Sevanthu, W/O.Ramar, v. The Executive Magistrate/
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reservation 26.03.2019 Date of Order 29.04.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI Crl.R.C(MD)No.127 of 2019 and Crl.MP(MD)No.2192 of 2019 Sevanthu : Revision Petitioner Vs.
1.The Executive Magistrate/The Revenue Divisional Officer, Office of the Revenue Divisional Office, Dindigul, Dindigul District.
2.The Inspector of Police, Prohibition and Enforcement Wing, Dindigul District.
3.The Superintendent of Prison, Madurai Special Prison for Women, Madurai District. : Respondents Prayer: Criminal Revision Petition has been filed under Section 397 r/w 401 of Criminal Procedure Code, against the order in M.C.No.57/2018/A1, dated 28.02.2019 passed by the 1st respondent. For Revision Petitioner : Mr.R.Alagumani For Respondents : Mr.A.Robinson Government Advocate (Criminal side)
O R D E R
This criminal revision is directed against the order in M.C.No.57/2018/A1, dated 28.02.2019 passed by the 1st respondent. 2.According to the petitioner, on 27.06.2018, a false case was registered against her in Crime No.639 of 2018 under Section 110 (g) of Cr.P.C by the 2nd respondent and on 31.07.2018 when she was produced before the 1st respondent, she was forced to execute a bond with two sureties for Rs.1,00,000/- for the period of one year for keeping peace upto 30.07.2019 and subsequently, on 15.12.2018, the 2nd respondent foisted a case against the petitioner in Crime No.777 of 2018 under Section 4(1-A) of the Prohibition Act and thereafter, the 1st respondent passed the impugned order. Aggrieved over the same, the petitioner is before this court.
3.Heard the learned counsel appearing on either side and perused the materials available on record.
4.The main contention raised on the side of the petitioner is that the 1st respondent did not provide reasonable opportunity to defend the case of the detenu before passing the impugned order. It is the further contention of the petitioner that when without giving reasonable opportunity to defend the case of the detenu, any order passed by the Executive Magistrate can be set aside. For that, the learned counsel for the petitioner submitted the following judgments:- 01.AIR (33) 1946 Allahabad 333 (Narain Sahai and others Vs. Emperor);
(02).Order of this Court passed in Crl.OP(MD) No.6841 of 2015, dated 10.04.2015(Malathi Vs. State); (03).2016 CRI.L.J.
(Bala Vs.
Administrative Executive Magistrate, Trichy City); (04).Order of this court passed in Crl.O.P(MD) No.7591 of 2017, dated 21.04.2017 (Rajkumar Vs. State);
(05).2017(1)TLNJ 516 (Criminal) (Sivashanmuga Sundaram Vs.
The Executive Magistrate/Deputy Commissioner of Police L & O, Tirunelveli and two others);
(06).Order of this Court made in Crl.R.C.No.505 of 2017, dated 05.07.2017 (Selvam @ Selvaraj Vs. The Executive Magistrate-cum-Deputy Commissioner of Police, (Law & Order, Crime and Traffic), Tiruppur City and another);
(07).Order of this court passed in Crl.MP(MD) No.7580 of 2018 in Crl.RC(MD)No.542 of 2018, dated 25.09.2018 (Thangam (Mathalai Muthu Vs. The Executive First Class Magistrate-cum-Revenue Divisional Officer, Dindigul); and (08).Order of this court passed in Crl.MP(MD) No.8387 of 2018 in Crl.RC(MD)No.585 of 2018, dated 28.02.2019 (Amalraj Vs. The Executive First Class Magistrate-cum-Revenue Divisional Officer, Dindigul). 5.The learned Government Advocate (Criminal side) appearing for the respondents argued that the first respondent has rightly passed the impugned order and that the petitioner would be subjected to Section 120(1)(b) of Cr.P.C., and that no notice is required to be sent by the first respondent as Section 122 Cr.P.C., does not contemplate the issuance of such notice and prays for dismissal of the criminal revision.
6.A careful perusal of the impugned order would show the nonapplication of mind of the Executive Magistrate. Merely because certain cases have been registered against the petitioner, the same cannot be said to be sufficient ground leading to prove the breach of bond to the satisfaction of the Magistrate concerned that too without hearing the affected party. The close reading of Section 122(1)(b) Cr.P.C would clearly show that the Executive Magistrate shall give an opportunity to the petitioner and apply his judicial mind and arrive at his satisfaction that the petitioner had breached the security bond executed by her to keep good behaviour and he must also record the grounds of such proof. As per Section 122(1)(b) Crl.P.
C, the Executive Magistrate must record his grounds of satisfaction and he must say whether sufficient cause has been established. But he did not do so. It is complete non-application of mind. The 1st respondent passed the order mechanically. 7.At this juncture, it is pertinent to mention the decision reported in 2016(2) TLNJ 228 (Criminal) (Bala @ Balakrishnan and Administrative Executive Magistrate, Trichy City and others, wherein, it has been held as follows:- "As per Section 122(1)(b) of Cr.P.C., the Executive Magistrate before ordering a person to be jailed, he shall be satisfied that the person has breached the bond conditions, the Executive Magistrate must also record the grounds for such proof. That means, he must apply his mind and pass orders. He cannot pass order mechanically.
But he need not write an elaborate Judgment like us. His orders must show atleast briefly the grounds upon which, he has satisfied that the person has breached the bond executed by him. Under Section 122(1)(b) of Cr.P.C., if the said satisfaction is not recorded, it will be presumed that the detention authority sending a person to jail is arbitrary, mechanical, not fair, unjust. The detention order must disclose the grounds of proof, otherwise, the Court cannot see what has transpired in the mind of the Executive Magistrate in passing the detention order, more particularly, when these orders are revisable by the Sessions Judges." 8.
Keeping in view of the above facts, this court is of the considered view that the impugned detention order has not been passed in accordance with law and has been passed mechanically taking of/deprivation of a person's personal liberty will not stand the test of law and the impugned order suffers from legality, propriety and it is vitiated. From the legal position stated above, it is clear that the impugned order has been passed without following the principles of natural justice and the same is liable to be set aside.
9.In fine, this Criminal Revision Petition is allowed and the impugned proceedings issued by the first respondent in M.C.No.57/2018/A1, dated 28.02.2019 is set aside. The 3rd respondent is directed to set at liberty the revision petitioner, if her further detention is no longer required in connection with any other case or proceedings. Consequently, connected Criminal Miscellaneous Petition is closed.
Sd/- Assistant Registrar (writs) // True Copy // Sub Assistant Registrar(CS) er To, 1.The Executive Magistrate/The Revenue Divisional Officer, Office of the Revenue Divisional Office, Dindigul, Dindigul District.
2.The Inspector of Police, Prohibition and Enforcement Wing, Dindigul District.
3.The Superintendent of Prison, Madurai Special Prison for Women, Madurai District.
4. The District Collector, Dindigul.
5. Teh Additional Deputy Superintendent of Police, Dindigul.
6. The Deputy Superintendent of Police (PEW) Dindigul.
7. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai Order made in Crl.R.C(MD)No.127 of 2019 29.04.2019 VB(12.12.2019) 4P 8C