Nagaraj v. The Ii Class Executive Magistrate Cum Tahsildar

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.01.2023

CORAM

THE HONOURABLE MR. JUSTICE G.ILANGOVAN and Crl.M.P.(MD).No.859 of 2023 Nagaraj ... Petitioner Vs.

1.The II-Class Executive Magistrate Cum Tahsildar, Kamudhi.

2.The Inspector of Police, Abiramam Police Station, Abiramam, Ramnad.

3.The Inspector of Police, Thideernagar Police Station, Madurai.

... Respondents PRAYER: This Civil Revision Case is filed under Sections 397 r/w 401 of the Criminal Procedure Code, to call for the records and set aside the order passed by the first respondent in M.C.No.25 of 2022 dated 16.08.2022. For Petitioner : Mr.J.Imran Khan For Respondents : Mr.R.Suresh Kumar Government Advocate (Crl. Side) 1/6

ORDER

This Criminal Revision Case has been filed to set aside the order, dated 16.08.2022, passed by the first respondent in M.C.No.25 of 2022. 2.The proceedings under Section 122(1)(b) has been initiated against the petitioner, for violation of bond executed under Section 110(e) Cr.P.C. Reading of the order shows that there is complete non-application of mind. It has been stated that the summon was issued to the petitioner and on 16.08.2022 this order has been passed by the first respondent, which is not reasonable and proper. According to the learned counsel for the petitioner, before passing the above said order, 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. Though the petitioner has executed sureties before the first respondent, in violation of his own bond, he has involved in the offences in Crime No. 266/2022 before the second respondent police. Therefore, the impugned order has been passed by the first respondent. 2/6

4.The learned counsel for the petitioner submitted that 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 Magistrate on the notified date or such other date as may be fixed and the person should be allowed to participate in the 3/6

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. Today, this case is posted for the purpose that whether the above said guidelines has been properly followed or not by the respondents and to the effect that the learned Government Advocate was directed to produce the enquiry file. In respect of repeated adjournments, the learned Government Advocate has not produced the same and it shows that the proper enquiry has not been conducted by following the above said 4/6

guidelines.

6. In view of the above, this petition is liable to be allowed and accordingly, allowed and the order passed by the first respondent, under Section 122(1)(b) Cr.P.C. in M.C.No.25 of 2022, dated 16.08.2022, is hereby quashed. However, liberty is granted to the respondents herein to initiate fresh action, if so required, by following the procedure that has been set out in the above said Judgment. Consequently, the connected miscellaneous petition is closed.

24.01.2023 Index : Yes / No Internet : Yes / No tta To, 1.The II-Class Executive Magistrate Cum Tahsildar, Kamudhi.

2.The Inspector of Police, Abiramam Police Station, Abiramam.

3.The Inspector of Police, Thideernagar Police Station, Madurai.

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

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G.ILANGOVAN,J.

tta 24.01.2023 6/6