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Rajasthan High Court · body

1998 DIGILAW 1002 (RAJ)

Jethmal Gehlot v. State of Rajasthan

1998-09-09

S.C.MITAL

body1998
Honble MITAL, J.–By this petition under Section 482 Cr.P.C. the petitioners have invoked the inherent jurisdiction of this Court to quash the proceedings of Cr. case No. 161/95 and 201/96 under Section 107/117 Cr.P.C. pending in the Court of Sub Divisional Officer, Nagaur. It has been further prayed that criminal proceedings pending in the Court of Chief Judicial Magistrate, Nagaur under Sections 147, 323 & 341 I.P.C. (Dinesh Kumar vs. Mahendra Singh & Ors.) be also quashed. However, arguments have been advanced only for quashing the aforesaid proceedings under Section 107/116 Cr.P.C. (2). The facts giving rise to this petition are as under:- (3). Non-petitioner No.2 lodged a complaint about an incident on 11.10.95 at 8.30 P.M. in the Court of Chief Judicial Magistrate, Nagaur, alleging therein that the petitioners and their companion Gopi Kishan Mali assaulted him at the Railway Crossing. The case is pending in the Court of Chief Judicial Magistrate, Nagaur. Non-petitioner No.2 thereafter submitted an application on 16.10.95 against petitioners No. 1 & 2 in the Court of Sub Divisional Magistrate Nagaur under Section 107 and 116 Cr.P.C. making an averment that they were threatening to assault him again. They picked up quarrel yesterday in the market, but he was saved by his brother Dinesh. The learned Sub Divisional Magistrate issued notice against the petitioners to show cause as to why they should not be bound down for keeping peace for a period of six months. The proceedings are still pending against the pe- titioner No.1 & 2. The non-petitioner No.2 submitted another application on 26.12.96 under Section 107 and 116 Cr.P.C. against the petitioners making allegation that he was being pressurised to withdraw the cases or to face dire consequences. The learned Sub Divisional Magistrate issued notices to show cause as to why the petitioners be not bound down for a period of six months for maintaining peace. These proceedings are pending against the petitioners. (4). I have heard the learned counsel for the petitioners and the learned Public prosecutor and also the learned counsel for the complainant. The petitioners have challenged the validity and continuation of the proceedings taken against them on two ground viz. the learned Magistrate did not comply with the provision of Section 111 Cr.P.C. before issuing summons against them and the action taken is without jurisdiction. The petitioners have challenged the validity and continuation of the proceedings taken against them on two ground viz. the learned Magistrate did not comply with the provision of Section 111 Cr.P.C. before issuing summons against them and the action taken is without jurisdiction. Secondly the inquiry has not been completed within a period of six months from the date of the commencement which now stands terminated. In support of their contention reliance has been placed on several decisions viz. Chinnaswamy and Others vs. State (1) Smt. Christalin Costs and Others vs. State of Goa & Ors. (2) Khayali Lal & Ors. vs. State of Rajasthan (3) Salik Roy and Others vs. State of Bihar and Another (4) Mithya & Ors. vs. State of Rajasthan & Ors. (5). (5). Learned counsel for the non-petitioner No.2 has vehemently argued that the learned Magistrate has made his subjective satisfaction before initiating the proceedings. The complaint filed by the non-petitioner No.2 disclosed facts and ingredients to initiate the proceedings under Section 107/116 Cr.P.C. The delay has been caused by the petitioners and warrants of arrest were issued which were not served. Therefore, the proceedings can not terminate on lapse of six months from the date of passing the preliminary order. There are special reasons to continue the proceedings because the non-petitioner No.2 filed applications during the pendency of the proceedings praying for expediting the proceedings and to bind down the petitioners for keeping peace. It is argued that the petitioners can appear before the learned Magistrate to contest the proceedings and to show that there is no material on the record to require them to furnish bonds for keeping peace. There is no cogent ground to exercise the inherent powers of his Court under Section 482 Cr.P.C. He relied upon Gain Singh vs. State (6). (6). I have given my thoughtful consideration to the arguments advanced on behalf of both the parties and also the learned Public Prosecutor. Section 107 provi- des that when it is informed about any person who is likely to commit breach of peace or disturb the public tranquillity or to do any wrongful act that may occasion a breach of peace or public tranquillity, the Executive Magistrate having opinion in the facts and circumstances or sufficient grounds for proceedings, may require such person to show cause why he should not be ordered to execute bonds. The period of such bonds shall not exceed one year. It is also laid down that the proceedings shall commence in the manner provided for taking up such proceedings. Section 111 Cr.P.C. mandates that when a Magistrate deems it necessary to commence the proceedings under Section 107 Cr.P.C., he shall make an order in writing wherein he shall record the substance of the information received against the person. The amount of the bond and the term for which it is to be furnished shall also be mentioned in the order. If the Executive Magistrate do not comply with the above requirement and do not record his subjective satisfaction then the proceedings are without jurisdiction. In the instant case on the complaint filed on 16.1.0.95 the learned Executive Magistrate marked with his signatures :- ``Jud. Issue notice to non applicants. Sd/- 17.10.95 (7). It is contended that the learned Executive Magistrate without setting forth the substance of information