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J.C. Mehta Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 126 of 1981
Judge
Reported in1982CriLJ1488; 22(1982)DLT64; 1982RLR611
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 107, 111, 116 and 116(6)
AppellantJ.C. Mehta
RespondentThe State and anr.
Advocates: D.B. Sethi,; Harish Gulati and; O.D. Gandhi, Advs
Cases Referred and Hasan Ali & Others v. The State of Rajasthan
Excerpt:
.....is date when inquiry proceed under section 116 (6) - inquiry had split over duration of six months - inquiry came to an end automatically by operation of mandatory provisions contained in section 116 (6) - proceedings dropped against petitioner. - - he also granted extension of period for the purpose of enquiry as contemplated by section 116(6) of the code observing that legal proceedings could not be allowed to be defeated by the inaction of the magistrate (i. this conclusion is further fortified by sub-section (7) of section 116 which empowers the sessions judge to vacate a direction made by the magistrate under sub-section (6) permitting the continuance of the proceedings, if he is satisfied that it was not based on any special reason or was perverse. hence, the..........to prolong beyond the said period. so, the magistrate cannot, at his own violation, extend the period of inquiry by sheer inaction or by functioning in a perfunctory manner and giving long and unnecssary adjournments. it will be against the letter and spirit of this salutary provision that damocles sward is allowed to hand over the head of a person proceeded against indefinitely. hence, strict adherence to this requirement of law is absolutely essential. (9) i am fortified in the view i have taken above by some decisions of some other high courts. in hasan ali & others v. the stale of rajsthan (1979) 12 w l 151, the learned acting chief justice observed that: 'theperiod of six months prescribed for completing the inquiry, in my opinion, is a mandatory direction of the legislature......
Judgment:

J.D. Jain, J.

(1) J. G. Mehta was married to Major M. K. Singha, respondent No. 2, on 19th February, 1973 in accordance with Hindu rites and ceremonies Thereafter, they lived together as husband and wife only up to 26th September, 1973, at the place of posting of respondent No 2 in Mizoram. However, they could not pull on together smoothly and the petitioner's daughter was allegedly turned out of the matrimonial house by respondent No. 2 during advance stage of pregnancy. Subsequently, a son was born out of the wedlock on 18th December, 1973. Respondent No. 2 thereafter moved a petition for judicial separation sometime in August, 1975. Civil litigation between the parties also commenced with regard to the custody of the child and at present the child is in the custody of respondent No. 2 as per orders of the Court although the mother of the child has been permitted to see him off and on.

(2) In the meanwhile, father of respondent No. 2 died on 17th December) 1978. On coming to know of it, the petitioner Along with Smt. Rashmi Singha went to the house of respondent No. 2 at 61/10, Rajinder Nagar, to offer condolence. However, it appears that an altercation took place between the parties and on a report lodged by respondent No. 2 with the police security proceedings under Section 107/150, Code of Criminal Procedure (for short the code) were initiated against the petitioner on the basis of a Kalendra filed by the police. The allegation made by respondent No. 2 therein was that the petitioner and his daughter Smt. Rashmi Singha had come to his house to snatch the child from him and they kicked up a row with him on that account. So, he apprehended breach of peace on the part of the petitioner. A separate report was also lodged by the petitioner apprehending breach of peace from respondent No. 2 but it appears that proceedings under Section 107/150 of the Code were initiated only against the petitioner.

(3) It appears that no process whatsoever was made and no evidence was produced during the course of enquiry held by Shri Naranjan Singh, Assistant Commissioner of Police. So, on the expiry of six months from commencement of the enquiry, he dropped the proceedings vide order dated 23rd November, 1979, in view of the provisions contained in Section 116(6) of the Code. The petitioner was accordingly discharged. Felt aggrieved by the order of discharge, respondent No. 2 filed a revision petition in the Court of Session. It was heard by an Additional Sessions Judge, who vide his order dated 30th January, 1980, set aside the order of discharge and remanded the case to the Assistant Commissioner of Police with a direction to go ahead with the enquiry complete the same without undue delay after affording reasonable opportunity to the parties to produce their evidence. He also granted extension of period for the purpose of enquiry as contemplated by Section 116(6) of the Code observing that legal proceedings could not be allowed to be defeated by the inaction of the Magistrate (i.e. the Assistant Commissioner of Police in the instant case) himself where the life or security of an individual was being threatened.

