JUDGMENT SHAMBHU PRASAD SINGH, J. 1. This Criminal Writ application has been filed in the following circumstances. A proceeding under section 107 of the Code of Criminal Procedure was drawn up as against the petitioners on 10th of May, 1974. After service of notice on them, on 5th of September, 1974, the petitioners filed their show cause. On 17th of October, 1974, both parties requested the Magistrate to fix a date for producing their witnesses and he fixed 2nd of November 1974, for the purpose. On 2nd of November, 1974, the parties appeared but they did not produce their witnesses. No witness therefore, could be examined on that date. For some reason or the other the witnesses could not be examined even on several dates fixed in the case thereafter. On 1st of March, 1975, an application was filed on behalf of the petitioners that since the proceeding had been pending for more than six months, it stood automatically terminated. On that question arguments of the lawyers of both the parties were heard on 3rd of March, 1975 and 10th of March, 1975 was fixed for orders. The Magistrate could not, however, pass the order on 10th of March, 1975 and several other dates fixed thereafter for the purpose. He passed the orders on 15th of May 1975, rejecting the petition of the petitioners. He held that he was satisfied that even on 15th of May 1975, there was serious apprehension of a breach of the peace at the hands of the petitioners and therefore, termination of the proceeding might cause danger on the life of the first party to the proceeding (respondent no. 4 before this court at whose instance the proceeding was started) and under the circumstances it was not safe to terminate the proceeding but to continue the same in order to avoid serious breach of the peace. As against that order the petitioners filed an application in revision before the Sessions Judge of Saharsa. The learned Sessions Judge dismissed their application by his order dated 17th of June, 1975. As against the order of the Sessions Judge, the petitioners filed a criminal miscellaneous application before this court which was dismissed at the time of admission on the ground that really it was second application for revision before this court and was not maintainable as the petitioners had already moved the Sessions court in revision. As against the order of the Sessions Judge, the petitioners filed a criminal miscellaneous application before this court which was dismissed at the time of admission on the ground that really it was second application for revision before this court and was not maintainable as the petitioners had already moved the Sessions court in revision. Then the petitioners filed this application under Articles 226 and 227 of the Constitution. 2. On behalf of the petitioners reliance has been placed on sub-section (6) of section 116 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and it has been submitted that as the enquiry could not be completed within a period of six months from the date the proceeding was drawn up, it stood automatically terminated. Sub– Section (6) of section 116 of the Cede reads as follows:– "(6) The enquiry under this section shall be completed within a period of six months from the date of its commencement and if such enquiry 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 reason unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention." In reply it has been contended on behalf of the respondents that an inquiry under section 116 of the Code does not start with the drawing up of the proceedings. It starts only when some evidence is led in the proceeding and as in this case no evidence was led there was no commencement of the enquiry. In support of this contention, learned counsel for the respondents placed before us the decision in Madhu Limaye & another vs. Ved Murti, A.I.R. 1971 S.C.2481. It starts only when some evidence is led in the proceeding and as in this case no evidence was led there was no commencement of the enquiry. In support of this contention, learned counsel for the respondents placed before us the decision in Madhu Limaye & another vs. Ved Murti, A.I.R. 1971 S.C.2481. Learned counsel for the petitioners has drawn our attention to a recent decision of a Bench of this Court in Nokha Singh & others vs. Parvati Kuer & another, 1974 B.B.C.J. 460 and submitted that the aforesaid Supreme Court decision in Madhu Limaye & another vs. Ved Murti was considered by this court in this decision and it was held that it is not necessary that an enquiry as contemplated under section 116 of the Code does not commence until evidence is led in the case. According to learned counsel for the petitioners, the enquiry commences if the reason in respect of whom an order under section 111 is made is present in Court at that time and the order is read over to him as required by section 112, and in cases where he is not present at the time, when he appears or is brought before the Magistrate in compliance with or in execution of summons or warrant issued under section 113 of the Code. It has been submitted that the aforesaid Bench decision of this Court in Nokha Singh's case supports this