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Hasan Ali and ors. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 82 of 1976
Judge
Reported in1979WLN151
AppellantHasan Ali and ors.
RespondentThe State of Rajasthan
DispositionPetition allowed
Cases ReferredDwarkanath Ramchandra Anocahcekar v. State of Maharashtra and Anr.
Excerpt:
.....magistrate records his plea or not.;(b) criminal procedure code - section 116(6)--period of sis months--proceedings automatically terminate on expiry of six months--order expanding period of six months, passed after its expiry--held, proceedings once terminated cannot be revived.;once six months have expired and the period for permitting the continuation of the enquiry is not extended within the period of six months, then the proceedings automatically come to an and in terms of section 116 of the act itself. once an enquiry come to an no more survives. it is very difficult to held that thereafter the magistrate could revive it by passing an order for the continuation of enquiry despite the expiry of six months. the reason is that what is deed end closed, cannot be infused life nor can..........that after the expiry of six months from the date of the commencement of the proceedings, the learned magistrate has no jurisdiction to continue the enquiry under section 110 of the act. it has been submitted by him that the dale of the commencement of the enquiry shall be computed from the date of the appearance of the accused-petitioner before the learned magistrate. the accused-petitioner has put in his appearance before the learned magistrate on april 3, 1975 and since then, six months have already expired, on october 3, 1975, prior to which no order for extension of time for continuation of the proceedings was passed by the magistrate. it has, therefore, been argued by shri mathur that further continuation of proceedings was beyond the jurisdiction of the learned executive.....
Judgment:

M.L. Joshi, Actg. C.J.

1. This revision petition is directed against the judgment and order passed by the leaned Sessions Judge, Udaipur, dated January 21, 1976, whereby be upheld the order of the learned Executive Magistrate, Udaipur, dated October 23, 1975, who permitted the continuance of the proceedings under Section 110 of the Code of Criminal Procedure (hereinafter to be referred to as 'the Act'), even after the expiry of fix months from the date of the commencement of the proceedings.

2. A complaint was filed by the police under Section 110 of the Act against the accused-petitioner in the court of the City Magistrate, Udaipur on March 6, 1975. That complaint subsequently came to be transferred to the court of the Executive Magistrate, Udaipur. The same was registered by the learned City Magistrate, Udaipur, woo issued summonses to the accused-petitioner for his appearance in his Court on March 22, 1975. The summonses for hearing on March 22, 1975, were taken to be served on the accused-petitioner. The accused-petitioner, despite the service of summons, did not put in his appearance before the court. The learned City Magistrate, therefore, issued warrants against the accused-petitioner for his appearance. The accused-petitioner, in obedience of the warrant appeared in the court of the City Magistrate, Udaipur, on April 3, 1975. Later on, the case came to be transferred on August 22, 1975, in the court of the Executive Magistrate Udaipur. After the transfer if the case, no substantial proceedings took place in the court if the Executive Magistrate. On October 15, 1975, the accused-petitioner moved an application under Section 116(6) of the Act stating therein that the proceedings stood terminated after the expiry of six months from the commencement of the proceedings and therefore, they cannot be continued further. The learned Executive Magistrate rejected this application by his order dated October 23, 1975, and directed that the proceedings shall continue. In support of his order, he recorded special reasons.

3. Being aggrieved by the order of the learned Executive Magistrate, the accused-petitioner moved the court of Sessions Judge under Section 116(7) of the Act. The revision application of the accused-petitioner was dismissed by the learned Sessions Judge by his impugned order. Hence this revision.

4. Shri N.N. Mathur, learned Counsel for the accused-petitioner, has strenuously contended that after the expiry of six months from the date of the commencement of the proceedings, the learned Magistrate has no jurisdiction to continue the enquiry under Section 110 of the Act. It has been submitted by him that the dale of the commencement of the enquiry shall be computed from the date of the appearance of the accused-petitioner before the learned Magistrate. The accused-petitioner has put in his appearance before the learned Magistrate on April 3, 1975 and since then, six months have already expired, on October 3, 1975, prior to which no order for extension of time for continuation of the proceedings was passed by the Magistrate. It has, therefore, been argued by Shri Mathur that further continuation of proceedings was beyond the jurisdiction of the learned Executive Magistrate.