(4) After the remand of the case Shri Ram Murti, Assistant Commissioner of Police, took over the enquiry apparently because he had succeeded Shri Naranjan Singh. He issued notices to the parties for appearance on 15th April, 1980, but on that day the petitioner was absent. On 15th May, 1980, respondent No. 2 examined five witnesses but their cross-examination was deferred on the request of the petitioner as his counsel was not available on that day. The cross-examination of all the witnesses concluded on 26th June, 1980 and the case was then adjourned to 26th July, 1980. On that day, the PWs were present but the case was adjourned to 24th September, 1980. The file docs not show whether any witness of respondent No. 2 was present on that day or not. Eventually on 22nd October, 1980, the Assistant Commissioner of Police dropped the proceedings observing that no fresh complaint had been received against the petitioner and that it was a time barred case. Hence, he discharged the petitioner. Feeling aggrieved, respondent No. 2 again went in revision. The same has been allowed by an Additional Sessions Judge and the case has been remanded again to the Assistant Commissioner of Police for completing the enquiry and making an appropriate order. He has, inter alia, observed that :

'ONCEthe time limit of six months was extended, the A.C P. was duty bound to complete the enquiry and decide the proceedings finally and then pass the appropriate order. ......................................... The A. S. J. did not place any limitation of time in completing the proceedings in this order and simply extended the period laid down in Section 116(6),Cri.P.C. Even otherwise, under these circumstances, the A.C.P. was required to give a specific finding that there was no longer any apprehension of breach of peace at the hands of the parties proceeded against..............................'

(5) Feeling aggrieved by the said order, the petitioner has come up in this revision.

(6) The learned counsel for the petitioner has canvassed with considerable fervour that the proceedings in the instant case having been initiated as far back as January, 1979, had been continued in complete violation and utter disregard of the mandatory provisions contained in Section 116(6) of the Code which prescribes a maximum period of six months for completion of enquiry under Section 107 of the Code after its commencement. He has pointed out that in the instant case notice under Section 111 was given to the petitioner as far back as 17th February, 1979 and as such the proceedings were rightly dropped by the Assistant Commissioner of Police on 23rd November, 1979. So, the learned Additional Sessions Judge slipped into a grave error of law in reviving the enquiry and extending the period. Even assuming that the aforesaid order of the Additional Sessions Judge was binding on the parties, the dropping of proceedings by the Asstt Commissioner of Police for the second time cannot be assailed as being tainted with illegality or even impropriety inasmuch as the the Assistant Commissioner of Police simply complied with legislative mandate contained in Section 116(6) of the Code.

(7) Section 116(6) which is a new provision introduced in the Code of 1973, reads as under :

'THEinquiry 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, Magistrate otherwise directs : Provided that where any person has been kept in detention pending such inquiry, the proceedings against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention.'

On its plain language this provision contains two-fold legislative mandate, viz., (1) it determines the span of life of the proceedings under Section 107 as six months ; and (2) it lays down the consequence of non-compliance with its provisions. The use of expression 'shall, on the expiry of the said period, stand terminated' leaves no room for doubt that in the event of the inquiry not being completed within the prescribed period, the proceedings come to an end automatically and no order of the Magistrate is, at all, called for. Indeed, the Magistrate becomes functus officio and he is divested of the seisin of the case. So, he cannot revive the same unless, of course, he exercises the power vesting in him to continue the proceedings by recording special reasons thereforee. In other words, on automatic termination of the inquiry by operation of law, the same is dead and gone for all intents and purposes and life cannot be instilled into it by the Magistrate. It does not survive even for an order by the revisional Court to extend its life. This conclusion is further fortified by Sub-section (7) of Section 116 which empowers the Sessions Judge to vacate a direction made by the Magistrate under Sub-section (6) permitting the continuance of the proceedings, if he is satisfied that it was not based on any special reason or was perverse. Evidently, the legislature in its wisdom has not only circumscribed the power of the Magistrate to extend the life of inquiry by special reasons to be recorded in writing but has also placed a curb on the exercise of such power by subjecting it to scrutiny by a higher court. No corresponding provision, however, has been made in Section 116 or else where in the Code empowering the Sessions Judge to direct continuous of the proceedings in the events of its coming to an end automatically as provived in Sub-section (6). By necessary implication, thereforee, the power of a revisional Court to direct continuance of proceedings after it has come to an end is excluded.