view. 3. It was also urged on behalf of the respondents that in no case the inquiry should be taken to have commenced before 17th of October, 1974 and as the Magistrate heard arguments within six months from that date, his order dated 15th of May, 1975 holding that the proceeding ought not to be terminated but should continue should relate back to the date when he heard arguments. It was further urged that an order under section 116 (6) of the Code for continuing the proceeding may be passed even after six months of the commencement of inquiry and such an order would validate the proceeding retrospectively. It was further urged that an order under section 116 (6) of the Code for continuing the proceeding may be passed even after six months of the commencement of inquiry and such an order would validate the proceeding retrospectively. Learned counsel for the respondents also contended that in case it is held that the proceeding under section 107 of the Code which was drawn up on 10th of May, 1974 stood automatically terminated before 15th of May, 1975 and the Magistrate could not continue it by an order of that date, then that order of his should be taken to be an order starting a fresh proceeding under section 107 of the Code. He also urged that after criminal miscellaneous application of the petitioners had been dismissed by this court as not maintainable, the order of the Magistrate and the Sessions Judge could not be challenged before this court by filing this writ application. 4. On the aforesaid submissions of learned counsel for the parties, the following questions arise for decision in the case:– (i) When an inquiry as envisaged by section 116 (1) of the Code commences? Does it commence only when evidence is led in the proceeding, or it commences if the person against whom an order is made under section 111 of the Code is present in court at that time and the order is read over to him as required by section 112 of the Code or if he Is absent, when he appears or is brought before the court in compliance with or in execution of summons or warrant issued under section 113 of the Code or a third alternative is also possible and the inquiry commences when the Magistrate applies his mind to the facts of the case in presence of the person against whom an order is made under section 111 of the Code ? (ii) Does the proceeding automatically terminate on expiry of six months from the commencement of the inquiry and whether it is necessary that an order as contemplated by section 116 (6) of the Code for continuing it beyond six months must be passed before expiry of the said period from the commencement of the inquiry ? (ii) Does the proceeding automatically terminate on expiry of six months from the commencement of the inquiry and whether it is necessary that an order as contemplated by section 116 (6) of the Code for continuing it beyond six months must be passed before expiry of the said period from the commencement of the inquiry ? (iii) Whether the order dated 15th of May, 1975 should relate back to 3rd of March, 1975 when arguments of the parties in the case were heard and should be deemed to have been passed on that date for the purposes of continuing the inquiry. (iv) Whether the said order dated 15th of May, 1975 should be construed as an order drawing up a fresh proceeding under section 107 of the Code? (v) Whether after this court had dismissed the criminal miscellaneous application of the petitioners holding it as not maintainable, the present writ application was maintainable? Question No. 1 – 5. As noticed earlier, sub-section (6) of section 116 of the Code requires that the proceedings shall ordinarily stand terminated if the inquiry under the section is not completed within the period of six months from the date of its commencement. Sub-section (3) of the section also uses the expression 'commencement' and provides for execution of interim bonds after the commencement and before the completion of the inquiry under sub-section (1). According to sub-section (1), the Magistrate has to proceed to inquire only when an order under section 111 has been read or explained under section 112 to a person present in court or when any person appears or is brought before a Magistrate in compliance with, or in execution of a summons or warrant, issued under section 1) 3 of the Code. In Madhu Limaye & another vs. Ved Murti, A.I.R. 1971 S.C.2481, already referred to above, the learned Judges of the Supreme Court, with reference to subsection (3) of section 117 of the Code of Criminal Procedure, 1898 (here-in-after referred to as 'the old Code'), which corresponds to section 116 (3) of the Code, observed as follows: – "It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and 'during the completion of the enquiry' postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and hear no body and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan and Ved Murti Bhatt or any of the witnesses named in the challan. Nothing of this kind was done. Therefore the proceedings for asking for interim bond were completely illegal" As the learned Judges of the Supreme Court, in the above quoted passage made reference