and his subjective satisfaction ordered to issue notice to non-applicants. On the complaint produced on 26.12.96, he ordered as follows:- ^^jhMj SDM Court bLrxklk ntZ jft- dj xSj lk;yku dks rych tkjh gksA Sd/- 26.12.96 (8). But the proceedings have been drawn and preliminary order has also been passed by the learned Executive Magistrate in both the matters where in he has recorded his subjective satisfaction on the basis of the substance of the infor- mation received and the affidavits. Thereafter on being satisfied, orders have been given to register the case and to issue notice against the petitioners. I have perused the copy of the order sheets and I am of the view that the learned Executive Magistrate has complied with the requirements given in Section 111 Cr.P.C. by recording his subjective satisfaction and the amount and term of the bonds. Merely because the order sheets are typed/cyclostyled it cannot be held that the Magistrate signed the order without having his subjective satisfaction. Therefore, I hold that the contention on behalf of the petitioners regarding the non- compliance of the provisions of Section 111 Cr.P.C. is untenable. (9). Sub Section (6) of Section 116 Cr.P.C. lays that the inquiry shall be completed within a period of six months from the date of the commencement. If the inquiry is not completed within six months, it shall stand terminated unless spe- cial reasons are recorded by the Magistrate to continue the same. (9). Sub Section (6) of Section 116 Cr.P.C. lays that the inquiry shall be completed within a period of six months from the date of the commencement. If the inquiry is not completed within six months, it shall stand terminated unless spe- cial reasons are recorded by the Magistrate to continue the same. The learned counsel for the petitioners contended that both the inquiry stand terminated after the expiry of six months and cannot be continued against the petitioners. I have given my careful consideration to this contention. In Mithya & Ors. vs. State of Rajasthan & Ors. (supra) a question regarding validity of continuation of proceed- ings after expiry of six months of notice issued under Section 111 Cr.P.C. was considered and it was held that continuation of such proceedings after six months is gross abuse of process of court. If the show cause notice is issued for execution of bond for six months only then in all such cases proceedings must be dropped after expiry of six months. The proceedings come to an end ipso facto without any order of the Court and after expiry of such period the Magistrate becomes functus officio. The period of six months or maximum period of one year shall commence from the date of taking cognizance by the Magistrate to commence proceedings under Section 107 Cr.P.C. On the other hand the learned counsel for the non-petitioner No.2 contended that the period should commence from the date of first app- earance in the Court. In this case, the petitioners have not been served and therefore according to the learned counsel for the non-petitioner No.2 the proceedings cannot be terminated. It is clear that six months have expired from the date of taking cognizance by the learned Magistrate on both the complaints. I have gone through the order sheets and the applications filed by the non-petitioners No.2 da- ted 14.3.96 and 15.7.96. The proceedings are being taken up on both the complaints simultaneously. The above applications of the non-petitioner have been considered under Sec. 116(3) Cr.P.C. and order was passed to issue notice for the same. (10). I have gone through the order sheets and the applications filed by the non-petitioners No.2 da- ted 14.3.96 and 15.7.96. The proceedings are being taken up on both the complaints simultaneously. The above applications of the non-petitioner have been considered under Sec. 116(3) Cr.P.C. and order was passed to issue notice for the same. (10). In the instant case, the learned Executive Magistrate issued show cause notices against the petitioners to furnish bonds for a period of six months only and the proceedings shall stand terminated after expiry of six months unless special reasons in writing are recorded by him to continue the proceedings. The proceedings under Section 107 Cr.P.C. are not punitive in nature but the purpose for initiation of such proceedings is to maintain peace by preventive action. I am also of the view that the period of six months will commence from the date of taking cognizance by the learned Executive Magistrate and not from the date of the notice or first appearance of the person. The learned Executive Magistrate has not recorded special reasons in writing to otherwise direct for continuation of the proceedings. In the absence of recording of special reasons under Section 116(6) Cr.P.C. the continuation of the proceedings after the expiry of six months from the date of cognizance is abuse of process of Court because the inquiry stands terminated ipso facto and the Magistrate becomes functus officio. Therefore, the proceedings against the petitioners, deserve to be quashed by exercise of inherent powers under Section 482 Cr.P.C. on this ground. The decision of Gain Singh vs. State of Rajasthan (supra) does not render help to non-petitioner No. 2 because in that case the proceedings were challenged only on the ground that the complaint did not disclose the facts and necessary ingredients for initiating proceedings under Section 107 Cr.P.C. and it was not considered appropriate to exercise inherent powers under Section 482 Cr.P.C. (11). Consequently, this petition is partly allowed. The criminal proceedings of case No.161/95 and 201/96 under Section 107/116 Cr.P.C. pending in the Court of Sub Divisional Magistrate, Nagaur are hereby quashed. The petition for quashing the criminal proceedings pending in the Court of Chief Judicial Magistrate, Nagaur (Dinesh Kumar vs. Mahendra Singh & Ors.) under Sections 147, 323 & 341 I.P.C. is dismissed.