MADRAS HIGH COURT SINGLE BENCH (Before: Mr. V. Parthiban, J.) P.SATHISH @ SATHISH KUMAR — Appellant Vs. STATE, — Respondent Crl.R.C. Nos. 137, 955, 970, 982, 991, 993, 1025, 1066, 1142, 1241, 1286, 1322, 137

  • GOOD DAY
    (2019) 2 MWN (Cri) 136: (2019) 2 MLJ (Cri) 556
    MADRAS HIGH COURT
    SINGLE BENCH
    (Before: Mr. V. Parthiban, J.)
    P.SATHISH @ SATHISH KUMAR — Appellant
    Vs.
    STATE, — Respondent
    Crl.R.C. Nos. 137, 955, 970, 982, 991, 993, 1025, 1066, 1142, 1241, 1286, 1322, 1371, 1386,
    1410, 1511, 1164 of 2018 and 54, 72, 87 of 2019 Decided on : 13-02-2019
    Cases Referred
    • Bala @ Balakrishnan Vs. The Administrative Executive Magistrate-cum-Deputy
    Commissioner, Trichy City CDJ 2016 MHC 4491
    • Balamurugan Vs. State, rep.by the Inspector of Police CDJ 2016 MHC 4709
    • Gopalanachari Vs. State Of Kerala, (1980) Supp SCC 649
    • Khatri Vs. State of Bihar, (1981) 2 S.C.R. 408
    • M.Ang Kumar Vs. The Executive Magistrate cum Deputy Commissioner of Police, Law and Order, Madurai CDJ 2017 MHC 7784
    • Maneka Gandhi Vs. Union of India 1978 AIR 597 SC
    • Sathish Kumar Vs. State, rep.by the Inspector of Police, Tiruchirappalli City CDJ 2017 MHC 5939
    • Selvam @ Selvaraj Vs. The Executive Magistrate cum Deputy Commissioner of Police
    Law & Order, Crime & Traffic, Tiruppur CDJ 2017 MHC 4350
    • Suk Das Vs. Union Territory of Arunachal Pradesh AIR 1986 Supreme Court 991
    Counsel for Appearing Parties
    Crl.R.C. No.991 of 2018 -; Mr. J. William Shakesphere, Advocate, for the Appellant; Crl.R.C. No.1025 of 2018; Mr. S. Senthilvel, Advocate, for the Appellant; Cr.R.C. No. 1066 of 2018; Mr.S.Silambu Selvan, Advocate, for the Appellant; Crl.R.C. No. 1070 of 2018; Mr. R.
    Sankarasubbu, Advocate, for the Appellant; Crl.R.C.No.1080 of 2018; Mr.S.Panneerselvan,
    Advocate, for the Appellant; Crl.R.C.No.1142 of 2018; Mr.K.Shanmugam, Advocate, for the
    Appellant; Mr.R.Vivekananthan, Advocate, for the Appellant; Crl.R.C.No.1241 of 2018;
    Mr.V.Parthiban, Advocate, for the Appellant; Crl.R.C.Nos.1286 of 2018 and 1322 of 2018; Mr.M.Illiyas, Advocate, for the Appellant; Crl.R.C.No.1371 of 2018; Mr.M.Rajavelu, Advocate, for the Appellant; Crl.R.C.No.137 of 2018; Mr.D.Gopikrishnan, Advocate. Crl.R.C.No.1386 of 2018 for the Appellant; Mr.V.Jeevagiridharan, Advocate. Crl.R.C.No.1410 of 2018 for the
    Appellant; Mr.G.Mohana Krishnan, Advocate, for the Appellant; Crl.R.C.No.1476 of 2018;
    Mr.C.Prabakaran, Advocate, for the Appellant; Crl.R.C.No.54 of 2019; Mr.A.Veeran,
    Advocate, for the Appellant; Crl.R.C.No.72 of 2019; Mr.G.B.Motcham, Advocate, for the
    Appellant; Crl.R.C.No.87 of 2019; Mr.G.Magesh Kumar, Advocate, for the Appellant;
    Crl.R.C.No.955 of 2018; Mr.M.Aswin, Advocate, for the Appellant; Crl.R.C.No.970 of 2018; Mr.K.S.Kaviarasu, Advocate, for the Appellant; Crl.R.C.No.982 of 2018; Mr.K.Thenrajan,
    Advocate, for the Appellant; Mr.A.Selvendran, Advocate, for the Appellant; Crl.R.C.No.1164 of
    2018; Mr.R.Vivekanandhan, Advocate, for the Appellant; Mr.A.Natarajan Public Prosecutor,
    Assisted by Mr.G.Harihara Arun Soma Sankar, Government Advocate and
    Mrs.V.Sarathadevi, G.A., Mr.Ravikumar Paul, Sr.Advocate Amicus Curiae, Advocate, for the Respondent
    ORDER
    V. Parthiban, J. – This batch of Criminal Revision case is taken up for further hearing after passing orders on merits in the individual Criminal Miscellaneous Petitions, in regard to the exercise of power by the Executive Magistrates concerned under section 122(1)(b) of Cr.P.C., 1973 The power which is exercisable under section 122(1)(b) of Cr.P.C., 1973 has come up for consideration before various Judges of this Court and this Court, in a number of decisions, has held uniformly that a person, whose bond is sought to be revoked under section 122(1)(b) of Cr.P.C., 1973 is to be given opportunity before he is sentenced to undergo unexpired period of bond.
