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1977 DIGILAW 48 (ORI)

UCHHABA JENA v. KUNJABEHARI RAUTRAY

1977-07-05

N.K.DAS, R.N.MISRA

body1977
JUDGEMENT R. N. Misra,J. :- On 17-9-1974, an application was made by Kunjabehari Rautray (opposite party No.1) for initiation of a proceeding under S.107 of the Cr.P.C. and the learned Magistrate sent the application to the Officer-in-charge of the Nimapara Police Station for a report. On 24-9-1974, the Police recommended initiation of a proceeding and suggested that interim bonds may be taken under S.116 (3) of the Code. On 12-2-1975, a proceeding under S.107 of the Code was initiated and members of the second party were noticed to appear. On 30th of August, 1975, members of the second party contended before the learned Magistrate that as the proceeding could not be completed within six months from initiation of the inquiry as required under S.116 (6) of the Code, the same should stand terminated. The learned Magistrate dropped the proceeding on the sole ground that the inquiry under S.107 had been instituted on 12-2-1975 and though more than six months had elapsed since then, the inquiry could not be completed. On the self-same day, opposite party No.1 filed another application for initiation of a fresh proceeding under S.107 of the Cr.P.C. wherein he referred to the earlier proceeding and the manner in which it had got concluded. On the basis of the materials placed, the learned Magistrate was pleased to direct notice to members of the second party in accordance with law. The matter was adjourned from time to time - sometimes at the instance of the members of the second party and on some other occasions at the instance of the court. On 26-12-1975, the learned Magistrate required the Officer-in-charge of the Police Station to be examined in support of the request for taking of interim bonds. On 22nd of January, 1976, the Officer-in-charge could not appear, but the Assistant Sub-Inspector of Police was examined and the learned Magistrate required the Officer-in-charge to appear on 2-2-1976. Ultimately on 27-2-1976, the Officer-in-charge was examined and on 12th of March, 1976, the matter relating to furnishing of interim bonds was heard. On 25-3-1976, the learned Magistrate passed an order requiring interim bonds to be furnished by members of the second party to the tune of Rs. 500/- each for keeping the peace. Against the said order, the members of the second party carried a revision before the learned Sessions Judge of Puri. By the impugned order he declined to interfere. On 25-3-1976, the learned Magistrate passed an order requiring interim bonds to be furnished by members of the second party to the tune of Rs. 500/- each for keeping the peace. Against the said order, the members of the second party carried a revision before the learned Sessions Judge of Puri. By the impugned order he declined to interfere. The writ application has been filed for quashing of the direction for furnishing interim bonds on the basis that a second revision at the instance of the petitioners would not be maintainable in law in view of the bar under the new Code of Criminal Procedure. 2. The connected miscellaneous application is one for invoking the inherent powers of this Court in terms of S.482 of the Criminal P.C. for quashing of another part of the self-same order by which the learned Magistrate declined to drop the proceeding notwithstanding that the period of six months from the commencement of enquiry had elapsed. It is alleged that no justifying reasons have been given to continue the proceeding and though the learned Sessions Judge had been moved in the matter, he has not applied his mind appropriately. It is alleged that continuing the proceeding would prejudice the petitioners and would amount to an abuse of the process of law. Petitioners, therefore, have asked for quashing of the proceeding in exercise of inherent powers vested in the court. That is how the writ application and the criminal miscellaneous proceeding have arisen. 3. We would first deal with the criminal miscellaneous proceeding. On the authority of a Bench decision of this court in the case of Deena Nath Acharya v. Daitari Charan Patra (1975) 41 Cut LT 656 : (1975 Cri LJ 1931), Mr. Mohapatra for the opposite party No.1 contends that the attempt to invoke inherent powers for quashing the proceeding is not tenable in law. The learned Chief Justice delivering the judgment of the Court, observed (at pp 1932, 1933 of AIR) :- "To avoid the difficulty that a second criminal revision does not lie, the petitioner has resorted to the subterfuge of styling the application as a criminal misc. case under S.482, Criminal Procedure Code which saves the inherent powers of the High Court. The learned Chief Justice delivering the judgment of the Court, observed (at pp 1932, 1933 of AIR) :- "To avoid the difficulty that a second criminal revision does not lie, the petitioner has resorted to the subterfuge of styling the application as a criminal misc. case under S.482, Criminal Procedure Code which saves the inherent powers of the High Court. This section lays down that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The section does not confer a new jurisdiction on the High Court but merely saves the inherent powers of the High Court. This inherent power can be exercised in appropriate cases only in the exercise of the appellate or revisional jurisdiction of the High Court. The Criminal Misc. case should have been registered as a criminal revision. The bar of a second revision under S.399 (3) of the Code cannot be obviated by styling the application as a misc. case under S.482, Criminal Procedure Code. It has already been held by us in the unreported case referred to in Paragraph 4 of this Judgment that the inherent powers of the High Court under S. 482 cannot be invoked in a case which would conflict with any specific provision of the Code............" As we find, the criticism of Mr. Misra for the petitioners that no reasons have been given for continuing the proceeding beyond the period of six months is not correct. Sub-s.