanded to judicial custody on 09.10.2020. 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 16.10.2020 on P.T.warrant. After due enquiry, the first respondent on 23.10.2020 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 23.10.2020 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 //True Copy// Sub Assistant Registrar r n s To 1.The Executive Magistrate cum Deputy Commissioner of Police, St.Thomas Mount District, Chennai City.

2. The Inspector of Police, (Law and Order), S-7, Madipakkam Police Station, Chennai.

3.The Superintendent, Central Prison, Coimbatore.

4.The Government Advocate (Criminal Side) Madras High Court, Chennai.

+1cc to Mr.S.N.Arunkumar, Advocate, S.R.No. 30063 Crl.R.C.No.404 of 2021 & Crl.M.P.No.6532 of 2021 RR(CO) GN(01/07/2021)