to examination of witnesses, it has been contended on behalf of the respondents that the inquiry as envisaged by section 116 (1) of the Code does not commence unless some evidence is led. In Jagdish Prasad vs. State of Bihar, A.I.R. 1957 Pat 106, a Bench of this Court made observations which indicate that an inquiry under section 117 of the old Code might commence even before witnesses are actually examined in the inquiry. It was on that account that before the Bench hearing Nokha Singh's case it was urged by learned counsel for the petitioners of that case that the decision in Jagdish Prasad case stood over-ruled by the decision of the Supreme Court in Madhu Limaye vs. Ved Murti. The learned Judges of the Bench hearing Nokha Singh's case rejected that contention and referred to another decision of the Supreme Court in Madhu Limaye vs. S.D.M. Monghyr & others, A.I.R. 1971 S.C. 2486, where in the learned Judge of the Supreme Court approved of the decision in Jagdish Prasad case. After examining the language of sections 117 (1) and 242 of the old Code, the learned Judges observed as follows:– "Therefore, when the person proceeded against appears in pursuance of the notice under section 112, as in the instant case, the stage of section 117 is reached. Section 117 (1) does not lay down that inquiry does not commence unless a witness has been examined or the person proceeded against has been further interrogated, as urged by Mr. Roy. Section 117 (1) does not lay down that inquiry does not commence unless a witness has been examined or the person proceeded against has been further interrogated, as urged by Mr. Roy. It may be adjourned for the absence of parties proceeded against or for similar reasons but nevertheless the stage as contemplated under section 117 (1) of the Code begins. Sub-section (2) of section 116 of the Code lay, down that inquiry under sub-section (1) shall be made as nearly as may be practicable in the manner herein after prescribed for conducting trials and recording evidence in summons cases. Section 251 of the Cede, which corresponds to section 242 of the old Code, which is the first section in Chapter XX of the Code dealing with trial of summons cases by Magistrates' reads as follows:– "When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge." Sections 252 and 253 of the Code provide for conviction of the accused on plea of guilty in his presence or absence, as the case may be. Conviction on plea of guilty in absence of accused is possible only in petty cases where a summons has been issued under section 206 of the Code and the accused pleads guilty in writing without appearing before the Magistrate and transmits by post or by messenger the amount of fine specified in the summons. Section 284, inter alia, provides that if the Magistrate does not convict the accused under section 252 or section 253, he shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. From the provisions of some of the sections of Chapter XX of the Code, as referred to above, it is clear that it cannot be contended or held that the trial of summons cases does not commence unless evidence is not taken in the case. From the provisions of some of the sections of Chapter XX of the Code, as referred to above, it is clear that it cannot be contended or held that the trial of summons cases does not commence unless evidence is not taken in the case. It is manifest that in cases where the accused appears or is brought before the Magistrate, the trial commences in a summons case as soon as the particulars of the offence of which he is accused is stated to him and he is asked whether he is guilty or not. In cases where summons are issued under section 206 and the accused does not appear but pleads guilty in writing and transmits the amount of fine specified in summons either by post or by messenger, the trial commences as soon as the Magistrate applies his mind to such plea. If a trial in a summons case can commence without taking of evidence, an inquiry as envisaged by section 116 (1) of the Code, in which the procedure laid down for trial of summons cases is to be followed, can I also commence before evidence is led in it. In my opinion, therefore, it is not possible to accept the contention of learned counsel for the respondent that an inquiry under section 116 (1) of the Code does not commence unless some evidence is led in the proceeding. 