Madras High Court
Karutha Pandi Alias Karthick vs The Sub-Divisional Executive ... on 26 October, 2021
Author: R.Pongiappan
Bench: R.Pongiappan
Crl.R.C.(MD)No.186 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.R.C.(MD)No.733 of 2021
and
Crl.M.P.(MD)No.8456 of 2021
Karutha Pandi alias Karthick .. Petitioner
Vs.
1.The Sub-Divisional Executive Magistrate-cum-
Revenue Divisional Officer,
Tenkasi.
2.The Inspector of Police,
Alwarkurchi Police Station,
Tenkasi District.
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli District. .. Respondents
PRAYER: This Criminal Revision Petition is filed under Section 397 r/w.
401 of the Code of Criminal Procedure, to call for records pertaining to the
order dated 27.08.2021 passed by the first respondent in M.C.No.110/2020
and set aside the same.
For Petitioner : Mr.R.Vinoth Bharathi
For Respondents : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
1/10
https://www.mhc.tn.gov.in/judis/
Crl.R.C.(MD)No.186 of 2017
ORDER
The present Criminal Revision Case has been filed praying to call for the records pertaining to the order of conviction dated 27.08.2021, passed by the first respondent / Sub-Divisional Executive Magistrate-cum-Revenue Divisional Officer, Tenkasi, vide Proceedings in M.C.No.110 / 2020 and to set aside the same as illegal.
2.I have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.
3.According to the petitioner, way back in the year 2020, the second respondent registered a case against the petitioner under Section 110 Cr.P.C. in L.I.R.No.11 of 2020 and thereafter, a proceeding was initiated against him by the first respondent under Sections 111 and 113 Cr.P.C. Subsequently, on 05.11.2020 the first respondent had passed an order under Sections 111 and 113 of Cr.P.C. against the petitioner, directing him to execute a bond of Rs.50,000/- for a period one year. 2/10 https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017
4.Pursuant to the said order passed by the first respondent, on the same day, the petitioner had executed a bond under Section 117 Cr.P.C. While so, on 27.06.2021 the second respondent registered yet another case in Crime No.186 of 2021 against the petitioner for the offences punishable under Sections 341, 294(b), 392 and 506(ii) I.P.C. and thereafter, the first respondent had passed the impugned order dated 27.08.2021, alleging that the petitioner has breached the bond, hence, cancelled the bond and also ordered to detain him. Accordingly, the petitioner has been convicted and sentenced till 04.11.2021 i.e., till the completion of one year from the date of execution of the said bond.
5.Challenging the said conviction and sentence, the petitioner is before this Court with this Criminal Revision Case.
6.The first and foremost contention raised by the petitioner's counsel is that, without providing any opportunity to defend the case, the first respondent has passed the order of conviction and no show cause notice was issued before ordering to execute a bond, which are erroneous in law. 3/10 https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017
7.Per contra, the learned Additional Public Prosecutor appearing for the respondents Police would contend that the order of conviction passed by the first respondent is well within the procedure contemplated under Chapter VIII of the Code of Criminal Procedure, 1973.
8.Now, on considering the rival submissions made by the learned counsels appearing on either side, it is an admitted fact that while at the time of convicting the revision petitioner, he has not been provided with an opportunity to defend the allegation levelled against him. Further, no show cause notice was issued to the petitioner before ordering to execute a bond.
9.At this juncture, it would be relevant to see the order of this Court, dated 13.02.2019, passed in Crl.R.C.No.137 of 2018 etc. batch. While at the time of passing orders in the said Criminal Revision Cases, this Court after referring various judgments, viz.,
(i) 1980 (Supp) Supreme Court Cases 649 - Gopalanachari Vs. State of Kerala;
(ii) CDJ 2016 MHC 4491 - Bala @ Balakrishnan Vs. The Administrative Executive Magistrate-cum-Deputy Commissioner, Trichy 4/10 https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017 City and others;
(iii) CDJ 2016 MHC 4709 - Balamurugan Vs. State, Rep. by the Inspector of Police and another;
(iv) Order in Crl.R.C.No.620 of 2017, dated 13.06.2017 [Victor Vs. State, Rep. by the Inspector of Police, J-11, Kannagi Nagar (L & O) Police Station, Chennai;
(v) CDJ 2017 MHC 4350 - Selvam @ Selvaraj Vs. The Executive Magistrate-cum-Deputy Commissioner of Police (Law & Order, Crime and Traffic), Tiruppur and another;
(vi) CDJ 2017 MHC 5939 - Sathish Kumar Vs. State, Rep. by the Inspector of Police, Tiruchirappalli City and another;
(vii) Order of this Court, dated 31.08.2017 in Crl.R.C.No.1132 of 2017 (Mulla @ Sivakumar Vs. State, Rep. by the Inspector of Police and another);
(viii) CDJ 2017 MHC 7784 - M.Angkumar Vs. The Executive Magistrate-cum-Deputy Commissioner of Police, Law and Order, Madurai and others; and
(ix) AIR 1986 Supreme Court 991 -Suk Das and another Vs. Union Territory of Arunachal Pradesh.
5/10 https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017 issued various directions to the Executive Magistrate and observed as follows:-
''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 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.6/10
https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017
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 u/s.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 circumstance, 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.?''
10.Applying the ratio laid down in the above referred order, here it is a case that when at the time of passing an order of conviction, the petitioner was not provided with an opportunity to defend his case. In this regard, there was no denial on the side of the learned Additional Public Prosecutor that before convicting the petitioner, reasonable opportunity was not given 7/10 https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017 to him. Under the constitutional mandate, it is for the first respondent to ensure that if the petitioner is not enough to face trial with full of legal knowledge, he has to be provided with legal assistance by appointing a counsel, who is nominated by the District Legal Services Authority.
11.In this case, no such opportunity was given to the petitioner by appointing a Legal Aid Counsel. Therefore, it is a clear case of violation of instructions already issued by this Court. Further, I am of the considered opinion that the conviction rendered by the first respondent is in respect of conduct of the petitioner and the same is nothing but violative of principles of natural justice and therefore, the said order passed by the first respondent is liable to be set aside. Accordingly, the order of conviction dated 27.08.2021, passed by the first respondent, is set aside and this Criminal Revision Case is allowed. Consequently, connected Miscellaneous Petition is closed.
Speaking/Non-speaking order 26.10.2021 Index : Yes / No 8/10 https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017 To
1.The Sub-Divisional Executive Magistrate-cum- Revenue Divisional Officer, Tenkasi.
2.The Inspector of Police, Alwarkurchi Police Station, Tenkasi District.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
9/10 https://www.mhc.tn.gov.in/judis/ Crl.R.C.(MD)No.186 of 2017 R.PONGIAPPAN, J.
smn2 Crl.R.C.(MD)No.733 of 2021 26.10.2021 10/10 https://www.mhc.tn.gov.in/judis/