5. Two points call upon for my consideration in this revision. Firstly, from which date, six months, time shall be computed for the purpose of Sub-section (6) of Section 156 of the Act; and secondly, whether it is open So the Magistrate to extend the lime after the expiry of the period of six months from the date of the commencement of the proceedings.

6. Before appreciating the aforementioned two contentions raised before me, it will be profitable to notice the relevant provisions, which have beating on the contentious raised before me Section 110 of the Act relates to the security for gaud behaviour from habitual offenders. This section provides that when a Judicial Magistrate of the first class recites information that there is, within his local limits, a person who is by habit a robber, house breaker, thief or forgerer, or any person who falls under the category of Clauses (b), (c), (d), (e), (f) and (g) of Section 111 of the Act, then the Magistrate may, in the manner prescribed, require such person to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding three years, as the Magistrate many think fit. Section 100 of the Act envisages that when a Magistrate acting under Section 110 of the Act deem in necessary to require any person to show cause for such section, he shall make an order in writing setting forth the substance of the 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. Then comes Section 112. Section 112 of the Act lays down that if the person, in respect of whom, such order is made, is present in Court it shall to read over to him, or, if he so desires, the substance thereof shall be explained to him. Section 113 of the Act lays down that if such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or when such person is in custody, a warrant directing the officer, in whose custody he is, to bring him before the Court. Section 116 of the Act enjoins upon the court that when an order under Section 111 has been read over or explained under Section 112 to a person present in the court, or when any person appears or is brought before a Magistrate in complicate with, or in execution of a summone or warrent, issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken and to take such further evidence, as may appear necessary. Sub-section (2), (6) and (7) of Section 116 of the Act deserve to be specially noticed as they have got great bearing on the controversy raised before me Under Sub-section (2) of Section 116 if the Act, inquiry under Section 110 of the Act is to be made as nearly as may be practicable, in the manner of conducting trial and recording evidence as in a summons case. Sub-section (6) of Section 116 of the Act is important for my purpose, Sub-section (6) reads as under:

(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 stead terminated unless, fur 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.

From the perusal of Sub-section (6), it will appear that it containg legislative mandate that inquiry under the section shall be completed within a period of six months 120 the date of its commencement, There is further, legislative mandate that if much inquiry is not so completed, the same shall stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs.

7. In the background of legislative provisions, I now propose to deal with each of the question which countenance me in this case. The first question which needs to be examined is as to when an inquiry in proceeding under Section 116 of the Act should be held to have commenced. If we look into the provisions of Sections 111 and 116(1) and (2) of the Act, it will be evident that the procedure prescribed for such inquiry is just skin to the procedure for a summons case. Further Section 111 of the Act enjoins upon the court to read over the order to the accused and to explain the substance of the order to the accused if so desired by him on that very day From the combined reading of Sections 112 and 116(1) and (2) of the Act, I am definitely of the opinion that the proceedings in the inquiry shall be deemed to commence on the day when the accused puts in his appearance before the Court ii respective of the fact whether the Magistrate records his plea or not. From the reading of Section 113 of the Act, it would further appear that there is nothing to prevent the Magistrate from reading the accusation to him and recording his plea on the very day. When the accused appears before bin or is brought before him. There is, therefore, every valid reason to hold that the correct date of computation of sis months shall be the date on which the accused appears before the Court or is brought before the Court.

