The importance of principles of natural justice, opportunity of hearing, and application of mind by the Magistrate before passing the detention order.

JUDGMENT

(Prayer: Criminal Revision Case filed under Section 397 and 401 Cr.P.C., to call for the records relating to the order passed in M.C.No. 18/2020/A7, dated 31.03.2022 on the file of the first respondent and set aside the same.)

1. This Criminal Revision Case is filed to set aside the order passed in M.C.No.18/2020/A7, dated 31.03.2022, on the file of the first respondent and thereby, detain the petitioner for remaining bond period.

2. The petitioner executed a bond under Section 110 Cr.P.C for a period of two years on 17.08.2020. After execution of the bond, the petitioner involved in another case registered in Crime No.335 of 2021 registered for the offence under Section 25(i)(a) of Arms Act. After his arrest, he was released on bail. Again the petitioner involved in Crime No.29 of 2022 registered for the offence under Sections 294(b) and 506(ii) IPC. In pursuant to the said crime, he was arrested and remanded to judicial custody. The same was intimated to the first respondent by second respondent. On receipt of the same, the first respondent vitiated proceedings under Section 122(i)(b) Cr.P.C by issuance of show cause notice as contemplated under Criminal Procedure Code to the petitioner. On receipt of the same, the petitioner engaged an Advocate and appeared for enquiry on 22.03.2022. The counsel who represented on behalf of the petitioner before the first respondent requested time to file their reply. However, the first respondent after recording report of the second respondent passed the impugned order. Admittedly, the petitioner has been given an opportunity of hearing and he was not given opportunity to cross-examine the witnesses and pass impugned order.

3. In this regard, it is also relevant to rely upon the judgment of the this Court reported in 2022 (1) MWN (Cr.)438 – (J.Gopalakannan Vs. Sub-Divisional Executive Magistrate cum Revenue Divisional Officer, Palani and others) is held as follows:

“5. The above legal principles as evolved to be followed by all the Executive Magistrate concerned as directed by this Court. However, as stated above, no opportunity of hearing to the petitioner and no opportunity to engage the counsel to appear on his behalf were given to the petitioner and it amounts to clear violation of principles of natural justice.

6. More over the satisfaction of the Magistrate has to be recorded in the impugned order and it should be based upon the materials produced by the police officers. As per the Section 122(3) of Cr.P.C., the first respondent before cancelling the bond executed by the petitioner, he shall be satisfied that the person has breached the bond conditions and he must also record the satisfaction for proof. Before passing the order, he must apply his mind and pass orders and it could not be passed mechanically. Further the detention order must disclose the grounds of proof and satisfaction of the Magistrate and it has to be recorded in the impugned order and the said satisfaction should be based on the materials which was produced by the police officer concerned as well as the contra materials if any, that could be produced by the person, whom against the proceeding has sought to be invoked.

7. On a perusal of the impugned order would show that the first respondent passed the impugned order without application of mind and there is no explanation called for the violation of the terms of the bond from the petitioner and no opportunity of hearing was given to the petitioner. That apart, the impugned order further says that there is an appeal remedy and the petitioner can appeal before the District Judge and the District Collector within a period of 30 days as against the order passed under Section 122(1)(b) of Cr.P.C. It is completely without application of mind and it is nothing but cut and paste from other orders. Therefore, it shows that the first respondent passed the impugned order without application of mind and as such, it cannot be sustained as against the petitioner