(8) The reason for this legislative mandate is not far to seek. Section 107 is preventive and not punitive. It is not intended for punishment of past offences and the sole idea of starting proceedings under this Section against an individual is to prevent him from commission of breach of peace which is imminent. As the proceeding affects the liberty of the subject, who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law and the purpose of such proceedings is not served if it is kept pending for months and months on one pretext or the other. Surely, prolongation of these proceedings for years is not calculated to achieve the object. It is a matter of common knowledge that before the introduction of Section 116(6), the proceedings under Section 117 of the old Code tended to protract over years resulting in avoidable hardship and unnecessary expense to the person proceeded against. The length to which such cases were spun out sometimes, threatened to be a danger to the Administration of justice. Hence, the legislature in its anxiety to prevent any abuse of process of law has provided that normally the proceedings must be completed within a period of six months from the date of its commencement and that only in exceptional cases where special reasons exist they may be allowed to prolong beyond the said period. So, the Magistrate cannot, at his own violation, extend the period of inquiry by sheer inaction or by functioning in a perfunctory manner and giving long and unnecssary adjournments. It will be against the letter and spirit of this salutary provision that Damocles sward is allowed to hand over the head of a person proceeded against indefinitely. Hence, strict adherence to this requirement of law is absolutely essential.

(9) I am fortified in the view I have taken above by some decisions of some other High Courts. In Hasan Ali & others v. The Stale of Rajsthan (1979) 12 W L 151, the learned Acting Chief Justice observed that:

'THEperiod of six months prescribed for completing the inquiry, in my opinion, is a mandatory direction of the legislature. Once six months have expired and the period for permitting the continuation of the inquiry is not extended within the period of six months, then the procecdings automatically come to an end in terms of Section 116 of the Act itself. Once an inquiry comes to an end, it no more survives. It is very difficult to hold that thereafter the Magistrate could revive it by passing an order for the continuation of inquiry despite the expiry of six months.'

To the same effect is Raghubir Singh and others v. State of U.P. and another, 1980 All L.J. 60.

(10) It may, however, be made clear at this stage that the very nature of proceedings under the Section shows that for fresh happenings, fresh proceedings can be drawn up. Evidently both the learned Additional Sessions Judges have slipped into a grave error in equating a proceeding under Section 107 of the Code with a regular trial of an accused for commission of a crime, quite unmindful of the legislative mandate contained in Subsection (6) of Section 116.

(11) The learned counsel for the respondent has also made a feeble: attempt to support the impugned order on the ground that the proceedings were dropped before the expiry of six months from the commencement of the inquiry. His contention is that the inquiry before the previous Assistant Commissioner of Police did not commence at all inasmuch no evidence whatsoever was recorded by him after service of notice under Section 111 of the Code on the petitioner on 17th February, 1979. Thus, according to him, the stage for the Assistant Commissioner of Police to apply his mind judicially/legally to the facts of the case never reached and the question of commencement of the inquiry did not arise. Reliance in thii context has been placed by him on a recent Full Bench decision of Orissa High Court in Sana Khan & others v. State, 1981 Cr. L.J. 39. In that case the learned Judges on a review of long catena of decided cases hold that :

'.........THEREis no scope for the proposition that without commencement of inquiry, an order for interim bond can be made. Inquiry does not commence as soon as the delinquient appears and the nolice under Section 112 of the Code of Criminal Procedure is readout to him............................-.......-................. ............ .....................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. Both Sub-sections (3) and (6) of Section 116 refer to this stage as the commencement of inquiry.................. ..................... .............................................it is not an inquiry within an inquiry.'