8. This takes me to the second question whether the Magistrate is competent to extend the date or time beyond six months for holding the inquiry after the expiry of six months. In the light of the legislative mandate contained in Sub-section (6) of Section 116 of the Act, the proceedings would be taken to have terminated unless the Magistrate had ordered otherwise within the period of six months The words 'stand terminated' occurring in Sub-section (6) of Section 116 of the Act are of great significance. They indicate that inquiry shall automatically stand terminated on the expiry of six months unless the Magistrate has extended the time of inquiry in accordance with the provisions of Sub-section (6) of Section 116 of the Act w 11 before the expiry of six months. The period of six months prescribed for completing the inquiry, in my opinion, is a mandatory direction of the legislature. Once six months hive expired and the period for permitting the continuation of the inquiry is not extended within the period of six months, then the proceedings 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. The reason is that what is dead and closed, cannot be infused life nor can it be revived by a magisterial order when the inquiry is no more subsisting in view of the mandatory provision contained in Section 116(6) of the Act.

9. A similar point came to be considered in Mathew v. State of Kerala 1978 K.L.T. 567. In that case. it was held that when the inquiry is not completed within the prescribed period of six months and the proceedings stand terminated on the expiry of the period of six months as there is cassation of proceedings, which cannot be revived by a subsequent order of extension passed after the expiry of the period of six months The same view was taken in Nasiru and Ors. v. State of Haryana 1978 Cr.L.J. 603, where also it was held that the extension of period of inquiry could only be ordered before the expiry of six months and rot after its expiry. In Prafulla Kr. Dutt v. Ajit Kr. Ditto and Anr. 1978 Cr.L.J. 316, the Calcutta High Court has also held that the extension of the period of inquiry beyond a period of six months should be ordered before the statutory period of six months expires, otherwise, proceedings will be deemed to be terminated. The Bombay High Court has also, in Dwarkanath Ramchandra Anocahcekar v. State of Maharashtra and Anr. 1977 Cr.L.J. 120, held that since more than six months had passed after the date of the commencement of the inquiry and the proceeding was not completed and as no order directing the continuation of the proceedings beyond the period of six months was passed by the Magistrate before the expiry of six months, the proceeding stood terminated in view of the mandatory provision of Section 116(6) of the Act. and therefore, they could not be continued. I am in respectful agreement with the view taken in the aforementioned decisions and hold that it is not within the competence of the Magistrate to have extended the period of inquiry beyond the period of six months unless he had passed the order of extension before the expiry of the period of six months,

10. Judged in the light of the above answers to the questions, which I have rendered earlier, I proceed to examine the correctness and propriety of the impugned orders passed by the learned Magistrate and the learned Sessions Judge. In the instant case, the accused pat in his appearance on April 3, 1975 and the period of six months expired on October 3, 1975. Admittedly, by October 3, 1975, the inquiry in question remained incomplete. It, therefore, automatically stood terminated as no order for extension of time of inquiry was passed by the Earned Magistrate within the period of six months. It is true that the learned Magistrate, subsequently, by his order dated October 23, 1974 extended the period of inquiry and directed that the same shall be continued, but this order if not at all in conformity with the spirit and mandate of the legislature contained in Section 116(6) of the Act. The order passed by the learned Sessions Judge upholding the order of the learned Magistrate dated October 23, 1975, is also of no consequence. Indeed, Sub-section (7) of Section 116 of the Act will not validate the order of the learned Magistrate merely because he has put his seal of approval on that order The order of the learned Magistrate was wholly without jurisdiction and what is without Jurisdiction cannot be ratified merely because the Sessions Judge has approved that invalid order. The conclusion is, therefore, irresistible that the proceedings under Section 116 of the Act, in the case before me, automatically stood terminated on October 3, 1975, & the same would not revive in the absence of an order of extension duly made within the period of six months for continuation of the inquiry. There is, therefore; no escape from the conclusion that she order of the learned Magistrate and the order of the Sessions Judge upholding the orders of Magistrate dated October 23, 1975, is not sustainable in law and the same is to be set aside.

11. I, therefore, accept this revision petition, set aside the order of the learned Sessions Judge upholding the order of the learned Magistrate dated October 23, 1975. An a natural corollary, the proceedings under Sections 116 of the Act shall stand concluded and shall not be continued any further.


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