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Paresh Chandra Hati and ors. Vs. Ahitosh Panda and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1978CriLJ1171
AppellantParesh Chandra Hati and ors.
RespondentAhitosh Panda and anr.
Cases ReferredIn Piare Dusadh v. Emperor
Excerpt:
- .....sub-section (1) of section 116 indicates, in our view, that with mere appearance of the opposite party inquiry does not commence. moreover, there is the word 'commencement' in sub-section (8) of section 116 of the code. this word again implies that after the starting of a proceeding under section 107. there is a stage when inquiry commences. there may be cases where the opposite party may appear and pray for time for showing cause against the charges on reasonable and bona fide grounds. again there may be occasions, as in the present case, when opposite party appears in pursuance of a summons issued under section 113 and along with the appearance files a show cause petition challenging the allegations and the magistrate may, upon consideration of the cause shown, think it necessary to.....
Judgment:

R. Bhattacharya, J.

1. This revisional application has been filed by the petitioners, five in number, who are the opposite parties in a proceeding under Section 107 of the Cr. P.C. before the learned Magistrate drawn up, at the instance of the first party Ahitosh Panda who is impleaded in this application as one of the opposite parties. The prayer o4 the petitioners before this Court is for quashing the proceedings pending before the learned Magistrate.

2. The petition is being opposed by both the first party and the State. Mr. S. N. Ganguly appears for the petitioner, Mr. Satyajit Mondal represents the first party and Mr. Sudipta Moitra appears on behalf of the State. The contention of Mr. Ganguly before us is that in view of Sub-section (8) of Section 110 of the Cr. P.C. 1973 the proceeding before the trial court ought to have been terminated with the expiry of six months from the commencement of the inquiry. It is contended from the side of the petitioners that as soon as the opposite party appears in a proceeding under Section 107 of the Cr. P.C., the inquiry starts and if the inquiry is not concluded within a period of six months from that appearance, the proceeding automatically terminates. The learned Advocates appearing on behalf of the opposite parties have, however, submitted that the inquiry commences with the taking of evidence in such proceeding and not from the appearance of the opposite parties. The moot question that arises for decision in the case before us relates to the time of the commencement of the inquiry referred to in Section 116 of the Criminal P. C.

3. Before proceeding to examine the question, let us take note of certain facts as will appear from the order-sheet of the learned Magistrate in this case. On 25-7-74 the learned Sub-divisional Magistrate, Diamond Harbour, saw the police report and to him it appeared that there was a likelihood of a breach of peace or disturbances of the public tranquillity by the opposite parties. He, therefore, on that very day directed them to show cause, under Section 107 of the Cr. P.C., by 24-8-74 why they should not be ordered to furnish a bond of Rs. 1000/- to keep peace for a period of one year in view of the police report about the apprehension of breach of peace or disturbances of public tranquillity on account of wrongful acts of the opposite party. On 24-8-74 the opposite party appeared and showed cause in compliance with the order of the learned Magistrate. The opposite parties were allowed bail of Rs. 500/- each and 12-11-74 was fixed as the next date. On that date the opposite parties were present in court and the case was transferred to the file of another Executive Magistrate for disposal. The Executive Magistrate, to whose file the case was transferred, fixed 9-1-75 for evidence. On 9-1-75 the opposite parties were present No witness on behalf of the first party was present and on the prayer of an Advocate of the State panel, the hearing was adjourned till 18-4-75. On the date fixed, although the opposite parties were present, no witness On behalf of the first party was present and again on the prayer of the panel Advocates who appeared for the first party, the hearing was shifted to 9-6-75. Again the date was shifted. Without stating any details as to what happened on different dates thereafter, it may be stated that the first party wanted to say that there was still apprehension of breach of peace and that he was being threatened with dire consequences by the opposite parties, The learned Magistrate, it appears, called for a report from the Officer-in-Charge of the local Police Station and in the meantime the opposite parties were directed to show cause why their bail should not be cancelled and why they should not be bound down by other bonds. On several dates thereafter a question arose whether there was still apprehension of breach of peace and whether the opposite parties were threatening the first party with dire consequences. It is, however, to be noted that the learned Magistrate did not take any active step for examining the witnesses and to dispose of the proceeding at an early date. The opposite parties, however, moved the present application on 9-4-76. The present Rule was issued and ad interim order of stay of further proceedings by the learned Magistrate was granted.

