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Madras High CourtCRL RC(MD)/39/2023allowed

Manikandan @ Emdon Mani v. The Executive Magistrate/Deputy Commissioner Of Police(South)

2023-01-31Honourable Mr Justice G.Ilangovan6 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31.01.2023

CORAM

THE HONOURABLE MR. JUSTICE G.ILANGOVAN and Crl.M.P.(MD).No.592 of 2023 Manikandan @ Emdon Mani ... Petitioner Vs.

1.The Executive Magistrate cum Deputy Commissioner of Police (South), Madurai City.

2.The Inspector of Police, B6, Jaihindpuram (Law and Order) Police Station, Madurai City, Madurai.

... Respondents PRAYER: This Criminal Revision Case is filed under Sections 397 r/w 401 of the Criminal Procedure Code, to call for the records of the proceedings in M.C.No.1347/Ni.Se.Na.&Ka.Thu.Aa/M.Ma/2022, dated 22.11.2022 on the file of the 1st respondent and set aside the same. For Petitioner : Mr.S.Muniyandi For Respondents : Mr.R.Suresh Kumar Government Advocate (Crl. Side) 1/6

ORDER

This Criminal Revision Case has been filed against the order passed by the first respondent in M.C.No.1347/Ni.Se.Na.&Ka.Thu.Aa/M.Ma/2022, dated 22.11.2022.

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 22.11.2022 the above said order has been passed only based on the FIR in Crime No.520 of 2022 on the file of the second respondent registered for the offence punishable under Sections 294(b), 341, 323, 324, 307, 506(ii) of 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 respondent submitted that the procedure has been followed properly. According to the learned Government Advocate (Crl. Side), the petitioner was summoned and enquired on 15.11.2022, 17.11.2022 and 22.11.2022 and sufficient opportunity was given to him. Though the petitioner has executed sureties before the first respondent, he again involved in the 2/6

offences, thereby disturbing the public peace. Therefore, the impugned order has been passed by the first respondent. 4.Whether the Deputy Commissioner of Police can exercise the jurisdiction of the Revenue Divisional Officer, came up for consideration before this Court in more than one occasions. The above said issue was also referred to the Larger Bench for decision in the Judgment reported in Devi Vs. Executive Magistrate cum Deputy Commissioner of Police and another in Crl.R.C.No.78 of 2020.

5.Apart from that the learned counsel for the petitioner relied upon the guidelines issued by this Court in a decision 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). 3/6

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 adjourned unnecessarily. The advocates, who appear on behalf 4/6

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.1347/Ni.Se.Na.&Ka.Thu.Aa/M.Ma/2022, dated 22.11.2022, 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.

31.01.2023 Index : Yes / No Internet : Yes / No TM To 1.The Executive Magistrate cum Deputy Commissioner of Police (South), Madurai City.

2.The Inspector of Police, B6, Jaihindpuram (Law and Order) Police Station, Madurai City, Madurai.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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G.ILANGOVAN,J.

TM 31.01.2023 6/6