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1991 DIGILAW 409 (PAT)

Sitabi Mandal v. State Of Bihar

1991-09-26

B.P.SINGH

body1991
Judgment B.P.SINGH, J. 1. Heard learned counsel for the petitioners, learned counsel for the State and the learned counsel appearing on behalf of the Opposite party No. 2. 2. This application is being disposed of at the admission stage itself. This is an application for quashing the order passed by the learned Executive Magistrate, Uda Kishunganj, Madhepura, on the 16th of May, 1991, directing the petitioner to execute an ad interim bond under Section 116 (3) of the Code of Criminal Procedure. 1973 (hereinafter to be called as "the Code") for maintaining good behaviour during the pendency of the proceeding under Section 107 of the Code. 3. Learned counsel for the petitioners contends that the proceeding under Section 107 of the Code was initiated on the 2nd of October,1989. The petitioners appeared pursuant to the notice issued to them on the 17th of October, 1989 and the impugned order was passed on the 16th of May, 1991, i.e. after more than one year from the date on which the petitioners appeared in the said proceeding. This Court has held in a case reported in 1935 PLJR 298, that it is permissible for the learned Magistrate to extend the life of the proceeding after the initial period of six months as provided under the law for a further period of six months only, which means that the proceeding must be concludel within a period of one year from the date on which the parties appeared before the learned Magistrate pursuant to the notice issued under Section 107 of the Code. The learned Magistrate has no power to extend the life of the proceeding beyond the period of one year from the date of appearance of the parties. Admittedly in this case the order was finally passed more than one year after the date on which the petitioner appeared before the learned Magistrate. It must therefore, be held that on the date on which the learned Magistrate had passed the impugned order, he had not jurisdiction to pass the same. 4. The learned counsel for opposite party No. 2 submitted that the petitioners had preferred a revision application before the learned Sessions Judge and that revision having been dismissed the petitioners have no right to prefer another revision petition. 4. The learned counsel for opposite party No. 2 submitted that the petitioners had preferred a revision application before the learned Sessions Judge and that revision having been dismissed the petitioners have no right to prefer another revision petition. While it cannot be disputed that a second revision is not permissible in law, it is equally well-settled that an application under Section 482 of the Code is not barred. It may be that in a given case an application filed under Section 482 of the Code may be a mere cleak, and in effect it may be a second revision. In such case, no doubt, even if an application is branded as one under Section 482 of the Code, the High Court will not entertain such an application. However, where the proceeding is sought to be quashed on the ground that the Magistrate passing the order, had no jurisdiction under the law to pass such an order, it is squarely one which would fall under Section 482 of the Code. 5. In the instant case I have come to the conslusion that the learned Magistrate had no jurisdiction to pass the order which he passed on the 16th of May, 1991. In this view of the matter the impugned order is illegal. This application is, therefore, allowed and the impugned order dated the 16th of May, 1991 passed by the learned Executive Magistrate in Case No. 348 of 1989/Tr. No. 191 of 1990, is accordingly, quashed. However, this will not prevent the learned Magistrate from initiating an other proceeding if the situation so justifies.