Bhairab Paul v. Gora Chand Kundu — 1985 DIGILAW 234 (CAL)

JUDGMENT 1. THIS revisional application by the second party petitioners, which was taken up for ex parte disposal, is for quashing the proceeding, under section 107 of the Code of Criminal Procedure now pending against them before the learned Exe. Magistrate, bishnupur, being Case No. 211 -Misc. of 1979. 2. THE opposite party No. 1 Gora Chand Kundu started the said proceeding on the allegation that the petitioners had unlawfully caused obstruction to a pathway existing over their land, being plot No 773 of mouza Janata, preventing him thereby from using the same The application thus having been forwarded by the learned Magistrate to the Officer-in-charge, Bishnupur police Station, for inquiry and report, a report was submitted on August 19, 1979. by one Assistant Sub-Inspector of Police to the effect that the pathway was in existence for several years. On the basis of the said report, the learned Executive magistrate drew up a proceeding against the petitioners under section 107 of the code of Criminal Procedure and issued notice upon them. The petitioners entered appearance, furnished bail bonds as directed and on November 16, 1979 submitted their written statements showing cause against the proceeding. The said proceeding thereafter continued from day-to-day and shortly before the expiry of the period of six months from the date of the commencement of the inquiry, the learned Magistrate by his order dated May 6, 1980 directed the proceeding to continue beyond the said statutory period of six months as according to him, there was still apprehension of the breach of the peace. The said proceeding was continuing even when the learned Magistrate passed the impugned, order dated November 25, 1980 directing the C. S. I. to produce evidence by december 2, 1980. 3. ACCORDING to Mr. Jagabandhu Roy, the learned Advocate, appearing on behalf of the petitioners, the reason assigned by the learned Magistrate for continuance of the proceeding beyond the statutory period of six "months as provided by sub-section 6 of section 116 of the Code of Criminal Procedure, was not a "special reason" as required by the statute and consequently the proceeding should be deemed to have terminated on the expiry of six months. Practically, this was the only point urged by mr. Roy for quashing the proceeding. None having appeared on behalf of the opposite parties, the matter was taken up for ex parte disposal. 4. Practically, this was the only point urged by mr. Roy for quashing the proceeding. None having appeared on behalf of the opposite parties, the matter was taken up for ex parte disposal. 4. COMING to the merits of the contention of Mr. Roy, sub-section 6 of section 116 of the Coda of Criminal Procedure provides that the inquiry under section 116 of the Code should be completed within a period of six months from the date of the commencement and if such inquiry is not so completed, the proceeding shall on expiry of the said period, stand terminated unless for "special reason" to be recorded in writing, the magistrate otherwise direct. For calculation of the said period of six months the question that arises for consideration at the outset is when actually did the proceeding under section 107 of the Code commence against the petitioners. Different views on this point have been expressed by different high Courts, but so far this Court is concerned, the controversy seems, to have been concluded by the Division Bench decision in Paresh Chandra Hati Vs. Ahitosh Panda, 1978 Cr. L. J. 1171. There it has been held that the inquiry in a proceeding under section 107 of the code commences as soon as the opposite party in. the proceeding challenges 'the allegation made against him or refuses to admit the same or submits a show cause petition against the allegation or the Magistrate otherwise has reason to proceed or proceeds or decides to ascertain the truth of the allegation made against the opposite party by taking evidence or otherwise. The earlier decision, of this Court in 1978 Cr. L. J. 316 taking a different view of the matter, was overruled. This decision was followed in a subsequent Bench decision of this court in 1983 Cr. L. J. 44 (Dhirendranath chakraborty vs. Sm. Sarama Debi and others.) 5. IN the instant case, as already stated the present petitioners as opposite parties submitted their written statement showing cause against the proceeding on November 16, 1979. This, in view of the authorities cited above should be taken to be the actual date of the commencement of the proceeding and. the duty of the learned Magistrate was to conclude the said proceeding by May 16, 1980 when the statutory period of six months as provided by sub-section 6 of section 116 of the Code expire. 6. This, in view of the authorities cited above should be taken to be the actual date of the commencement of the proceeding and. the duty of the learned Magistrate was to conclude the said proceeding by May 16, 1980 when the statutory period of six months as provided by sub-section 6 of section 116 of the Code expire. 