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2005 DIGILAW 697 (JHR)

Naresh Prasad v. State Of Jharkhand

2005-09-13

AMARESHWAR SAHAY

body2005
JUDGMENT Amareshwar Sahay, J. 1. This revision application arises against the judgment dated 9.2.1998 passed by the Sessions Judge, Dhanbad in Criminal Appeal No. 21/1997 whereby the learned Sessions Judge, dismissed the appeal filed by the petitioner challenging the order dated 28.10.1996 passed by the Executive Magistrate, Dhanbad in a proceeding under Section 107, Cr PC whereby the petitioner was directed to execute bond of Rs. 5.000/- in order to keep peace for a period of one year. 2. The facts in detail are not required to be stated in view of the points raised on behalf of the petitioner. Suffice is to say that a proceeding under Section 107, Cr PC was initiated at the instance of the first party on the basis of a police report on 3.11.1995 and the second party, i.e., the opposite party herein, was directed to appear and file show cause. Thereafter the opposite party appeared, filed his show cause and then after completion of the enquiry under Section 116, Cr PC final order was passed on 28.10.1996 directing the second party to execute bond. The said order of the learned Executive Magistrate was challenged by filing an appeal before the Sessions Judge, Dhanbad, which was dismissed by the impugned order dated 9.2.1998, which is under challenge in this revision application. 3. Mr. Mahesh Tewari, learned counsel appearing for the petitioner submitted that the impugned order passed by the learned Executive Magistrate directing the petitioner to execute bond was without jurisdiction because the proceeding under Section 107 which was initiated on 3.11.1995 was subsequently, extended for a further period of three months on but no reason whatsoever was assigned for the said extension and, therefore, the same was not inconformity with the mandatory provisions of Section 116(6) of the Cr PC. 4. Section 116(6) of the Cr PC reads thus :- "116. Inquiry as to truth of information.-(1) When an order under Section 111 has been read or explained under Section 112 to a person in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of a summons or warrant, issued under Section 113, the Magistrate shall proceed to inquire in to the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2)... (3)... (4)... (5)... (2)... (3)... (4)... (5)... (6) 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." 5. From bare perusal of the aforesaid provisions it is clear that the inquiry under this section has to be completed within a period of six months from the date of its commencement and if such inquiry is not completed then before expiry of the said period of six months for recording special reasons the proceeding can be extended. 6. In the present case I find from the lower Court record that by order dated 2.7.1996 the proceeding was extended for a period of three months. The order dated 2.7.1996 extending the period of enquiry passed by the Executive Magistrate reads thus :- "Pratham Pachh Ki Haziri Hai Ewam Awadhi Vistar Karne Hetu Aawedan Diye Hai. Vipachhi Ahupasthit Hai. Petition for extension is accepted for three months. Send warrant though S.P. 7. From the aforesaid order of the learned Executive Magistrate dated 2.7.1996 it is apparently clear that no reason whatsoever what to speak of special reasons has been assigned for extending the period of enquiry under Section 116, Cr PC. 8. Accordingly, I hold that the order dated 2.7.1996 and also all subsequent orders passed by the Executive Magistrate was absolutely without jurisdiction as for extending the enquiry under Section 116, Cr PC no reason was recorded by the learned Executive Magistrate and, therefore, the mandatory provisions of Section 116(6) of the Cr PC was not complied with. I find that the learned Appellate Court did not consider this aspect of the matter in its true perspective and, therefore, erred in dismissing the appeal filed against the order passed by the Executive Magistrate. 9. Accordingly, this revision application is allowed. I find that the learned Appellate Court did not consider this aspect of the matter in its true perspective and, therefore, erred in dismissing the appeal filed against the order passed by the Executive Magistrate. 9. Accordingly, this revision application is allowed. The order dated 2.7.1996 extending the period of enquiry under Section 116, Cr PC as well as all subsequent orders including the final order " dated 28.10.1996 passed by the Executive Magistrate in a proceeding under Section 107, Cr PC and also the judgment dated 9.2.1998 passed by the Sessions Jude, Dhanbad in Criminal Appeal No. 21/1997 are hereby set aside.