4. As appears from the order-sheet the learned Magistrate on 25-7-74 directed the opposite parties to show cause why they should not be ordered to furnish a bond of Rs. 1000/- each to keep peace for a period of one year on the basis of a police report stating that the opposite parties were likely to commit a breach of peace or disturbance of public tranquillity or do any wrongful act which might result in breach of peace and on 24-8-74 the opposite parties appeared and submitted a petition showing cause in compliance with the order of the learned Magistrate, For our purpose Section 116 of the Cr P. C., 1973 is relevant and Sub-section (1) of Section 116 is as follows:

When an order under Section 111 has been read or explained under Section 112 to a person 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 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) says:

Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons cases.

The next sub-section which is relevant for our purpose is Sub-section (6) which reads as follows:

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, stand terminated unless, for 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.

5. According to the provisions just mentioned, we find that 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 Magistrate shall proceed with the inquiry as to the truth of the information upon which the proceeding was started and he is to take such further evidence as may appear to him necessary. In the present case the opposite parties appeared before the learned Magistrate in compliance with his order to show cause and upon the summons issued under Section 113 of the Code. In fact on 24-8-74 the opposite parties appeared and showed cause challenging the police report and also the allegation about the breach of peace or disturbances of public tranquillity due to their action. On the filing of the show cause petition by the opposite parties the Magistrate came to know their case and ac cording to Sub-section (1) of Section 116 it is for him to proceed to inquire into the truth of the allegations made against the opposite parties and further the learned Magistrate is at liberty to take further evidence as would be thought necessary by him for coming to a correct decision about the dispute. The next question that crops up for consideration is to ascertain the nature and character of the inquiry referred to in Sub-section (1) and Sub-section (2) has made it clear that the said inquiry shall be as nearly as may be practicable in the manner prescribed for conducting trial and recording evidence in summons cases. Chapter XX of the Cr. P.C. 1973 speaks about the procedure relating to the trial of summons cases by Magistrates. This procedure shall be followed as far as practicable in the matter of inquiry referred to under Section 116 of the Code. Section 251 under Chapter XX says that when in a summons case the accused appears or is brought before the Magistrate the particulars of the offence of which the accused is charged shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make but there is no necessity to frame any formal charge against the accused. In Section 252 we get that if the accused pleads guilty, the Magistrate may in his discretion convict him thereon. In Section 253 we got provision allowing an accused person desiring to plead guilty to the charge without appearing before the Magistrate to send a letter containing his plea and the Magistrate may in his discretion convict the accused in his absence on his plea of guilty and sentence him to pay fine as indicated in that section. Sub-section (1) of Section 254 is important and relevant for our purpose and it is quoted below:

If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence.

