Allowed

Jose @ Thangajose v. The Executive Magistrate No.Ii Cum Tahsildar

Madras HC1 Apr 2021CRL RC(MD)/241/2021

Case brief

AI extract

What is this about?

The Madurai Bench set aside an order under Section 122(1)(b) Cr.P.C. passed by an Executive Magistrate. The court held that the order was invalid as no enquiry was held, no documents were provided to the petitioner, and legal assistance was withheld.

What did the court decide?

The impugned order dated 10.02.2021 under Section 122(1)(b) Cr.P.C. is set aside and the criminal revision case is allowed.

Jose @ Thangajose Vs The Executive… — Constitutional and Fundamental Rights | Madras HC (2021)

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Crl. R.C.(MD)No.241 of 2021

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATE : 01.04.2021

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CORAM

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THE HONOURABLE MRS. JUSTICE R. THARANI

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Crl. R.C.(MD)No.241 of 2021

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and Crl.M.P.(MD)No.2485 of 2021

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Jose @ Thangajose .. Petitioner/Respondent

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Vs.

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1.The Executive Magistrate No.II Cum Tahsildar, Thovalai, Kanyakumari District. 2.The Inspector of Police, Aralvoimozhi Police Station, Kanyakumari District Cr No. 7/2021.

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Prayer : This criminal revision case is filed under Sections 397 r/w 401 of Cr.P.C., to call for the records to set aside the order dated 10.02.2021 made in Na.Ka.No.A4/196/2021 on the file of the 1^st respondent and release the Detenue namely Jose alias Thangajose. S/o.Moses Roy aged about 20 years detained in Central Prison, Palayamkottai.

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For Respondents : Mrs.S.Bharathi

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Government Advocate

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ORDER

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This Criminal Revision Case has been filed to set aside the order dated 10.02.2021 made in Na.Ka.No.A4/196/2021 on the file of the 1st respondent

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2.On the report of the second respondent, the first respondent initiated proceedings in L.I.R.No.11/Security/N5 Ps/2020, in M.C.No.06 of 2020, has obtained a bond from the revision petitioner to maintain peace and good behavior for a period of one year on 10.08.2020. Subsequently, 04.01.2021, the petitioner involved in another case in Crime No.07 of 2021 and he was arrested. On the report of the second respondent, the first respondent initiated proceedings and passed the impugned order on 10.02.2021. Against the impugned order, the petitioner preferred this Criminal https://hcservices.ecourts.gov.in/hcservices/

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Crl. R.C.(MD)No.241 of 2021

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Revision.

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3.On the side of the revision petitioner, it is stated that show cause notice was issued to the petitioner on 02.01.2021. No opportunity was given to the petitioner, only within 24 hours, the petitioner was produced before the first respondent. Since the petitioner was in custody, he could not file any reply on 08.02.2021. Copies of documents were not furnished to the petitioner. Legal assistance was not provided to the petitioner. The order was passed on 10.02.2021 and prayed the impugned order to be set aside.

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4.On the side of the petitioner, it is stated that the first respondent is not having the jurisdiction to pass the order. A judgment of this Court reported in 2019 (2) MWN (Criminal) 136 (P.Sathish @ Sathish Kumar Vs. State) is cited.

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5.On the side of the respondent, it is stated that on the report of the second respondent in L.I.R.No.11/Security/N5 Ps/2020, after a detail enquiry the first respondent directed the petitioner to execute a bond in M.C.No.06 of 2020, on 10.08.2020, to maintain peace and good behavior for a period of one year. But, subsequently, the petitioner involved in another offence in Crime No.7 of 2021 under Section 392 r/w. 397 and 506 (ii) I.P.C. and he was arrested on 04.01.2021. On the report of the second respondent, the first respondent initiated the proceedings under Section 122(1) (b) Cr.P.C. and after following all the procedures, the impugned order was passed by the first respondent and that the petitioner involved in four previous cases. The four previous cases are as follows:

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SI. No.	Name of the Police Station	Crime No. and Sections	Present Sta the Case	ge of
1.	Aralvaimozhi	Cr.No.345 / 2018 U/s.323, 506(ii) I.P.C., 4 of TNPWH Act	PT, C.C.No 2019 21.02.2019	.18 / dated
2.	Aralvaimozhi	Cr.No.44 / 2019 U/s.323, 506(ii) I.P.C., 4 of TNPWH Act	Charge filed	sheet
3.	Aralvaimozhi	Cr.No.77 / 2019 U/s.294(b) I.P.C.,	Convicted Rs.1000/- 13.07.2019	fine on
4.	Aralvaimozhi	Cr.No.321 / 2020 U/s.294(b), 324,, 506 (ii) I.P.C.,	Charge filed	sheet

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and prayed the petition to be dismissed.

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Crl. R.C.(MD)No.241 of 2021

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6.On the side of the respondent, it is stated that the first respondent is having power to pass the order under Section 110 Cr.P.C. and the question raised by the revision petitioner regarding locus standi of the first respondent is pending before the Larger Bench. The power of the first respondent was not cancelled by any Court or by any Government Order.

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7.A perusal of the impugned order reveals that no copies of documents were furnished to the petitioner. No enquiry was conducted. No witness was examined by the first respondent. Only based on the report of the second respondent, the impugned order was passed. Since the procedures are not duly followed by the first respondent, the impugned order passed by the first respondent is hereby set aside.

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8.Hence, this Criminal Revision Case is allowed. Consequently, connected Miscellaneous Petition is closed.

Assistant Registrar

// True Copy //

NOTE: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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1.The Executive Magistrate No.II Cum Tahsildar, Thovalai, Kanyakumari District.

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2.The Inspector of Police, Aralvoimozhi Police Station, Kanyakumari District

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3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

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https://hcservices.ecourts.gov.in/hcservices/

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