Bfiajuii Rai v. State Of Bihar — 1989 DIGILAW 121 (PAT)

Judgment S. N. Jha, J. 1. This application has been filed for quashing an order dated 24-4-1979 passed by the learned Executive Magistrate in a proceeding under section 107 of the Code of Criminal Procedure (for short the Code) as well as the order dated 31-1-1981 passed by the learned sessions Judge, Muzaffarpur by which he has dismissed the appeal of the petitioners and affirmed the aforesaid order of the Executive Magistrate with certain modification. 2. The learned Executive Magistrate by the impugned oider, dated 24-4-1979 directed the petitioners to execute a bond of Rs. l.000/- with two sureties of the like amount each to keep peace for a period of one year failing which they will have to undergo simple imprisonment for six months. 3. On appeal, the learned Sessions Judge affirmed the aforesaid order with modification to the effect that the punishment to undergo simple imprisonment for six months in default has no legal basis and he set-aside that part of the impugned order. 4. As indicated above, both these orders have been challenged by the petitioners on the ground that the inquiry was not completed within six months as envisaged under sub-clause (6) of Sec.116 of the Code and as such the proceeding automatically terminated on 3-1-1979. Therefore, both the impugned orders are without jurisdiction and fit to be quashed. 5. The facts which led to the filing of this application, in short, are that a proceeding under Sec.107 of the Code was drawn up on 21-6-1978 and notice was issued to the petitioners to show cause. In pursuance of the said notice, the petitioners appeared on 3-7-1978 and filed their show cause on 19-7-1978. 6. It was contended on behalf of the petitioners that since the inquiry could not be completed within six months from the date of its commencement it stood automatically terminated because no special reason was recorded in writing by the Magistrate to extend the life of the said proceeding. 7. 6. It was contended on behalf of the petitioners that since the inquiry could not be completed within six months from the date of its commencement it stood automatically terminated because no special reason was recorded in writing by the Magistrate to extend the life of the said proceeding. 7. In order to appreciate the submission made on behalf of the petitioners, it is necessary to examine sub-clause (6) of Sec.116 of the Code which reads 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. " I am not concerned with the proviso so far as this case is concerned. 8 Learned counsel appearing on behalf of the petitioners contended that the statute has fixed the period of six months to complete the inquiry. If the proceeding is not concluded within the specified period, then it stands terminated. This sub-clause (6) of Sec.116 of the Code is an insertion of a new provision reason for such insertion is clear. Sometimes, it comes to the notice that proceeding under Sec.107 of the Code drag on for as long as one year or even more and many of these cases, the person concerned, particularly, if he happens to be poor has to attend the Court on each and every date causing much harassment to him. Therefore, the intention of the legislature was to fix a particular period so that the person concerned may not be harassed unnecessarily. This sub-clause also provides that in case the inquiry is not completed within a period of six months, the learned Magistrate may extend this period where there are special reasons to do so. The learned counsel vehemently argued that since the life of the proceeding was not extended during the period of six months it stood terminated automatically. 9. This sub-clause also provides that in case the inquiry is not completed within a period of six months, the learned Magistrate may extend this period where there are special reasons to do so. The learned counsel vehemently argued that since the life of the proceeding was not extended during the period of six months it stood terminated automatically. 9. It was pointed out on behalf of the State that the life of the proceeding was extended later on by the learned Magistrate on 27-1-19/9 but in reply the learned counsel submitted that the question of extension does not arise at all because the life of the proceeding had already expired on 3-1-1979 ; therefore even if it was extended after the proceeding had lost its life, without assigning any special reason, as required under the Act itself, it cannot be revived. 10. In the instant case, as I have already stated above that the proceeding was started on 21-6-1978 and the petitioners appeared on 3-7-1978. Therefore, the question is as to when does inquiry commence. 11. It has already been decided by a Full Bench of this Court in the case of Sitaram Singh and others V/s. State of Bihar and another, AIR 1980 Patna 257 : 1980 BLJ 567 (FB where a question was raised as to when does inquiry commence in the proceeding under Sec.107 because the Code itself was silent in regard to the point of time at which inquiry into a proceeding under section 107 of the Code must be deemed to have commenced. Their Lordships after considering number of decisions on the point came to the majority view that the first appearance of the person to be proceeded against is a starting point of inquiry. According to the majority view, when after a party has appeared in the Court, the Magistrate adjourns the proc eeding, he does so far the purpose of proceeding with the inquiry. Thus, the for ming of conclusion to proceed to inquiry into the allegations takes place on the very day the party appears in the Court and the period of six months will be counted from the day of first appearance of the person concerned. In the instant case, the party appeared on 3-7-1978. Therefore, the proceeding will automatically terminate on 3-1-1979 unless the Magistrate has extended the life of the proceeding after recording special reasons for doing so. 12. In the instant case, the party appeared on 3-7-1978. Therefore, the proceeding will automatically terminate on 3-1-1979 unless the Magistrate has extended the life of the proceeding after recording special reasons for doing so. 12. From the examination of the records of the case, I find that the magistrate has extended the life of the proceedings on 27-1-1979 i. e. after the statutory period of six months has lapsed. The learned counsel appearing on behalf of the petitioners has rightly contended that a proceeding which has lost its life cannot be revived by a subsequent order with retrospective effect and inquiry under Sec.107 of the Code after the expiry of a period of six months from the date of its commencement stands automatically terminated and once the inquiry comes to an end, the Magistrate is not empowered to revive the same. He, however, before termination of the inquiry, can order otherwise for special reasons to be recorded ia writing. Tims could be extended before the expiry of six months psrioj itsslf aal not after ths expiry of the same when the proceeding has already lost its life. 13. I have already indicated above that a plain reading of sub-clause (6)Section 116 of the Code goes to show that the inquiry after the expiry of period of six months from the date of commencement stands automatically terminated and once it has lost its life, the Magistrate is not empowered to revive the same. 14. In the present case, admittedly, the period of inquiry has been extended on 2-1-1979 after the expiry of six months which he could not do. Consequently both the impugned orders are liable to be quashed. 15. Besides this, the proceeding was initiated as far back as 21-6-1978. There is nothing on the record to show that any overt act has since then been committed by the petitioners. The learned State Counsel also could not be able to show from the record or from any document that any overt act has been committed by the petitioners since 1978. That being the position, I find that the proceeding has become stale. The learned State Counsel also could not be able to show from the record or from any document that any overt act has been committed by the petitioners since 1978. That being the position, I find that the proceeding has become stale. If in between the period OD which the proceedings were dra vn up, namely, 21-6-1978 and today i, e.8-3-1989, in the instant case, no overt act has been committed by the patitioners, it only shows that the further continuation of the proceeding against the petitioners would not be justified. However, it is made clear that if any complaint of overt act is reported to the Magistrate, he will be at liberty to initiate a fresh proceeding and dispose pf the matter in accordance with law. 16. For the reasons recorded above, this application is allowed and the impugned orders are quashed. Application allowed.