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2006 DIGILAW 258 (JHR)

Saroj Devi v. State Of Jharkhand

2006-03-24

DILIP KUMAR SINHA

body2006
JUDGMENT D.K. Sinha, J. 1. The petitioners have preferred the petition under Section 482 of the Code of Criminal Procedure for quashing the order impugned passed by the Executive Magistrate, Sadar, Ranchi in a proceedings under Section 107 of the Code of Criminal Procedure, vide case No. M-773 of 2003 on 3rd March, 2004 as also on 5th March, 2004. Annexure 1 relates to the order passed by the Sub-Divisional Magistrate, Sadar, Ranchi in case No. 773 of 2003 on 20.6.2003 for initiation of the proceedings under Section 107 of the Code of Criminal Procedure on the police report calling upon the members of the opposite party in view of the apprehension of breach of peace to show cause as to why not he be asked to execute bond of Rs. 1000/- to maintain peace, but surprisingly without disclosing the names of the parties. The next date was fixed on 16.7.2003. From perusal of the entire order sheet the names of either first party or second party do not appear except the final order which is the order impugned dated 5.3.2004. 2. The main contention of the petitioner/2nd party of the said proceedings is that the proceeding under Section 107 of the Code of Criminal Procedure was extended beyond six months after expiry of the statutory period of six months and that too without recording special reasons for such extension. It is further submitted that the proceedings under Section 107 of the Code of Criminal Procedure automatically terminates after completion of six months and that no order was necessary for its termination. It has been pointed out that learned Executive Magistrate though had fixed the date for evidence of the witnesses on 10.3.2004 but without giving an opportunity of hearing of the petitioner of the present case and recalling the date passed the final order on 5.3.2004 calling upon the petitioner to execute bond, vide order impugned dated 5.3.2004. 3. The proceeding, as it appear from Annexure 1, was initiated Vide order of the Sub-Divisional Magistrate, Sadar, Ranchi dated 20.6.2003 fixing the subsequent date 16.7.2003 calling upon the second party to show cause. The present petitioner/second party of the proceedings appeared on 5.9.2003 and, therefore, it shall be presumed that proceedings started since the date of appearance of the present petitioner in the said proceeding since 5.9.2003. 4. The present petitioner/second party of the proceedings appeared on 5.9.2003 and, therefore, it shall be presumed that proceedings started since the date of appearance of the present petitioner in the said proceeding since 5.9.2003. 4. The order passed in the proceedings dated 3.3.2004 indicates that the petition was filed on behalf of the first party/opposite party of the proceedings for extension of two months time and was allowed by mechanical order without reasons to be recorded for further period and on the same date two witnesses were produced and examined on behalf of the first party. It is indicated from the said order which was drawn after some times that learned counsel on behalf of the petitioner appeared and produced a judgment of the High Court containing proposition of law with regard to extension of the proceedings under Section 107 of the Code of Criminal Procedure beyond statutory period and, therefore, the record was posted for 5.3.2004 for argument, though it was earlier posted on 10.3.2004 for examination of the witnesses. 5. The order sheet dated 5.3.2004 speaks in the following manner. Both the parties appeared in the court. Heard the learned advocate for both the parties at length. They have submitted all the related documentary proofs. Keep for order. It was signed on 5.3.2004. 6. It is evident from the final order dated 5.3.2004 which appears to have been drawn subsequently after some times that learned Executive Magistrate passed the final order in the proceedings on merit with a detailed reference of the cases and counter cases instituted on behalf of the parties and the conduct of the present petitioner, and finally the petitioner/members of the second party of the proceedings were directed to execute bond of Rs. 1000/- each with two sureties of like amount each to maintain peace for one year and to execute the same on 6.4.2004. 7. After taking into account the appearance of the petitioners/2nd party on 5.9.2003, the period of six months was due to expire on or before 5.3.2004 under Section 116(6) of the Code of Criminal Procedure hereinafter referred to as code. This Court finds from the order impugned dated 3.3.2004 that a petition was filed on behalf of the first party for extension of two months time which was allowed mechanically without even reasons to be recorded. 8. This Court finds from the order impugned dated 3.3.2004 that a petition was filed on behalf of the first party for extension of two months time which was allowed mechanically without even reasons to be recorded. 8. The proceedings under Section 116(6) of the Code of Criminal Procedure speaks as under: 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: It is further evident from the order impugned dated 3.3.2004 that the next date for evidence was fixed on 10.3.2004 but when objection was raised on behalf of the present petitioner by filing decision of the High Court, containing proposition of law on the point in issue, the date was fixed on 5.3.2004 for argument. After argument on behalf of the parties, order was passed of course on merit on 5.3.2004 deciding the matter within statutory period of six months against the petitioner and certainly not on the issue of extension of further period beyond six months. 9. A Bench of the Patna High Court in the case of S.K. Rai v. The State reported in 1975 BBCJ 879 held that in view of the explicit and peremptory nature of the provision of Sub-section (6) of Section 116 of the code, no order for terminating the proceeding is required in the sense that if the order for termination is not made, the proceeding-still continues. By virtue of the provision of Sub-section (6) of Section 116 of the Code the termination takes place automatically. If the Magistrate wants to keep the proceeding alive for any special reason, or reasons he has to record the same in writing and make a direction to the effect that for the said special reasons the proceeding will continue. But this has to be done before the expiry of the said period of six months and not after the expiry of the said period. In the present case also it is a fact that learned Executive Magistrate passed the order impugned dated 3.3.2004 by allowing the extension of the proceeding before it terminates after six months but without reasons to be recorded. In the present case also it is a fact that learned Executive Magistrate passed the order impugned dated 3.3.2004 by allowing the extension of the proceeding before it terminates after six months but without reasons to be recorded. At the same time such extension was not given effect to since the final order of the proceedings was passed on 5.3.2004 and in this manner the order of extension of the period was not acted upon rather, final order impugned dated 5.3.2004 was passed within the statutory period of six months on merit and, therefore, if the order impugned dated 3.3.2004 is read together with the order impugned 5.3.2004 there appears neither irregularity nor illegality since both the parties were heard at length and after perusal of the documents produced on their behalf the order impugned dated 5.3.2003 was passed which appears to be legal order and it does not call for any interference of this court under Section 482 of the Code of Criminal Procedure. Accordingly, this petition is dismissed.