6. LET us now see haw the learned Magistrate proceeded in the matter. As the order-sheets show, he fixed January 22, 1980 for examination of the P. Ws. and appearance of the opposite parties. On the said date the opposite parties were present and haziras were filed, but the matter was adjourned to February 12, 1980 for appearance of all the opposite parties and for production of the P. Ws. On the said date, that is, February 12, 1980 five P.Ws. were present 'but two of the opposite parties were absent and the case was adjourned to March 6, 1980 for appearance of all the opposite parties and for evidence. On March 6, 1980 all the opposite parties were present but the learned lawyer representing them having asked for time, the case was adjourning to March 25, l980 for evidence. On the said date all the opposite parties were present as well as four p. Ws. out of whom only one witness was examined and the case was adjourned to April 18, 1980 for examination of the other P.Ws. On April 18, 1980 the opposite parties were present and so also three P.Ws. but on the prayer of the C.S.I. the case was again adjourned to April 29, 1980 for examination of the remaining P.Ws. On the said date all the opposite parties were present including three P.Ws. but without assigning any reason the case was again adjourned to May 6, 1980 for examination of the P. Ws. and for appearance of the opposite parties. On May 8, 1980 one more P.W. was examined. The order which the learned Magistrate recorded on the said date, that is, on May 6, 1980, is as follows :- "P.W. 2 Gopal Rana is examined fully and discharged. Under section 116 (6) of the Code of Criminal Procedure, the inquiry must be completed within six months, otherwise the case will be terminated statutorily. In the present case it shall be terminated on 16.5.80. Under section 116 (6) of the Code of Criminal Procedure, the inquiry must be completed within six months, otherwise the case will be terminated statutorily. In the present case it shall be terminated on 16.5.80. But from the evidence so far taken, it appears that there is still apprehension of the breach of the peace. Therefore, I decide to continue this case beyond the statutory period of six months to 19.5.80 for further evidence''. The proceeding continued merrily thereafter and in a leisurely way and was pending even on the date the impugned order was passed on November 25, 1980. 7. THE reference to the order-sheets of the learned Magistrate as already made, will clearly show absolute lack of vigilance on the part of the learned Magistrate and the way the matter was shifted from day-to-day, indicates that he was never conscious of the fact that the inquiry had to be completed within a. period of six months from the date of its commencement. Adjournments granted by him sometimes extended for too long a period and sometimes adjournments were given for mere making by the parties. On some occasions adjournments were granted suo moto even when the parties and the witnesses were present. Thereafter, when it was suddenly discovered that the statutory period of sax months was about to expire, an order was recorded that the proceeding should be allowed to continue beyond the statutory period as apprehension of breach of the peace was still there. 8. MR. Roy, the learned Advocate, appearing on behalf of the petitioners, lightly contended that the reason so assigned by the learned Magistrate for the continuance of the proceeding, is not "special reason" as required by sub-section 6 of section 116 of the Code. It is true, that the legislature has not attempted to explain what should actually be deemed to be "special reasons" but in my view, the reasons so contemplated, should be confined to treasons explaining the circumstances under which the inquiry could not be completed within the statutory period, to give expression to the intention of the legislature in setting out a statutory limit for the completion of the inquiry. In the instant case, the reason assigned by the learned Magistrate is that there was still apprehension of the breach of the peace. In the instant case, the reason assigned by the learned Magistrate is that there was still apprehension of the breach of the peace. While doing so, the learned magistrate failed to consider that apprehension of the breach of the peace is a ground for drawing up a proceeding under section 107 of the Code and if on inquiry under sectional 16 of the Code he finds that the apprehension is still continuing, the remedy is to direct the person in respect of whom the inquiry is made to execute a bond, with or without sureties, as provided by section 117 of the Code. Thus, apprehension about continuance of the breach of the peace during the inquiry proceeding, is apparently no ground for continuance of the proceeding beyond the statutory period. The object of the legislature in fixing a time limit for completion of an inquiry under section 116 of the Code, was obviously not to allow the proceedings to continue indefinitely as the said proceedings had been continuing prior to the amendment. This object of the legislature in my view cannot be frustrated by a Magistrate merely by making a routine remark that apprehension of the breach of the peace continues