(6) of S.116 of the Code provides:- "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............" In his order dated 25-3-1976, the learned Magistrate has observed:- ''It is revealed from the evidence of the A.S.I. and Officer-in-charge, Nimapara Police Station and the S.D.Es. exhibited that the delinquent continued committing certain overt acts against the 1st party including his family members, labourers and his properties even after the start of the original proceeding u/s.107, Cr.P.C....... In the circumstances, I am of the view that ill-feeling is growing in spite of initiation of the proceeding u/s 107 Cr.P.C. and the matter has become urgent and so preventive action under S.116 (3) Cr.P.C. is necessary against the delinquents......... In view of what has been discussed above, I am not inclined to drop the proceeding though the mandatory period of six months is going to be over today. Hence, the memo of the learned Advocate for the delinquents presented on the last date, merits no consideration." Upon looking into the order-sheet of the learned Magistrate, we find that the delay was more on account of the members of the second party than on any other ground. On the circumstances, it cannot also be said that the learned Magistrate has not complied with the provisions of sub-s.(6) of S.116 of the Code of Criminal Porcedure when he decided to continue the proceeding. 4. At the hearing, Mr. Mohapatra for the opposite party No.1 contended that the six months fixed under sub-s.(6) have to be counted from the date of commencement of the inquiry and not from the date the proceeding commenced. All the delinquents appeared before the learned Magistrate on 25-9-1975. Mr. Misra contends that the inquiry" must be deemed to have started with effect from that while Mr. Mohapatra claims that the inquiry can only start when the learned Magistrate proceeded to receive evidence, and, therefore, the inquiry must be deemed to have commenced on 22-1-1976, when the Assistant Sub-Inspector of Police was examined toy the learned Magistrate. If Mr. Misra's submission be correct, 25-3-1976 would be the end of six months from the date of inquiry while if Mr. Mohapatra's contention be correct, the proceeding continues up to July, 1976 and no objection could be raised against the Magistrate continuing the proceeding. We think it, therefore, relevant to consider when exactly the inquiry can be said to have commenced. Mr. Mohapatra relies upon the observations of the Supreme Court in the case of Madhu Limaye v. Ved Murti, AIR 1971 SC 2481 : (1971 Cri LJ 1715). In para. We think it, therefore, relevant to consider when exactly the inquiry can be said to have commenced. Mr. Mohapatra relies upon the observations of the Supreme Court in the case of Madhu Limaye v. Ved Murti, AIR 1971 SC 2481 : (1971 Cri LJ 1715). In para. 16 of the judgment, the Court observed (at p.2485 of AIR) :- "It appears to us that the powers of the Magistrates 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. 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 nobody and yet ask the petitioners to furnish a bond for good conduct......" Reliance is also placed on the observations of the learned Chief Justice in the case of Udayanath Pradhan v. State (1974) 40 Cut LT 148, wherein on the basis of the observations in Madhu Limaye's case (supra), it had been stated :- "The reason why the interim bond was without jurisdiction is that no such bond can be called upon to be executed unless there is commencement of the inquiry which means commencement of the trial according to summons procedure in which some evidence has been taken ... ... ... ..." Section 116 (2) of the Code provides :- "Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons cases." For summons trials provision has been made in Chapter XX and the trial procedure starts with S.251 of the Code 'when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused are stated to him'. Sub-s.(3) of S.116 of the Code provides:- "After the commencement and before the completion of the inquiry under sub-s.(1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under S.111 has been made to execute a bond,............" Inquiry in sub-s.(3) must be given the same meaning as in sub-s.(6). In view of the authorities referred to above, we are inclined to agree that the inquiry referred to in sub-s.(6) is with reference to the stage when the Magistrate, after both parties appear before him, proceeds to inquire with reference to the evidence as to whether the delinquencies alleged are established. Once we take that view, by 25th of March, 1976, six months were not over and, therefore, the learned Magistrate was not obliged to terminate the proceeding. In these circumstances, the criminal miscellaneous application must fail. 5. We have already stated that petitioners have asked for a writ of certiorari to quash the direction for interim bonds. We find, the learned Magistrate gathered evidence of two police officers and several station diary entries were exhibited on the basis of which he came to hold that there was imminent apprehension of the breach of the peace and interim bonds were necessary. This is not a case of complete lack of evidence. We are not inclined to enter into an appreciation of the evidence by making a fresh assessment. The writ application must accordingly fail. 6. On account of our interim order of stay of further proceedings and the record of the Magistrate having been called for, the inquiry has not proceeded. We now direct that the records be returned and the learned Magistrate be called upon to close the proceeding within three months from the date of receipt of the records. DAS, J.:- I agree. Petitions dismissed.