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1975 DIGILAW 181 (PAT)

S. K. Rai v. State

1975-09-09

D.P.SINHA

body1975
JUDGMENT D. P. Sinha, J. This is an application made by S. K. Rai, M.L.A., for quashing a proceeding under section 107 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' in the following circumstances. 2. On a police report dated 10.9.1974 which, in substance, indicated that there was danger to the life of one Surajdeo Singh at the hands of the petitioner the Sub-divisional Magistrate of Dhanbad drew up a proceeding under section 107 of the Code against the petitioner by his order dated 16.9.1974. On receipt of the notice relating to the proceeding, the petitioner appeared before the Magistrate on 27.9.1974 and subsequently showed cause contending that there was no apprehension of breach of the peace at his instance and that the police report was false. It so happened that Surajdeo Singh got involved in a case of triple murder and was remanded to jail custody on 4.4.1974 and subsequently, he was detained under the Maintenance of Internal Security Act, and was said to be in jail even on the date this application was filed. On 12.10.1974 the police submitted another report praying for action against the petitioner under section 116 (3) of the Code, on receipt of which the Sub-divisional Magistrate called upon the petitioner to show cause why he should not be directed to execute an interim bond of Rs. 2,000/- with two sureties of the like amount-for keeping the peace during the pendency of the proceeding. Subsequently, the matter was considered by the learned Sub-divisional Magistrate and by his order dated 5.6.1975 he directed the petitioner to execute the ad interim bond. 3. It is contended by learned counsel for the petitioner that the order of the Magistrate dated 5.6.1975 directing the petitioner to execute an ad interim bond was without jurisdiction in as much as the entire proceeding stood terminated by virtue of the provisions of section 116 (6) of the Code. The contention of learned counsel appears to be correct and it must prevail. The contention of learned counsel appears to be correct and it must prevail. The provisions of Subsection (6) of section 116 of the Code are as follows :- “The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs : Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention”. It would appear that the Magistrate drew up the proceeding on 16.9.1974 and the petitioner appeared before him on 21.9.74 in response to the notice issued against him in regard to the proceeding. It is, therefore, quite clear that the proceeding under section 116 (1) of the Code commenced with the appearance of the petitioner on 21.9.74. In the circumstances it should have been brought to a close within six months of 21.9.74. This not having been done under the above provision to Sub-section (6) the proceeding stood terminated on the expiry of the period of six months beginning from 21.9.74, because the Magistrate did not direct otherwise, for any special reason. 4. It was contended by learned counsel for the State that the petitioner should have filed an application before the Magistrate asking him to terminate the proceeding by reason of the fact that the period of six months from the date of commencement of the inquiry had expired and that since he did not do so, the proceeding should be deemed to be alive and that the petitioner may, if he so likes move the Magistrate in this behalf for his consideration as to whether or not the proceeding should be terminated. I do not think it is necessary for the petitioner to do so, in view of the explicit and peremptory nature of the provision of sub-section (6) of section 116 of the Code. No. order for terminating the proceeding is required in the sense that if the order for termination is not made, the proceeding still continues. I do not think it is necessary for the petitioner to do so, in view of the explicit and peremptory nature of the provision of sub-section (6) of section 116 of the Code. No. order for terminating the proceeding is required in the sense that if the order for termination is not made, the proceeding still continues. By virtue of the provision of sub-section (6) of section 116 of the Code the termination takes place automatically on the expiry of the period of six months from the date of commencement of the inquiry. The mandate of the legislature in this behalf is peremptory and no order is required to be passed by the Magistrate to terminate it. If the Magistrate wants to keep the proceeding alive for any special reason, or reasons he has to record the same in writing and make a direction to the effect that for the said special reasons the proceeding will continue. But this has to be done before the expiry of the said period of six months and not after the expiry of the said period. It has already been pointed out that in this case the Magistrate did not make any direction for keeping the proceeding alive for any special reason. As such, the proceeding did stand terminated automatically by force of the law after the expiry of six months from 21.9.74. In the circumstances further proceeding taken by the Magistrate subsequent to the expiry of the said period is hereby quashed as being void. The application is accordingly allowed. Application allowed.