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Govindan Nair Balakrishnan Nair Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1952CriLJ1523
AppellantGovindan Nair Balakrishnan Nair
RespondentState
Cases ReferredBabu Ram v. Rex A.I.R.
Excerpt:
- - 515 has if we say so with respect, clearly explained the true position. i am clear that this was not the intention of the code section 120, sub-section (2) lays down clearly that the period for which security shall be given shall commence on the date of the order under section 118, that is, the date of the final order. that ease is however clearly distinguishable in that the preliminary order called upon the counter-petitioners to show cause why they should not be bound down to maintain the peace for a period of three months commencing from a specified date, namely 18th august 1947. in in re tarannagoud 51 mad, 515 wallace ,j......reason, fixes a later date.3. as mentioned already, the preliminary order did not say when the one year period was to commence and when that happens to be so courts are bound to give effect to the above statutory provision. the opposite view that the period should run from the date of the preliminary order or the notice is frought with mischievous consequences. a decision of wallace, j. reported in re : taranagowd 51 mad. 515 has if we say so with respect, clearly explained the true position. in that case, the final order was passed within the period mentioned in the preliminary order and called upon the counter-petitioners therein to furnish security for the period specified in the preliminary order commencing with the final order. it was contended in revision that the court had no.....
Judgment:

Koshi, C.J.

1. The short point for decision in this Original Petition is whether a proceeding initiated under the preventive sections of the Criminal Procedure Code cannot be proceeded with after the expiration of the period mentioned in the preliminary order. On 25.8.1124, the First Class Magistrate of Meenachil initiated proceedings under Section 103 of the Travancore Criminal Procedure Code (Section 107 of the Criminal Procedure Code Act V of 1898) against the petitioner and 12 others to show cause why they should not be bound down to maintain the peace for a period of one year. The notice of, the preliminary order was issued on 23.10.1124 and 4.11.1124 was the date fixed for the appearance of the parties. The preliminary order or the notice did not specify when the period of one year was to commence. It would appear that in a revision filed against an interim order for security passed under Section 117 (Section 113 in Travancore Code) the proceedings remained stayed from Mithunam 1124 till Meenam 1126 and when the enquiry was re-started after the interim order was vacated in revision the petitioner filed this original petition to quash the proceedings before the Magistrate on the ground that by reason of the expiry of 'one year' the Magistrate had ceased to have competence or jurisdiction to proceed with the matter.

2. We are afraid there is no substance in this petition. Though decided cases on the point are few, Section 120 (Travancore Section 116) is decisive of the point. That section enacts as follows:

1. If any person in respect of whom an order requiring security is made under Section 106 or Section 118, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment the period for which such security is required shall commence on the expiration of such sentence. 2. In other cases such period shall commence on the date of such order, unless the Magistrate, for sufficient reason, fixes a later date.

3. As mentioned already, the preliminary order did not say when the one year period was to commence and when that happens to be so Courts are bound to give effect to the above statutory provision. The opposite view that the period should run from the date of the preliminary order or the notice is frought with mischievous consequences. A decision of Wallace, J. reported in re : Taranagowd 51 Mad. 515 has if we say so with respect, clearly explained the true position. In that case, the final order was passed within the period mentioned in the preliminary order and called upon the counter-petitioners therein to furnish security for the period specified in the preliminary order commencing with the final order. It was contended in revision that the court had no jurisdiction to pass such an order. The preliminary order was passed on 4th January 1926 and that called upon the counter-petitioners to show cause against giving security to keep the peace for one year. The contention raised in revision before the High Court was that it was not open to the trial court to order security for more than one year from the date of the preliminary order, that is, at the farthest, up to the 4th January 1927. The learned Judge repelled the contention in the following words:

I am not prepared to accept this argument, which would entail that in a case of this kind the time occupied by the trial would have to be subtracted from the period for which a security should be given. Such an interpretation of the law is bound to encourage accused persons in prolonging the trial as long as possible, since the longer they prolong it, the shorter will be the time for which they will give security; in fact, were they successful in prolonging the trial for one year, they will escape having to give security at all, and render the whole proceedings something of a farce. I am clear that this was not the intention of the Code Section 120, Sub-section (2) lays down clearly that the period for which security shall be given shall commence on the date of the order under Section 118, that is, the date of the final order.

This decision was followed by a Division Bench of the Cochin Chief Court in Thomman Thomma v. Itteera Ittoop (1934) 24 Cochin L.R. 717. There the preliminary order fixed a period of one year. As here no mention was made when that period was to commence, the enquiry was a protracted one and lasted for over 14 months. The court found that it was a fit case to order the counter-petitioners to execute a bond to keep the peace, but no such order was passed as the Magistrate thought that as one year -had elapsed from the date of preliminary order he had no jurisdiction to pass a final order in terms of his finding; instead the counter-petitioners were discharged. The Division Bench set aside the order in revision and directed re-enquiry,

4. The petitioner's learned Counsel invited our attention to a decision of a Single Judge of the Allahabad High Court reported as Babu Ram v. Rex A.I.R. 1949 All. 21 in support of the contention that trial court would lose jurisdiction to proceed with the enquiry or pass the final order after the expiration of the period mentioned in the preliminary order. That ease is however clearly distinguishable in that the preliminary order called upon the counter-petitioners to show cause why they should not be bound down to maintain the peace for a period of three months commencing from a specified date, namely 18th August 1947. In In re Tarannagoud 51 Mad, 515 Wallace ,J. has given sufficient indication that his decision would have been, different had the preliminary order specified that the period should commence from its date or from the date of the notice.

5. In the light of the statutory provision adverted to and the authorities cited above we have to dismiss the petition as groundless and it is so ordered.


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