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Prafulla Kr. Dutt Vs. Ajit Kr. Datta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1978CriLJ316
AppellantPrafulla Kr. Dutt
RespondentAjit Kr. Datta and anr.
Excerpt:
- .....proceedings started on the 5th of september, 1974 and appearance was made on 19-9-1974 and the six months period had lapsed in march 1975 and the proceedings became automatically terminated in march, 1975 as the learned executive magistrate did not extend the period before the lapse of the period of six months and extension made after six months is illegal. as the period of six months had lapsed sometime in march, 1975 but the period was not extended before march, 1975 but on the 15th of may, 1975. however, it appears from the order-sheet and also from the sworn petition of the petitioners that proceedings were drawn up by the transferee court again on 19-4-1975. it is urged before me by the learned advocate appearing for the petitioners that the enquiry started from the date when the.....
Judgment:
ORDER

Jyotirmoyee Nag, J.

1. This Rule is directed against an order passed by the learned Sessions Judge, Hooghly rejecting an application made by the petitioner Under Section 116, Sub-clause (7) of the Cr.PC The Sub-Divisional Executive Magistrate, Chandernagore drew up a proceeding Under Section 107 against the petitioners on 5-9-1974. The petitioners appeared before the learned Magistrate on 19-9-1974. This case was numbered as Misc. Case No. 234 of 1974. Thereafter, the said case was transferred to the Court of Sub-Divisional Executive Magistrate, Sadar Hooghly and the case was renumbered as Misc. Case No. 40 of 1975 and on 12th March, 1975 the Su'b-Divisional Executive Magistrate drew up a,proceeding Under Section 107 of the Criminal P. C. against the petitioners again. On the 19th of,April, 1975 the petitioners entered appearance in the said Misc. Case No. 40 of 1975 in the Court of Sub-Divisional Executive Magistrate, Sadar Hooghly. Subsequently the petitioners showed cause. But no evidence was taken on either side so far, though several dates were, fixed for that purpose. On the 21st January, 1976 the petitioners filed an application before the Sub-Divisional Executive Magistrate, Sadar Hooghly in Misc. Case No. 40 of 1975 praying that the proceedings may be dropped Under Section 116(6) of the Cr.PC> 1973 as six months had expired from the date of the commencement of the proceedings and within the said period the enquiry had not been completed. In the meantime on the 15th of May, 1'975, Sri A. K. Dutta Executive Magistrate, 1st Class, Sadar Hoogihly had extended the period of six months observing that there existed apprehension of breach of peace and as such the case should proceed. On the 21st of January 1976 the petitioners made an application Under Section 116(6) for dropping the proceedings before the learned Magistrate who rejected the said petition on 18-8-1976. Being as-grieved by the order dated 1.8-8-1976 passed by the Executive Magistrate, 1st Class, Sadar Hoogihly the petitioners moved an application Under Section 116(7) of the Cr.PC before the Court of Sessions Judge, Hooghly which was numbered as Criminal Misc. Case No. 698 of 1976. The learned Sessions Judge, Sri. S. S. Ganguly, passed an order dated 30-11-1976, rejecting the petition Under Section 116(7) of the Cr.PC Against the order dated 30-11-1976 the petitioners have come up before this Court Under Section 401 of the Cr.PC The order rejecting the petition Under Section 116(7) of the Cr.PC is challenged before me as being not according to law. The petitioners challenged the order dated 15-5-1975 before the learned Sessions Judge inasmuch as by that order the learned Sub-Divisional Magistrate had extended the time of six months Under Section 116(6) of the Cr.PC It is contended before me that the order dated 15-5-1975 is bad in law inasmuch the proceedings started on the 5th of September, 1974 and appearance was made on 19-9-1974 and the six months period had lapsed in March 1975 and the proceedings became automatically terminated in March, 1975 as the learned Executive Magistrate did not extend the period before the lapse of the period of six months and extension made after six months is illegal. As the period of six months had lapsed sometime in March, 1975 but the period was not extended before March, 1975 but on the 15th of May, 1975. However, it appears from the order-sheet and also from the sworn petition of the petitioners that proceedings were drawn up by the transferee Court again on 19-4-1975. It is urged before me by the learned Advocate appearing for the petitioners that the enquiry started from the date when the petitioners made their first appearance before the learned Executive Magistrate and the date of six months is to be calculated from that date of first appearance. According to the submissions of the learned Advocate for the petitioner the provision of Section 116(1) shows that when a person is present in Court and an order made under S. 111 has been read to a person present in Court Under Section 112 the Criminal P. C. and in other cases i. e. if he is not present in Court or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued Under Section 113, the date of appearance is the date when he comes before the Court. Therefore, from that date the Magistrate starts to inquire into the truth of the information upon which action was taken and proceeds to take such further evidence if necessary. Sub-section (2) provides that as far as practicable such enquiry shall be made in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases. In a summons case the enquiry starts as soon as the accused appears before the Magistrate. If, I accept the submissions of the learned Advocate for the petitioners that the enquiry starts on the date when the second party appears before the Court and the period of six months must be computed from the date of such appearance then in this case they appeared according to the order sheet and according to the sworn petition of the petitioners on 19-9-1975.

2. It does not appear from the order of the learned Magistrate on 15-5-1975 as to which date he took as the starting point of the period of six months. Be that as it may, I have to decide upon proper interpretation of Section 116(1) and also Section 116(6) as to when the enquiry starts in a proceeding Under Section 107 of the Cr.PC It has been urged by the learned Advocate appearing for the opposite party as well as for the State that the enquiry in relation to a proceeding under Section 107, Cr.PC starts only when the evidence is taken Under Section 116(1). In this case as I have already stated no evidence was taken, though several dates were fixed for adducing evidence. In a proceeding Under Section 107 no particular form of enquiry is provided. It is enough that there are some materials before Magistrate from which he feels satisfied that immediate steps are necessary. Consideration of police papers or hearing advocate and/or application made by the party concerned is a stage in the enquiry even before evidence is recorded,

3. This enquiry Is prior to the issue (of the notice under Section 111', Cr.PC

4. Under Section 273, Cr.PC 'explanation' the word 'accused includes a person in relation to whom any proceeding under Chap. VIII has been commenced under this Code.

5. Under Section 116(2) it is provided that such enquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases.

6. If in the summons-case the trial starts when the accused appears before the Magistrate, then I see no reason to hold why the 'enquiry' envisaged in Section 116(1) should commence when the recording of evidence is started by the learned Executive Magistrate, as submitted by the learned Advocates for the State and the Opposite Party.

7. The first appearance being on 19-9-1974, the order dated 15-5-1975 being long after expiry of the period from the date of first appearance of the 2nd Party is bad being contrary to the provisions of Section 116(6). The extension should be made before the statutory period expires or else the proceedings will be deemed to be terminated. It must be remembered that these are preventive measures provided by the legislature in case of immediate apprehension of breach of peace and if within six months of the starting of the enquiry no further apprehension of breach of peace is reported the proceedings should not continue.

8. As the notice under Section 111, Cr.PC serves the purpose of a charge, the appearance of the 2nd Party after receipt of such notice, is the starting point of the enquiry and hence within six months the enquiry except as provided in Section 116(6) must be completed.

9. In view of what is stated above, I set aside the impugned order of the learned Sessions Judge and I make the Rule absolute.


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