(12) However, Bombay, Patna and Rajasthan High Courts have taken a contrary view that the proceedings in the inquiry shall deemed to commence on the day when the accused puts in his appearance before the Court irrespective of the fact whether the Magistrate records his plea or not. (See Dwarka- nath Ramchandra Angachokar & Others v. The State of Maharashtra & Another, 1977 Cr. L.J. 120, Sitaram Singh & Others v State of Bihar & Another, : AIR1980Pat257 and Hasan Ali & Others v. The State of Rajasthan, (1979) 12 W L 151. On a careful perusal and consideration of these authorities projecting contrary opinion and with great regard to the learned ludges of Orissa High Court, I find myself in respectful agreement with the views taken by these High Courts.

(13) Section 111 of the Code envisages the very first stage when a Magistrate on getting information of the kind specified in Sections 107, 108, 109 or 110 is of opinion that there is sufficient ground for proceedings. The first thing he has to do on forming such an opinion is to pass a preliminary order in writing as contemplated under Section 111 setting forth the substance of information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties, if any, required. He thus initiates the proceedings under Sections 107, 108, 109 or 110 as the case may be. The next stage is contemplated in Section 112 which lays down that if the person in respect of whom an order under Section 111 is made is present in Court, it shall be read over to him or if he so desires, the substance thereof shall be explained to him. Obviously the purpose of doing so is to apprise the person, sought to be proceeded against of the contents of the preliminary order drawn up under Section 111. In case the person concerned is not present before the Magistrate on the day when the preliminary order is made he has to proceed in accordance with the procedure laid in Section 113 and issue a process for the appearance of the person concerned and read out or explain the contents of order under Section 111 to him when he appears or is brought before him in compliance with or in execution of a summons or warrant issued under Section 113. As envisaged in Section 116(1) the Magistrate shall then proceed to inquire, into truth of the information upon which action has been taken and to take such further evidence as may appear necessary. Sub-section (2) of Section 116 lays down that such inquiry shall be made, as nearly as may be practicable, in the manner prescribed for conducting trial and recording evidence in summons-cases. Chapter 20 of the Code lays down the procedure for trial of summons cases by Magistrates. Section 251 requires that when in summons case the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him) and he shall be asked whether he pleads guilty or has any defense to make, but it shall not be necessary to frame a formal charge. The first part of Section 116(1) evidently corresponds to first part of this Section. inasmuch as both the provisions contemplated that the person proceeded against/accused should be apprised of the particulars of the accusation against him. However, the second part of Section 251 requires that after substance of accusation has been read out to the accused he shall be asked whether he pleads guilty thereto or not. There is no reason why the same procedure be not followed in a proceedings under Section 107. If that be so, the Magistrate has to ask the person against whom preventive action is sought to be taken whether he admits contents of the order drawn up under Section 111 or not. This would obviously appear to be the intendment of legislature when it lays down that the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken. The concluding words of Section 116(1), 'and to take such further evidence as may appear necessary 'are of great significance inasmuch as they connote in unmistakable terms that only that much of further evidence is to be recorded which is deemed necessary. In other words, it envisages that there may be cases where no further evidence may appear necessary. For instance, when the person proceeded against says that he has no cause to show against the proposed action. In my view, thereforee, the act of asking the person proceeded against to show cause against the proposed action is in itself a step in the inquiry contemplated by Section 116(1) of the Code. It is only when the person concerned does not admit the truth of it that an inquiry shall have to be made into the truth of the information upon which action has been initiated. If this interpretation were not to be accepted, the Magis- trate may at his sweet Will go on postponing the commencement of inquiry by not reading or explaining the preliminary order made under Section 111 to the person concerned. I do not think that can be the intendment of the legislature especially in view of the recent innovation of Section 116(6) of the Code which determines the very life of the inquiry as six months. So, the letter and spirit of the foregoing provisions would warrant the conclusion that the date on which the person sought to be proceeded against appears or is brought before the Magistrate is the date when the letter is supposed to proceed with the inquiry as contemplated in Section 116(1) of the Code.