    2. Despite several decisions of this Court holding that fair opportunity need to be afforded to the person concerned, whose bond is taken under Chapter VIII of the Cr.P.C., the Executive Magistrates, on several occasions, failed to follow the decisions of this Court, thereby violating the orders of this Court quite often by not providing meaningful or reasonable opportunity to the person concerned .
    3. In the above circumstances, this Court has bestowed upon itself the task of laying down certain broad principles to be followed by all Executive Magistrates, who are entrusted with the power exercisable under section 122(1)(b) of Cr.P.C., 1973 In discharge of the task, this Court has requested the Bar members to offer suggestions and points in order to come to an equitable and just conclusion, balancing the interest of the persons whose bond is sought to be revoked and the interest of the State through Executive Magistrates, exercising power under section 122(1)(b) of Cr.P.C., 1973
    4. In this regard, this Court has also appointed Shri.Ravi Kumar Paul, Senior Advocate, as Amicus Curiae to assist this Court. This Court has also requested the learned State Public Prosecutor to convey the views of the State in regard to the said subject matter. Several counsels appearing on behalf of the revision petitioners have advanced their arguments and all of them have uniformly concurred that the person, who is charged with for violating bond executed by him must be given an opportunity, which should be meaningful and fair, in terms of Article 21 of the Constitution of India.
    5. According to the learned counsels appearing for the revision petitioners, before a person is condemned to prison, he must be afforded an opportunity of being heard, which is a hallmark of one the established principles of natural justice. The power of the Executive Magistrate under section 122(1)(b) of Cr.P.C., 1973 is circumscribed by the Constitutional mandate as enshrined under Article 21 of the Constitution of India and therefore, the Executive Magistrates need to follow the due process of law, before sentencing any person for violation of the bond condition.
    6. The learned Senior Advocate Shri.Ravi Kumar Paul, Amicus Curiae appointed by this Court would submit that the power to be exercised by the Executive Magistrates has to be within the Constitutional frame work and in the absence of real and meaningful opportunity to the person concerned, such power is prone to misuse at the hands of the mighty State. When a personal liberty is sought to be curtailed and taken away by sentencing the person concerned for the unexpired bond period, it is all the more reason that due and meaningful opportunity must be afforded to him as in the case of a judicial process.
    7. The learned Senior Advocate (Amicus Curiae) has cited the following decisions which formed the basis of the guidelines suggested by him, which are incorporated in the order down below.
    (i) Gopalanachari vs. State Of Kerala, 1980 (Supp) SCC 649 the relevant portion of which is extracted hereunder:
    “In cases under section 110 of the Code, the exercise is often an idle ritual deprived of reality although a man’s liberty is at stake. We direct the trial magistrates to discharge their duties, when trying cases under section 11(), with great responsibility and whenever the counter-petitioner is a prisoner give him the facility of being defended by counsel now that Article 21 has been reinforced by Article 39A. Otherwise the order to bind over will be bad and void. We have not the slightest doubt that expressions like “by habit”, “habitual”, “desperate”, “dangerous”, “hazardous” cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference – that by confirmed habit, which is second nature, the counter-petitioner . is sure to commit the offences mentioned if he is not kept captive. Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury. They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot. To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available. A sociologist may pardonably take the view that it is the poor man, the man without political clout the person without economic stamina, who in practice gets caught in . the coils of section 110 of the Code, although, we as court, cannot subscribe to any such proposition on mere assertion without copious substantiation. Even so, the court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality. After all, the judicial process must not fail functionally as the protector of personal liberty. ”
    (ii) Bala @ Balakrishnan vs. The Administrative Executive Magistrate-cumDeputy Commissioner, Trichy City & Others, CDJ 2016 MHC 4491, the relevant portion of which is extracted hereunder:
    “16.4. The contention of the learned counsel for the respondents that Section 122 Cr.P.C., 1973 did not provided for issuance of notice and therefore, no notice is necessary is answered in the case of Maneka Gandhi vs. Union Of India, reported in 1978 AIR 597, wherein it has been held as under:
    “….. even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper vs. Wands worth Board of Works. “A long course of decision—, beginning with Dr. Bentley’s case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet-the justice of the common law will supply the omission of the legislature”. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, part of the rules of natural justice.”