to exist, after allowing the proceeding to drag on unnecessarily by his own inaction. While granting adjournment in such proceedings, the Magistrate should keep in view the statutory limit prescribed and it is only when he finds that even after exercise of due diligence and caution the time schedule cannot be maintained due to unforeseen circumstances, he may direct its continuance beyond the statutory limit before it automatically terminates by efflux of time. The language used in section 116 (6) is "special reasons" and properly construed, it should relate only to reasons for not having been able to conclude the proceeding within the statutory limit due to circumstances beyond the control of the Magistrate. To hold otherwise, would be to render the intention of the legislature in fixing a statutory limit, totally nugatory. 9. To hold otherwise, would be to render the intention of the legislature in fixing a statutory limit, totally nugatory. 9. AS soon as the inquiry commences the Magistrate should arrange the programme of the inquiry in such a way that under no circumstances it proceeds beyond the statutory limit of six month i am sorry to observe that such statutory limits whenever prescribed, are more often taken in a cause way and even where the statute provides for certain consequence to follow on the expiry of the Said period, that is also overcome in the same casual manner as it seems to have been done in the instant case. In the instant case, the way the matter has been shifted from day-to-day clearly indicates that the learned Magistrate was totally unconcerned above the statutory limit and it was only when he discovered that the time was about to run out he casually recorded that the proceeding should continue as there was still apprehension of the breach of the peace thereby giving the proceeding a fresh span of life against the intention of the legislature. This, in my view, is not the way in which an inquiry under section 116 of the Code should be conducted. In such matters 'vigilance' should be the key-word from the very inception of the inquiry and under no circumstances the proceeding should be allowed to overstep the limit and "special reasons" for allowing the Proceeding to survive the statutory termination would be restricted to reasons indicating unforeseen circumstances beyond the control of the Magistrate. The endeavour thus made by the learned Magistrate to stick to time schedule, should be apparent from the order-sheets of the records and not simple from the direction to overcome the termination. 10. THE language of subsection (6) of section 116 of the Code makes it more than clear that the legislature is in favour of adhering firmly to the statutory limitation because it provides that on the expiry of the said period the proceeding should stand "terminated" unless for "special reasons" the Magistrate directed otherwise. 10. THE language of subsection (6) of section 116 of the Code makes it more than clear that the legislature is in favour of adhering firmly to the statutory limitation because it provides that on the expiry of the said period the proceeding should stand "terminated" unless for "special reasons" the Magistrate directed otherwise. Sub-section (7) of section 116 of the Code provides an additional safeguard for enforcement of the time schedule by authorising the aggrieved party to move up for vacating the direction of the learned Magistrate for continuance of the proceeding and the learned sessions Judge has been authorised to vacate such direction in case he is satisfied that it is not based on any "special reason" of was perverse. "special reason", therefore, should not be "any reason" or "any excuse" for continuance of the proceeding beyond the statutory period. Such "special reason" as already indicated, should be deemed to be existing only when the Magistrate is unable to conclude the proceeding due to circumstances beyond his control. He cannot make his inaction a ground for extension of the period. 11. IDENTICAL view seems to have been taken by a learned Single Judge of the delhi High Court in J. C. Mehta Vs. State, 1982 Cr. L. J. 1488. The relevant observations made by the learned Judge in this connection are quoted hereunder ':-"it is a matter of common knowledge that before the introduction of section 116 (6), the proceedings under section 117 of the old Code tended to protract over years resulting in avoidable hardship and unnecessary expense to the person proceeded against. The length to which such cases were span out sometimes threatened to be a danger to the administration of justice Hence, the legislature in its anxiety to prevent any abuse of process of law has provided that normally the proceedings must be completed within a period of six months from the date of its commencement and that only in exceptional cases where "special reasons" exists they may be allowed to prolong beyond the said period. So, the Magistrate cannot at his own volition, extend the period of inquiry by sheer inaction or by functioning in a perfuctory manner and giving long and unnecessary adjournments. It will be against the letter and spirit of this salutory provision