(14) In Sitaram Singh and others v. State, of Bihar and another, (supra) the Full Bench by a majority of two to one has observed that :

'SECTION 112 provides for reading over or explaining the substance of the accusation and the satisfaction of the Magistrate. Section 112 thus is akin in content to that of Section 251. As a summons trial commences with the reading out the particulars of the offence of the accused, a proceedings under Section 107 also must necessarily be deemed to have commenced with the reading over the substance of the information received. The rest of application of judicial mind for the purpose of proceeding with an inquiry under Section 117 is much too ethereal and is likely to cause confusion in the minds of subordinate Courts.When after a party has appeared in Court, the Magistrate adjourns the proceeding, he does so for the purpose of proceeding with the inquiry. Thus the forming of conclusion to proceed to enquire into the allegations takes place on the very day the party noticed appears in court.'

Uday Sinha, J. who spoke for the majority, inter alia, posed a question as under:

'WHENa party refutes the allegations what are the alternatives left to the court The only course that a Magistrate can adopt is to call upon the parties to adduce evidence in order thai it may be decided as to who is acting wrongfully which has caused apprehension of breach of the peace. Thus, the question of application of judicial mind at that stage must be considered axiomatic. If a party appears in answer to a notice, the Magistrate has no option, but to proceed to test the correctness of the allegations.'

(15) Similar view has been expressed by a Bench of Bombay High Court in Dwarkanath Ramchandra Anachekar (supra) as well as by the Acting Chief Justice in Hasan Ali and others (supra).

(16) I may allude to the ratio of the decision in Sona Khan (supra). A perusal of the judgment would show that their Lordships leaned heavily on the judgment of the Supreme Court in Madhu Limaye's case : 1971CriLJ1720 . The question before the Supreme Court was whether the Magistrate can defer the inquiry and yet ask for an interim bond as contemplated in Sub-section (3) of Section 117 of the Old Code which corresponded to Section 116(3) of the Code, although there is slight change in the latter. The words, 'pending the completion of the inquiry under Sub-section (1)' have been substituted by the words 'after the commencement and before the completion of the inquiry'. So, it was in the context of the former expression that their Lordships held that :

'THEMagistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceeding entirely one sided. It cannot be described as an inquiry within an inquiry as has been said in some cases. Some. inquiry has to be made before the bond can be ordered.

(17) Evidently these observations have no relation to the point of time when an inquiry can be said to have commenced. In my considered opinion, all that their Lordships meant to lay down was that some progress in the inquiry must be made before any action by way of interim bond can be taken, the underlying idea being that the interim bond should not be demanded on mere hearsay but after holding some inquiry which may satisfy the Magistrate prima facie about the truth of the allegations and necessity for immediate measures and enable him to record his reasons in writing.

(18) With all the respect at my command to the Judges of the Orissa High Court, I think that this is the only right view having regard to the scheme of the Code in relation to the proceedings under Sections 107, 108 109 or 110 of the Code.

(19) Applying the criterion formulated above to the case in hand, there can be little doubt that the inquiry had split over the duration of six months both in the first instance as well as after the remand of the case by the Additional Sessions Judge. So, the inquiry came to an end automatically by operation of the mandatory provisions contained in Sub-section (6) of Section 116 itself. The Magistrate need not have recorded an order to that effect. Evidently the Magistrate dropped the proceedings merely in recognition of this legal position. Hence, by no stretch of reasoning the impugned order can be sustained.

(20) To sum up, this revision petition succeeeds and the impugned order is set aside. Of course, it may be clarified that if apprehension of breach of peace still persists on account of any fresh happenings, it will be open to respondent No. 2 to apply afresh before the proper authority for initiation of fresh proceedings under Section 107 of the Code.


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