    (iii) Balamurugan vs. State, CDJ 2016 MHC 4709, rep. by the Inspector of Police and Another. Paragraph Nos.48 & 49 are reproduced hereunder:
    “48.The said detention order does not show whether the revision petitioner was produced before the detaining authority/2nd respondent and whether he has participated in the enquiry. Whether his views were considered. Whether the petitioner has produced any materials. The impugned order is simply duplicating the report of the sponsoring authority/1st respondent. In para 4, the 2nd respondent referred to the several past cases registered as against the petitioner, his earlier detention under Goondas Act. It is irrelevant for the purpose of a detention under section 122(1)(b) Cr.P.C., 1973 It is concerned with the allegation whether the petitioner has breached the security bond executed by him on 09.06.2016. Again referring the past events is outside the scope of an enquiry under section 122(1) (b) Cr.P.C., 1973 However, the 2nd respondent has referred to the past cases, which are also not in proximity on point of time to the present enquiry. The 2nd respondent has simply read the report of the sponsoring authority/1st respondent and in a stray sentence he says that it is necessary to detain him.
    49. However, if we look at section 122(1)(b) Cr.P.C., 1973 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 detention order has been passed mechanically. Under such circumstances, a person’s personal liberty has been taken away. It is in violation of Article 21 of the Constitution of India and the principles laid down by the Hon’ble Supreme Court in Maneka Gandhi vs. Union of India, 1978 AIR 597, wherein the Hon’ble Supreme Court has held that deprivation of one’s personal liberty by a procedure, which is ‘unreasonable’, ‘unfair’, ‘unjust’ and ‘arbitrary’ is against law. The impugned detention order has not been passed in accordance with law. Such taking of/deprivation of a person’s personal liberty will not stand the test of law. The impugned order suffers from legality, propriety and it is vitiated.
    (iv) Order in Crl.R.C.No.620 of 2017 dated 13.06.2017 (Victor vs. State, rep. by Inspector of Police, J-11, Kannagi Nagar ( L & O) Police Station, Chennai, paragraph No.6 of which would run thus:
    “6. Considered the rival submissions made by both the learned counsels. Admittedly, the petitioner after executing the bond, involved in another offence within a period of one month and he has committed breach of the bond, and he was also arrested. Before passing any order under section 122(1)(b) of Cr.P.C., 1973 a reasonable opportunity should be given to the petitioner. In the instant case, the enquiry was conducted on 04.04.2017. On that date, the petitioner was produced by the respondent by a P.T.warrant and only evidence against him was read over and explained to him. Immediately on the same day, the impugned order has been passed without giving any sufficient opportunity to the petitioner to raise his objection, which is in total violation of mandatory requirements under Section 122 Cr.P.C , 1973and also in violation of principles of natural justice. In the above circumstances, the impugned order is liable to be set aside. ”
    (v) Selvam @ Selvaraj vs. The Executive Magistrate cum Deputy Commissioner of Police (Law & Order, Crime & Traffic, CDJ 2017 MHC
    4350, Tiruppur and Another. Paragraph No.43 of the order is reproduced hereunder:
    “43. From the reading of the aforesaid Judgement, which infact was issued on similar facts and circumstances as that of the present one, it is imperative that the Executive Magistrate before passing the detention order cancelling the bond executed by the detenu under section 117 of Cr.P.C,, 1973 has to record the grounds of proof that the petitioner/detenu has violated the bond conditions. In this regard, the Executive Magistrate shall record the reasons as to on what basis the Magistrate has come to a conclusion that the detenu has violated the bond conditions. Also an opportunity of hearing must be given to the detenu. When the detenu is present before the Magistrate, he should be supplied with the materials which are going to be utilised against him for arriving at a just conclusion that he has violated the bond conditions. On supplying such materials in vernacular, (if the detenu is not knowing the language other than his mother tongue), his explanation should be obtained. In this regard, if the petitioner / detenu wishes to engage a lawyer on his side to plead on his behalf, to give a satisfactory explanation on the materials supplied to him, for seeking explanation by the Magistrate, such an opportunity to have a counsel by his choice, also to be provided to him.”