that Damocles' sword is allowed to hang over the head of a person proceeded against indefinitely. So, the Magistrate cannot at his own volition, extend the period of inquiry by sheer inaction or by functioning in a perfuctory manner and giving long and unnecessary adjournments. It will be against the letter and spirit of this salutory provision that Damocles' sword is allowed to hang over the head of a person proceeded against indefinitely. Hence, strict adherence to this requirement of law is absolutely essential. " 12. SIMILARLY, a Full Bench of the Patna High Court in Sitaram Singh V. State of Bihar, AIR 1980 Patna 257 at page 262 has observed that the law desired the enquiry to be a short affair and not to be dragging its feet for years. Every endeavour should be made by Magistrates to complete the enquiry as soon as possible. That can be done only by limiting the number of adjournments. Magistrates would be well-advised to call upon the party at whose instance the proceeding has been initiated to be present with his finesses on the dates fixed for appearance of the opposite party". A question may arise whether a party should be allowed to suffer for the inaction of the Magistrate. There is, however, no denying the fact that a party initiating the proceeding is more often than not interested in dragging it with the object of creating a pressure on the other side. On the other hand, it is a tribe knowledge that a vigilant litigant, which though it may sometimes appear to be a contradiction in terms, can, if he so desires, be of considerable help in the matter of expeditious disposal of the case by being ready with his witnesses on the dates fixed and strongly objecting to unnecessary adjournments. The members of the bar have also a great role to play in such matters. The supreme Court in a recent decision reminded the members of the bar of their duty and responsibility towards their clients, rather in a hard way, when it restored an appeal dismissed for default of the Advocate with costs against the Advocate ( AIR 1981 SC 1400 ). 13. COMING to the amended provision in sub-section (6) of section 116 of the code of Criminal Procedure, it should be taken to be a reminder to the party initiating the proceeding that it has a limited span of life and the Magistrate's power to extent the said period is also not unlimited. 13. COMING to the amended provision in sub-section (6) of section 116 of the code of Criminal Procedure, it should be taken to be a reminder to the party initiating the proceeding that it has a limited span of life and the Magistrate's power to extent the said period is also not unlimited. At least the Magistrate's inaction cannot be a ground for such extension. There should, therefore, be no lack of vigilance at least on the part of the petitioner and his readiness to have the proceeding concluded within the time limit in my opinion, may infiltrate the requisite sense of responsibility in all concerned. What is really wrong is the feeling that the statutory limitation wherever providers not meant to be observed and whatever little discretion is left to the Court in the matter, may conveniently be utilised to overcome it. This feeling unless dispelled, may render all progressive legislations to shorten the life even of a fraction of the litigations by fixing a time limit for their disposal, totally useless. 14. CONSIDERING the circumstances of the instant case, I am of the view that the learned Magistrate unnecessarily prolonged the proceedings due to sheer inaction on his part and the reason recorded by him for continuance of the proceeding can, under no circumstances, be said to be a "special reason" as contemplated by sub-section (6) of section 116 of the Code. The proceeding, therefore, should be held to have terminated on the ex piry of May 16, 1980 and its continuance thereafter was absolutely unjustified. 15. IT is true, that the petitioners did not move the Sessions Judge in time under sub-section (7) of section 116 of the Code against the order of the learned Magistrate directing the continuance of the proceeding beyond the period of six months, but that by itself cannot be considered to be a sufficient reason for allowing the proceeding to continue beyond the statutory period in the absence of "special reasons". 16. THE revisional application should, accordingly, succeed and the proceeding pending against the petitioners under section 107 of the Code of Criminal Procedure before the learned Executive magistrate, Bishnupur in the District of bankura, being Case No. Misc. 231 of 1979 should be quashed after setting aside the impugned order dated November 25, 1980. The proceeding is quashed accordingly. 16. THE revisional application should, accordingly, succeed and the proceeding pending against the petitioners under section 107 of the Code of Criminal Procedure before the learned Executive magistrate, Bishnupur in the District of bankura, being Case No. Misc. 231 of 1979 should be quashed after setting aside the impugned order dated November 25, 1980. The proceeding is quashed accordingly. Let a copy of this order be communicated to the learned court below without delay.