6. The next matter which may arise for consideration in connection with question no. (1) is whether the inquiry as envisaged by section 116 of the Code commences if the person against whom an order is made under section 111 of the Code is present in court at that time and the order is read over to him as required by section 112 of the Code. Answer to this is not free from difficulty. It may be said that the inquiry does commence as soon as the allegations are read over and explained to the person against whom they are made. Answer to this is not free from difficulty. It may be said that the inquiry does commence as soon as the allegations are read over and explained to the person against whom they are made. It can also be contended that as section 112 of the Code does not provide for putting it to the person against whom an order is made under section 111 of the Code whether he accepts the allegations or denies them, the inquiry does not commence at that stage, rather the language of section 116 (1) supports the latter contention, for, it says that the Magistrate shall proceed to inquire into the truth thereafter. In other words, he does not proceed with the enquiry when he reads and explains under section 112 the allegations to the person against whom an order under section 111 has been made. The inquiry may commence only after such a person files his show cause and when the Magistrate applies his mind to that show cause. That in my opinion will be the more correct view. However as in the instant case before us, this matter does not arise for decision, for, it is not a case where the person against whom an order under section 111 of the Code was made was present in court at that time and the order was read over and explained to him then and there as required by section 112 of the Code, the matter need not be discussed any further. 7. In cases where the person against whom an order under section 111 is made is not present in court and he appears or is brought before the court in compliance with or in execution of summons or warrant issued under section 113 of the Code, in my opinion, the inquiry cannot commence unless he files his show cause and the Magistrate applies his mind to that show cause. The mere fact that such a person appears before the court or is brought before the court does not lead to the commencement of the inquiry. As is evident from the language of section 116 (1) of the Code, already referred to above, the inquiry will commence when the Magistrate proceeds to inquire into the truth of the information upon which action has been taken. As is evident from the language of section 116 (1) of the Code, already referred to above, the inquiry will commence when the Magistrate proceeds to inquire into the truth of the information upon which action has been taken. Reference in this connection may be made to a decision of Travancore Cochin High Court in the case of Jalaluddin Kunju vs. State of Bihar, A.I.R. 1952 Tr. Co. 262. This was also a case which was referred to by the learned Judge of the Supreme Court in the decision in Madhu Limaye vs. S.D.M. Monghyr & others, A.I.R. 1971 S.C. 2486. The learned Judges who delivered the decision in Nokha Singh's case have taken the view that this decision which lay s down that an inquiry commences at least when the person sought to be proceeded against are brought or appear before the court to answer the charge against them was approved by the learned Judge of the Supreme Court in the said decision. Undoubtedly this decision was referred to with approval by the learned Judges of the Supreme Court but in support of the view that sub-section (1) and sub-section (2) of section 117 of the Code envisage that the Magistrate must proceed to inquire into the truth of information and only after prima facie satisfying himself about the truth and recording his reasons in writing can ask for the interim bond and against the view that action can be taken under subject on (3) as soon as the person appears because then the Magistrate may be said to have entered upon the inquiry. In my opinion the decision of the Supreme Court in Madhu Limaye vs. S.D.M. Monghyr & others, A.I.R. 1971 S.C. 2486, does not approve of the aforesaid decision of the Travancore Cochin High Court in all respects. It approves of the decision only to the extent referred to in the judgment. This becomes more evident from the observations of the learned Judges of the Supreme Court in their other decision Madhu Limaye & another vs. Ved Murti, A.I.R. 1971 S.C.2481. My considered opinion, therefore, is that an inquiry as envisaged by section 116 of the Code commences only when the Magistrate applied his mind to the facts of the case in presence of the person against whom an order is made under section 111 of the Code. My considered opinion, therefore, is that an inquiry as envisaged by section 116 of the Code commences only when the Magistrate applied his mind to the facts of the case in presence of the person against whom an order is made under section 111 of the Code. On the facts of the present case, I am of the opinion that in this case the inquiry commenced on 17th of October, 1974, when the Magistrate fixed a date for production of the witnesses by the parties. He must be deemed to have applied his mind to the show cause of the petitioners on that date, in other words to the facts of the case in their presence. Though the petitioners filed their show cause on 5th of September, 1974, there is nothing in the order sheet of the case to indicate that the Magistrate applied his mind to what was stated in the show cause on that date or any other date before 17th of October, 1974. Question No. (ii) – 8. The language of sub-section (6) of the Code, which has already been quoted above prima facie shows that the proceeding shall stand automatically terminated if it is not completed within six months from the commencement of the enquiry except in cases where