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1985 DIGILAW 270 (PAT)

Gajendra Kumar Singh v. Ranjan Kumar Singh

1985-09-19

R.N.THAKUR

body1985
JUDGMENT : Ram Naresh Thakur, J. Both the applications arise out of the same proceeding and that being so with the consent of the parties they have been heard together and are being disposed of by common JUDGMENT :. 2. On the basis of police report, a proceeding under section 107 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') was drawn up in between Ranjan Kumar Singh and others first party (at present opposite party) and Gajendra Kumar Singh and another (here petitioners as 2nd party) on 18.2.1984 by the Executive Magistrate, Banka and notices were issued against them to appear and show cause. Thereafter Ranjan Kumar Singh, opposite 1st party, lodged a Sanha on 27.2.1984 on the basis of which the police submitted a report on 27.2.1984 for taking action under section 116 (3) of the Code against these petitioners and, accordingly, notices were issued to these petitioners on 3.5.1984 to show cause as to why action under section 116 (3) of the Code be not taken against them. A copy of the aforesaid ORDER :s are Annexures here. 3. In pursuance of the notices, three of the petitioners appeared on 26.4.1984 and the fourth petitioner appeared on 5.5.1984. Ultimately by ORDER :dated 18.5.1984 the proceeding was transferred to Shri P. Razak, Executive Magistrate for disposal. The petitioners also filed show cause against ad interim bond as provided under section 116 (3) of the Code. The proceeding remained pending. On 10.11.1984 the learned court below extended the life of the proceeding under section 116 (6) of the Code for three months as in his opinion there was still apprehension of breach of the peace. By ORDER :dated 30.11.1984, the learned court below directed these petitioners to execute ad-interim bond under section 116 (3) of the Code of Rs.2,000/- each to keep (sic) during the pendency of this proceeding. 4. Against the ORDER :dated 30.11.1984 Criminal Revision No. 1014 of 1984 has been filed and by Criminal Miscellaneous No. 116/85 the petitioner have sought to quash the proceeding under section 107 of the Code for the reasons mentioned therein. 5. 4. Against the ORDER :dated 30.11.1984 Criminal Revision No. 1014 of 1984 has been filed and by Criminal Miscellaneous No. 116/85 the petitioner have sought to quash the proceeding under section 107 of the Code for the reasons mentioned therein. 5. Learned counsel appearing on behalf of the petitioners has argued that the entire proceeding under section 107 of the Code be quashed because it is pending since more than six months and the ORDER :directing to execute ad interim bond is also not in accordance with law. It has been further argued that no overt act has been committed. 6. Admittedly, the proceeding was drawn up on 3.3.1984 and since then it is pending. It also appears that by 5.5.84 all the petitioners had appeared before the court where the proceeding was pending. On 3.5.1984 the police reported for an action under section 116(3) of the Code against these petitioners on which notices were issued to the petitioners to show cause against the execution of ad interim bond. On 29.10.1984 opposite party no. 2 filed a petition for extending the period of enquiry and by ORDER :dated 10.11.1984 the learned court below extended the period of proceeding for three months on the ground that there was still apprehension of breach of the peace and by ORDER :dated 30.11.1984 the petitioners were directed to execute ad interim bond. 7. Criminal Procedure Code, 1973 has clearly laid down that the enquiry under section 116 of the Code 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. This provision has been laid down under clause (6) of section 116 of the Code itself. A mere perusal of this provision will show that the parlimentarians wanted that such proceeding must be completed with six months unless for special reasons to be recorded in writing, the Magistrate otherwise directs. Wordings of this provision clearly indicate that only in exceptional cases, extension should be allowed for special reasons otherwise not. 8. Therefore, the provisions of the Act have to be followed religiously with all care and caution. 9. Wordings of this provision clearly indicate that only in exceptional cases, extension should be allowed for special reasons otherwise not. 8. Therefore, the provisions of the Act have to be followed religiously with all care and caution. 9. In the present case it has been written " foi{k dh vksj ls fo}koku vf/koDrk Bkdqj dkes’oj izlkn flag us bl fcUnq ij vof/k foLrkj ds vkosnu ij vkifRr dh bl ckn esa iqfyl dh dsl fjiksVZ ugha vk;k gSA fdUrq fdlh i{k }kjk ;g ugha dgk x;k gS fd nksuksa i{kksa esa vc ruko ugha gks ,slh fLFkfr izE iE ds ny vuqjks/k gS fd vHkh ‘kkafr Hkax gksus dk [krjk gSA bldh tkap dh vof/k foLrkj dh Lohd`fr nh tk; dh ugha ekuus dk dksbZ vk/kkj eSa ugha ns[krk gwaA rnuqlkj bl ckn ds tkap dh vof/k rhu ekg foLrkj dh Lohd`fr nh tkrh gSA " Thus no special reason has been assigned by the trying court for extension of life except that no party had stated that there was no apprehension of breach of the peace. I think this cannot be termed to be special reason. The certified copy of the entire ORDER :-sheets till 30.11.1984 has been filed in Criminal Miscellaneous No. 116/85. From the perusal of which it will appear that not a single witness was examined by the Enquiring Court till 30.11.1984 in the main proceeding. In such a situation, proceeding should not have been allowed to linger any further power of extension has been given for special cases which must be used with great caution. It should never be a general rule that in every case the period of life of the proceeding should be extended beyond prescribed limit. What prevented the lower court to start the enquiry and examine witnesses before 10.11.1984. In my view, extension should be allowed only in such cases where the proceeding has not been concluded within the prescribed limit due to unavoidable circumstances which are beyond the control of the court and the parties. If in a proceeding, parties do not produce evidence and the court is not taking serious steps to conclude the enquiry within six months I think the provision of extension of period in such cases will be unwarranted and against the provision of law. 10. If in a proceeding, parties do not produce evidence and the court is not taking serious steps to conclude the enquiry within six months I think the provision of extension of period in such cases will be unwarranted and against the provision of law. 10. I must say that the provision as contained in sub-clause (6) of Section 116 of the Code has been introduced by the present Act with the purpose that such proceeding must be finished within shortest possible time to bring desired effect on the society. It has been seen that it such proceeding prolongs for years together it loses its force. 11. Therefore I find that the older dated 10.11.1984 by which the period of proceeding was extended for three months was not proper in accordance with the provision of law. 12. It has been argued that according to sub-clause (7) of Section 116 of the Code, where any direction is made under subsection (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse. Therefore, when the petitioners did not move the Session Judge against the ORDER :dated 10.11.1984, this petition should not be entertained. The petitioner should have moved the Session Judge but on this ground alone this petition cannot be dismissed by this Court specially when the Court is satisfied that the ORDER :dated 10.11.1984 is not in accordance with law and is perverse. This Court being the highest court of the State cannot be silent spectator of such illegal ORDER :where it is brought to it s notice. 13. Therefore the ORDER :extending the period is quashed. 14. In view of the aforesaid findings the ORDER :dated 30.11.1984 automatically becomes infructuous. 15. In the result, both the applications are allowed. Applications allowed.