    (vi) Sathish Kumar vs. State, CDJ 2017 MHC 5939, rep.by the Inspector of Police, Tiruchirappalli City & Another. Paragraph Nos.12 and 15 of the said decision are extracted hereunder:
    “12. On perusal of the impugned order of the 2nd respondent, dated 23.03.2017 it is revealed that the petitioner, who was remanded in Crime No.242 of 2017, on 18.03.2017 into judicial custody and was confined at Central Prison, Tiruchirappali, was produced before the 2nd respondent on 23.03.2017 and four witnesses ie., the Inspector of Police, Sub-Inspector of Police of Srirangam Police Station, Village Administrative Officer and Village Assistant of Vellithirumutham Village were examined by the 2nd respondent in the presence of the petitioner. But, no opportunity was given to the petitioner for cross examination of the above witnesses. No copy of the statements of the above witnesses and the copy of the FIR registered in Crime No.821 of 2016, under Section 107 Cr.P.C., 1973 and in Crime No.242 of 2017 against the petitioner are supplied, enabling him to face the enquiry effectively, since the impugned order of detention is passed on on the basis of the above documents. The 2nd respondent relied on the witness statements of 1st and 4th witnesses and other documents for coming to the conclusion to cancel the bond, dated 09.12.2016 in the order itself.
    15. As per the section 122(1)(b) of Cr.P.C., 1973 the Executive Magistrate, before ordering a person to be in jail, shall be satisfied that the person has breached the bond conditions and the Executive Magistrate must also record the grounds for such proof. That means, he must apply his mind and pass orders and he cannot pass orders mechanically. His order must show at least briefly the grounds upon which he has satisfied that the person has breached the bond executed by him. The detention order must disclose the grounds of proof, otherwise, the Court cannot see what has conspired in the mind of the Executive Magistrate in passing the detention order.”
    (vii) Order of this Court dated 31.08.2017 in Crl.R.C.No.1132 of 2017 (Mulla @ Sivakumar vs. 1.State, rep.by the Inspector of Police and another).
    Paragraph No.17 of the said order reads thus:
    “17.Except the official witnesses of the prosecution, such as, the Inspector of Police, Sub Inspector of Police and Police Constables, no other witnesses have given any statement. Moreover, even the statements given by these official witnesses had been shown to the petitioner, it is recorded by the 2nd respondent that, the petitioner had denied the same. When that being so, by merely recording a statement that the petitioner has accepted that he was present in the place of occurrence, but he did not involve in any crime, cannot be the satisfying material or necessary ingredient to invoke Section 122 (1)(b) of the Code. If at all, the statements of the official witnesses are to be accepted by the Executive Magistrate, in order to cross examine the said witnesses, the petitioner should have been given an opportunity of engaging a counsel on his own.”
    (viii) M.Ang Kumar vs. The Executive Magistrate cum Deputy Commissioner of Police, Law and Order, Madurai & Others. CDJ 2017 MHC 7784 Paragraph Nos.15 and 16 of which would run thus:
    “15.In this case on hand, supplying the documents and getting the views or reply from the husband of the petitioner / detenue would not have happened prior to passing of the impugned order. An opportunity of hearing must be given to the petitioner. When the detenue is present before the Magistrate, he should be supplied with materials, which are going to be utilized against him for arriving at a just conclusion that he has violated the terms of the bond. Since the order of detention made by the Executive Magistrate by cancelling the bond under section 122(1)(b) of Cr.P.C., 1973 is an order without charge, without trial and without judgement, the same cannot be without due procedures to be followed in this regard. Since it is a personal liberty of an individual, which is to be infringed it can only be done under the procedures established under law within the meaning of Article 21 of the Constitution of India.
