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M. Bhimaroo Dora Vs. Bhajaram SwaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 586 of 1983
Judge
Reported in1985(II)OLR176
ActsCriminal Prccedure Code , 1973 - Sections 107 and 116(6)
AppellantM. Bhimaroo Dora
RespondentBhajaram SwaIn and ors.
Appellant AdvocateR.C. Ram, Somanath Naik and B.K. Patnaik
Respondent AdvocateNone
DispositionPetition allowed
Cases ReferredSona Khan and Ors v. State
Excerpt:
.....rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the petitioner complained of overt acts perpetrated by the opposite parties on several dates whereby, there was apprehension of breach of peace on satisfaction of which, the learned executive magistrate, on 4.1.1983, drew the preliminary order and directed the opposite parties to appear before him on 22. 1. 1983 and show cause why they should not execute bonds of rs. 500/- each wish one surety for the like amount to keep the peace for a period of one year. this contention is well-founded......on several dates whereby, there was apprehension of breach of peace on satisfaction of which, the learned executive magistrate, on 4.1.1983, drew the preliminary order and directed the opposite parties to appear before him on 22. 1. 1983 and show cause why they should not execute bonds of rs. 500/- each wish one surety for the like amount to keep the peace for a period of one year.3. on 22. 1. 1983, the opposite parties appeared and applied for adjournment to show cause. adjournment was granted and they were permitted to show cause on 25. 2. 1983. on 25. 2. 1983, the counsel for the opposite parties who represented them appeared, but did not show cause. therefore, the learned executive magistrate passed order dispensing with the show cause and posted the case to 30. 3. 1983 directing.....
Judgment:

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the learned Executive Magistrate, Bhanjanagar, on 3.9.1983 terminating the proceeding under Section 107 of the Code of Criminal Procedure (hereinafter referred to as 'Code').

2. The parties to the proceeding had previous litigation. The petitioner complained of overt acts perpetrated by the opposite parties on several dates whereby, there was apprehension of breach of peace on satisfaction of which, the learned Executive Magistrate, on 4.1.1983, drew the preliminary order and directed the opposite parties to appear before him on 22. 1. 1983 and show cause why they should not execute bonds of Rs. 500/- each wish one surety for the like amount to keep the peace for a period of one year.

3. On 22. 1. 1983, the opposite parties appeared and applied for adjournment to show cause. Adjournment was granted and they were permitted to show cause on 25. 2. 1983. On 25. 2. 1983, the counsel for the opposite parties who represented them appeared, but did not show cause. Therefore, the learned Executive Magistrate passed order dispensing with the show cause and posted the case to 30. 3. 1983 directing the petitioner to adduce evidence. On 30.3.1983, the opposite parties did not appear and so the learned Executive Magistrate issued non-bailable warrants of arrest against them to secure their appearance. On that day two witnesses for the petitioner were present, but they could not be examined. The case was posted to 11. 4. 1983, on which date, the petitioner produced two witnesses in support of his case. The witnesses examined by him and were cross-examined by the counsel for the opposite parties. The case was posted to 11. 5. 1983 for further evidence. On subsequent dates some witnesses for the petitioner were further examined and cross-examined. On 3. 9. 1983 the learned Executive Magistrate passed the impugned order and held that a period of six months in terms of Section 116(6) of the Code had already expired from the date of commencement of the enquiry and so he terminated the proceeding.

4. Mr. R.C. Ram, appearing for the petitioner urged that the learned Executive Magistrate did not indicate in the impugned order as to when the enquiry under Section 116 of the Code commenced. He was perhaps under the wrong notion that the enquiry commenced on the date of appearance of the opposite parties in his Court on 22. 1. 1983. But according to the materials available on the trial Court record, it would be apparent that the enquiry commenced on 11. 4. 1983, when two witnesses for the petitioner were examined and the learned Executive Magistrate applied his judicial mind to ascertain these facts. As a period of six months had not elapsed from 11.4.1983, the learned Executive Magistrate committed a serious illegality by terminating the proceeding by the impugned order. This contention is well-founded.

5. According to the provisions of Section 116(6) of the Code, the enquiry shall be completed within a period of six months from the date of its commencement, and if such enquiry is not so completed, the proceedings shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate shall otherwise direct. In the context of the above, the main point for determination is as to when the enquiry commenced and the same is no longer res integra. In the Full Bench decision reported in 58 (1980) C. L. T. 245 : Sona Khan and Ors v. State, it was held :

''As we have already indicated, commencement of inquiry starts when the Magistrate attempts in a legal way to put the allegations to test for finding out whether they are the facts.'

As already stated, in the present case, the opposite parties appeared on 22.1.1983 and applied for adjournment to show cause. On 25.2.1983 they did not personally appear and were represented by their counsel. On that day show cause by them was dispensed with. On 30.3.1983, the opposite parties did not appear, for the reason of which, non-bailable warrants of arrest were issued to secure their presence. On 11.4.1983, both the parties were present and two witnesses for the petitioner were examined and cross-examined. Therefore, according to the principle laid down in the case of Sona Khan (supra), the learned Executive Magistrate applied his judicial mind to the case on 11.4.1983. It was on that date that he attempted in a legal way to put the allegations to test for finding out whether the facts were true. Therefore, the crucial date for commencement of the enquiry was 11.4.1983. The impugned order was passed within a period of six months, i. e., on 3.9.1983 and so it was not in accordance with Section 116(6) of the Code. The learned Executive Magistrate committed an illegality in passing the impugned order which cannot be sustained.

6. For the reasons stated above, the impugned order dated 3.9.1983 is set aside. The case shall now go back to the Court of the learned Executive Magistrate for disposal in accordance with law at the stage at which it was left prior to the passing of the impugned order. Revision is allowed.


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