for special reasons to be recorded in writing the Magistrate otherwise directs. Does it follow from the said language that the order containing such direction must be passed within six months of the commencement of the inquiry? In my opinion, it does not. The Magistrate must apply his mind to the question whether the enquiry should continue or not beyond six months within the period of six months from the commencement of the enquiry. If that is not done and the enquiry is allowed to continue, then the whole purpose for which sub-section (6) has been enacted will be frustrated in cases where the Magistrate has applied his mind to the question, but, for some reason or the other has not passed the order within the period of six months and passes it thereafter, for the reasons which I shall give hereafter while dealing with question no. (iii) as formulated, the enquiry should continue and ought not to stand automatically terminated. Question No. (iii) – 9. (iii) as formulated, the enquiry should continue and ought not to stand automatically terminated. Question No. (iii) – 9. From the facts of the case referred to earlier, in the present case, the arguments on the question whether the enquiry stood ternated or should continue was considered by the Magistrate on 3rd of March, 1975 within six months from 17th of October, 1974 when as held earlier the inquiry commenced, but he passed the order on 15th of May, 1975. In my opinion, the order dated 15th of May 1975 should relate back to 3rd of March, 1975 and should be deemed to have passed on that date for the purpose of continuing the enquiry six months from 17th of October, 1974 would have expired on 17th of April, 1975. If the Magistrate would have passed the order in a reasonable time from 3rd of March, 1975 and informed the opposite party (before this Court) that the enquiry would stand automatically terminated on 17th of April, 1975, the opposite party might have produced his witnesses and in due time and the enquiry would have been completed. It is a well established principle of law that no party to a litigation should be made to suffer on account of some fault on the part of the Court. The maxim is actus curaie neminem, gravabit–the Act, of the court shall prejudice no man. In support of this view I may refer to two old decisions. (i) Ramacharya & others vs. Anantacharya & others, I.L.R. 21 Bom 314 and (ii) Chetan Chanan Das & others vs. Balbhadra Das, I.L.R. 21 All 314, Rule 6 of Order 22 of the Civil Procedure Code, 1908 has been enacted on the basis of the aforesaid maxim. There was no such provision in the Code of Civil Procedure as it was before 1908 and even then the maxim was applied. The two cases referred to above are examples thereof. Both these cases were cases where a party to the litigation had died before pronouncement of the judgment but after the hearing of the argument in the case. In Ramacharya & others vs. Anantacharya & others case, the learned Judges of Bombay High Court relying on the decision in Eyere vs. Hollier. 12 Ir. Eq. Both these cases were cases where a party to the litigation had died before pronouncement of the judgment but after the hearing of the argument in the case. In Ramacharya & others vs. Anantacharya & others case, the learned Judges of Bombay High Court relying on the decision in Eyere vs. Hollier. 12 Ir. Eq. R. 607, where it had been held 'Nothing is better settled than that where a cause is heard and merely stands over for consideration, the Court will pronounce judgment though the plaintiff or defendant die and that judgment refers back and is conceived in the same terms as if pronounced when the cause was heard' held that the judgment and decree passed thereof were valid and could be executed against the heirs of the deceased party. In Chetan Chanan Das & others vs. Balbhadra Das, case the Learned Judges of Allahabad High Court also ordered for entering a judgment nunc pro tunc, i.e. dating it as of a date when the court reserved its decision. They relied on in Cumber vs. Wane, 1 Smith L.C., 10th Ed. 325 and the decision of the Bombay High Court in Ramacharya case. Though the present case before us is not a case of death of one of the parties after the hearing of the cause and before pronouncement of the judgment, nonetheless the principle that no party should be made to suffer for the acts of the court applies to it. I would accordingly treat the order dated 15th or May, 1975 for continuing the inquiry to have been passed on 3rd of March, 1975 when the arguments were heard on the said question by the Magistrate within six months from the date of the commencement of the enquiry and hold that in the circumstances the proceeding continues and does not stand automatically terminated as a result of the provisions of section 116 (6) of the Code. Question No. (iv) – 10. In view of the finding on question no. (iii) the question does not arise. Question No. (v) – 11. As the application fails on merit, for the reasons given in the preceding paragraph it is also not necessary to decide whether the present writ application is maintainable or not. 12. The application is dismissed. I agree. Application dismissed.