    16.As per section 122(1)(b) of Cr.P.C., 1973 the Executive Magistrate must record his grounds of satisfaction and he must say whether sufficient cause has been established. On perusal of the impugned order, he did not do so. The detention order has been passed mechanically. It is complete non-application of mind. The impugned detention order has not been passed in accordance with law. The impugned order suffers from legality, propriety and it is vitiated. No sufficient opportunity was given to the detenue on 04.07.2017 or prior to that to go through the statements of witnesses. No materials was furnished to face the enquiry conducted by the first respondent to the detenue prior to passing of the impugned order. The previous cases against the detenue referred to by the learned Additional Public Prosecutor at the time of hearing this Revision is outside the scope of the enquiry under section 122(1)(b) of Cr.P.C., 1973 Previous cases are also not mentioned in the impugned order. The impugned order is passed only on the basis of the report submitted by the 4th respondent and the statements of the witnesses. This Court finds in the impugned order that there is no subjective satisfaction of the Executive Magistrate / first respondent to conclude the violation of the bond condition and also for the detention of the detenue.”
    8. On the basis of the above decisions in regard to the subject matter, which is under consideration, the learned Senior Advocate has contested as to how the power should be exercised by the Executive Magistrates under section 122(1)(b) of Cr.P.C., 1973 For the sake of clarity of the subject matter, section 122(1)(b) of Cr.P.C., 1973 is extracted here under:
    “Sec.122.Imprisonment in default of security – (1)(a)………….
    (b)If any person after having executed a bond with or without sureties for keeping the peace in pursuance of an order of a Magistrate under Section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor-in-office may, after recording the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law.”
    9. Apart from the submissions made on behalf of the learned Amicus Curiae, one of the counsels (V.Parthiban) has relied upon a decision of the Hon’ble Supreme Court reported in Suk Das and another vs. Union Territory of Arunachal Pradesh, AIR 1986 Supreme Court 991, wherein the Hon’ble Supreme Court has held as under:
    “5……..It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involved jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. Of course, it must be recognised that there may be cases involving offences, such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State. There can in the circumstances be no doubt that the appellant was entitled to a free legal assistance at State cost when he was placed in peril of their personal liberty by reason of being accused of an offence which is proved would clearly entail imprisonment for a term of two years.
    6. But the question is whether this fundamental right could lawfully be denied to the appellant if he did not apply for free legal aid. Is the exercise of this fundamental right conditioned upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him? Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land……This is the reason why in Khatri & Ors. vs. State of Bihar & Ors., (1981) 2 S.C.R. 408, we ruled that the Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. We deplored that in that case where the accused were blinded prisoners the Judicial Magistrate failed to discharge obligation and contented themselves by merely observing that no legal representation had been asked for by the blinded prisoners and hence none was provided. We accordingly directed “the Magistrates and Sessions Judges in the country to inform every accused who appear before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State” unless he is not willing to take advantage of the free legal services provided by the State. We also gave a general direction to every State in the country…..”
    10. The learned Senior Advocate, by collating the principles laid down by the Hon’ble Supreme Court of India and also this Court, has suggested broad guidelines to be followed by all the Executive Magistrates uniformly.
    11. On behalf of the State, the State Public Prosecutor has appeared on request and few suggestions were made and the State has expressed certain difficulties in conducting a full-fledged trial. According to the learned State Public Prosecutor, as per the statistics available, there was no abuse of power by the Executive Magistrates. He would submit that approximately 1000 to 1400 persons were executing bonds yearly, but only 0.2% of them were bound down and detained in one year period.
    12. According to the State Public Prosecutor, the presence of Advocate is not necessary for practical reasons and their presence would vitiate the enquiry process to be initiated by the Executive Magistrates concerned. Moreover, he would submit that the Executive Magistrates are vested with several other administrative duties and cannot be expected to conduct full-fledged trial before revoking the bond executed by the persons concerned. However, the learned State Public Prosecutor agreed in his suggestions that an opportunity needs to be given to the person concerned and there cannot be two opinions about that.
    13. According to the learned Public Prosecutor before an order of detention is to be passed only the blood relation of the person concerned is to be allowed for assisting him/her. However, the learned Public Prosecutor has also agreed that the Executive Magistrate should pass a detailed speaking order and the copies of the order should be provided to the person concerned. In fact, the learned Public Prosecutor in substance has agreed to the suggestions projected by the learned Senior Counsel, except certain reservations as indicated above.
    14. This Court has given its anxious consideration to the suggestions made by the learned Senior Advocate Shri Ravi Kumar Paul, who was appointed as Amicus Curiae, and also other advocates appearing for the revision petitioners and the learned State Public Prosecutor Mr. A. Natarajan.
