[S.122 (1)(b) Cr.P.C ] HC reiterated: 10-pointer procedure to be followed by the Executive Magistrate while enquiring

 

Justice G. Ilangovan allowed a petition filed by Ibramsha/petitioner who was detained by the. The Inspector of Police, Dindigul Town South Police Station, Dindigul District, after an order was passed by the Second-Class executive following an enquiry, but the petitioner claimed that the due procedure was not followed by him. The court relied on its decision in the case of Sathish Kumar Vs. State represented by the Inspector of Police, and reiterated the procedure which has to be followed.

 Brief Facts:

A criminal revision case was filed under Sections 397 r/w 401 of the Criminal Procedure Code against the order passed by the Second-Class Executive Magistrate. The proceedings were initiated against the petitioner under Section 122(1)(b) Cr.P.C. and the petitioner was jailed, stating that the petitioner was involved in offences and disturbed the public peace. It was stated that on 20.12.2022 the above said order was passed only based on the FIR in Crime No.207 of 2022 on the file of the second respondent (inspector of police) registered for the offence punishable under Sections 392 and 506(ii) IPC and no enquiry was undertaken as contemplated under Section 122 (1)(b) of Cr.P.C. This shows that there was absolutely no application of mind and the due procedure wasn’t followed.

Contentions of the Respondents:

It was submitted by the Government Advocate representing the respondent that he followed the necessary procedure while enquiry. According to the Additional Public Prosecutor enough opportunity was provided to the petitioner, and even after executing sureties he was again involved in the offence and hence the order passed against him is justified. 

 

 Contentions of the Petitioner:

The learned counsel for the petitioner heavily based his contentions on the court’s decision in Sathish Kumar Vs. State represented by the Inspector of Police, 2019 which lists down the procedure to be followed by the executive magistrate while enquiry, and claimed that in the present case the order passed by the Second-Class Magistrate was based only on the FIR of the crime and no other procedure was followed and hence it should be set aside.

Observations of the Court:   

The court allowed the petition and the order was to be set aside, however the respondent could initiate fresh action against the petitioner and this time proper procedure of enquiry has to be followed. The procedure was listed out in the case of Sathish Kumar Vs. State represented by the Inspector of Police and the court relied on it while passing the judgment:

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 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 
8. 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 cooperate with the enquiry process for its expeditious completion.

Decision of the Court:

The court ordered that the petitioner must be released from prison. The petition was allowed and the order passed by the respondent was to be set aside. 

 

Case Title: Ibramsha vs The Second-Class Executive Magistrate cum Thasildhar, Dindigul West Taluk, Dindigul District and Anr.

Coram: Honorable Mr. Justice G. Ilangovan

Case No.: Crl.R.C.(MD). No. 32 of 2023

 

Advocate for the Petitioner: Mr. D. Venkatesh

Advocate for the Respondent: Mr. R. Suresh Kumar (Government Advocate)

Read Judgment ;

 

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