    15. As regards the objection by the State for providing legal assistance the persons concerned, Article 22 of the Constitution mandates for such provision. Article 22 of the Constitution reads as under:
    22. Protection against arrest and detention in certain cases.
    (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
    Therefore, the objection by the learned Public Prosecutor that the persons need not be represented by Advocates in the enquiry is constitutionally unacceptable and therefore, the same is liable to be rejected.
    16. The suggestions/guidelines, which were given by the learned Senior Advocate, are integral part of various orders passed by the Hon’ble Supreme Court as well as this Court by various Judges at different points of time. However, it appears that despite several orders passed by this Court, routinely orders are being passed by the Executive Magistrates concerned without giving proper opportunities to the persons concerned, resulting in interference by this Court quite often by entertaining revision petitions filed against the orders passed by the Executive Magistrates.
    17. Therefore, this Court in order to lay down the legal principle, in regard to the power to be exercised by the Executive Magistrates under section 122(1)(b) of Cr.P.C., 1973 vis-a-vis the personal liberty of the persons concerned, is bound to accept the suggestions as given by the learned Senior Advocate Shri Ravi Kumar Paul, in its entirety. Since as already observed earlier, these suggestions do emanate from the various decisions of this Court held by various Judges and the suggestions are the consolidated legal principle laid down by this Court over a period of time.
    18. Moreover, the guidelines are integral part of Articles 21 & 22 of the Constitution of India and also in consonance with Section 39-A of the Direct Principles of State Policy. No doubt, the State may have practical difficulties and may confront glitches in completing the enquiry in furtherance of exercise of power under section 122(1)(b) of Cr.P.C., 1973 nevertheless, the Constitutional mandate, as provided under Articles 21 & 22 of the Constitution is paramount and supreme and the same has to be followed under all circumstances, notwithstanding the difficulties to be faced by the administration.
    19. When the liberty of an individual is sought to be affected and curtailed, the State is bound to provide legal assistance and also provide meaningful and fair opportunity to the persons concerned. In the absence of such opportunity, as aforementioned, the orders to be passed by the Executive Magistrates is prone to interference as being unconstitutional and contrary to the legal principles laid down by this Court. When a State is governed by a written Constitution and when the Constitution reigns supreme in our polity, it is the bounden duty of the State to protect the personal liberty of the citizen by following the constitutional mandate and the personal liberty cannot be made a casualty on the basis of administrative expediency.
    20. That alone can uphold the rule of law. When the personal liberty of a person is sought to be taken away by condemning him into prison for an unexpired period of bond, it is statutorily and constitutionally imperative that the person concerned must be given the benefit of meaningful, real and fair opportunity, as that alone would be the safeguard for the citizens against misuse of the provisions of Cr.P.C., by the Executive Magistrates concerned.
    21. In the conspectus of the above, this Court is of the considered view that the suggestions/guidelines as given by the learned Senior Advocate and others on one side and the learned Public Prosecutor on the other side have been considered by this Court and the following legal principles emerge on such consideration:
    a. 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 , 1973should not be taken for breach of the bond executed under Section 117 Cr.P.C , 1973on a date fixed.
    b. 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).
    c. 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.
    d. The Executive Magistrate shall inform the person about his right to have the assistance of a lawyer for defending him in the enquiry.
    e. 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.
    f. 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.
    g. 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.
    h. An order under section 122(1)(b) of Cr.P.C , 1973should contain the grounds upon which the Executive Magistrate is satisfied that the person has breached the bond.
    i. A copy of the order should be furnished to the person along with the materials produced at the enquiry.
    j. 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.”
    22. The above legal principles as evolved to be followed by all the Executive
    Magistrates concerned in future. In order to infuse uniform approach by all the Executive Magistrates concerned, the learned State Public Prosecutor is directed to circulate this decision to the Government and the Government shall act upon the principles as laid down above and issue necessary instructions to all the designated Executive Magistrates to follow the principles strictly while exercising their power under section 122 (1) (b) of Cr.P.C., 1973. In the result, all the Criminal Revision Cases are allowed and the respective impugned orders are hereby set aside.
    23. Finally, before parting with this case, this Court places on record its appreciation to the immense legal assistance rendered by the learned Senior Counsel Mr. Ravikumar Paul on one side and the State Public Prosecutor on the other. The Court also places on record its appreciation of contribution of various advocates appearing for the revision petitioners.
    Complied for Legal Eagles Elites by S.Manikandan Advocate Mannargudi

  • You may also like...

    WP Twitter Auto Publish Powered By : XYZScripts.com
    Call Now ButtonCALL ME