The provisions just mentioned in Chap. XX of the Cr. P.C. are applicable to inquiry referred to in Section 116 of the Cr. P. Code, According to the provisions laid down in Chapter XX of the Code we find that the accused, after his appearance, will be informed about the alleged offence levelled against him and if he pleads guilty, the learned Magistrate may in his discretion convict him thereon. Even an accused in some cases when summoned may plead guilty to the charge levelled against him by a letter and he may be convicted thereon. But in case the accused does not plead guilty or the Magistrate does not convict the accused person in spite of the plea of guilty, it shall be his duty to proceed to hear the prosecution and to take evidence in support thereof and also to hear the accused and to take the evidence, if he produces any, and shall come to his own decision following the procedure laid down in Chap. XX. The learned Magistrate, in our case, ought to have followed that procedure. The opposite parties admittedly showed cause against the charges made against them as indicated in the order passed on 25-7-1974. The learned Magistrate clearly, therefore, came to know the plea of the opposite parties on 24-8-74 when the show cause petition was filed. The opposite parties did not accept the charges. They challenged the same. Now as soon as the accused challenges the allegations made against him, and there is no case of pleading guilty to the charges, the trial begins. If there is plea of guilty by the accused and the learned Magistrate is satisfied about it, there is no question of trial. So also in a proceeding under Section 107 of the Code, when the opposite party challenges the allegations, the inquiry begins and when in the present case before us the opposite parties appeared and submitted a show cause petition, there appeared the occasion for the Magistrate to proceed to enquire into the truth of the allegations against the opposite party and for that purpose the Magistrate was to consider the petition and the show cause and if necessary to take such further evidence as would be thought necessary by him. Section 116 should be read along with Section 254 of the Code From the side of the petitioners before us, it has been contended that the commencement of the enquiry begins from the appearance of the opposite party. Reading Sub-section (1) and (6) of Section 116 together along with Sections 251, 252, 253 and 254, there can be no doubt whatsoever that with mere appearance of the second party in a proceeding under Section 107 and of the accused in a summons case the inquiry or the trial as the case may be does not begin. In the proceeding under Section 107, it depends upon the nature of show cause submitted by the opposite party and in the summons case it depends upon the plea of the accused. In a proceeding under Section 107 when the opposite parties submit to the charges levelled against them, there may not be any necessity for the Magistrate to take further evidence but certainly for the decision he has got to consider and apply his mind to the plea of the opposite party. Only upon considering the plea of the opposite party the Magistrate will be able to see whether he is to proceed to inquire by taking further evidence. In our view, therefore, with mere appearance of the opposite party in a proceeding under Section 107 of the Cr. P.C. inquiry does not begin. It begins after the opposite party gives out his plea or refuses to express any plea. In such cases the occasion arises for the Magistrate to consider whether he should proceed to inquire. The word 'proceed' appearing under Sub-section (1) of Section 116 indicates, in our view, that with mere appearance of the opposite party inquiry does not commence. Moreover, there is the word 'commencement' in Sub-section (8) of Section 116 of the Code. This word again implies that after the starting of a proceeding under Section 107. there is a stage when inquiry commences. There may be cases where the opposite party may appear and pray for time for showing cause against the charges on reasonable and bona fide grounds. Again there may be occasions, as in the present case, when opposite party appears in pursuance of a summons issued under Section 113 and along with the appearance files a show cause petition challenging the allegations and the Magistrate may, upon consideration of the cause shown, think it necessary to start inquiry. In our view, the inquiry starts in a proceeding under Section 107 of the Cr. P.C. as soon as the Magistrate thinks it necessary to ascertain the truth of the information upon which he has already taken action either on the basis of the plea of the opposite party or the cause shown or otherwise. In the present case, therefore, the inquiry commenced as soon as the opposite party challenged the allegations made by the first party. In the instant case the enquiry was pending before the learned Magistrate for more than a year, after the showing of cause by the opposite parties and admittedly again there is no special reason recorded by the Magistrate in writing for continuance of the inquiry beyond a period of six months.

6. Our attention has been brought to several decisions as to when commencement of the inquiry starts. In the case of Dwarka Nath Ram Chandra Angachekar v. State of Maharashtra reported in 1977 Cri LJ 120 (Bom) it was held as follows (at pp. 123-124):

Having regard to the provisions of Section 112 and Sub-section (1) of Section 116, and the fact that a summons procedure is prescribed for an enquiry by Sub-section (2) of Section 116 it would appear that in the case of a person who is present in Court when the order under Section 111 is passed, the said order must be read over to him and the substance thereof explained to him if so desired by him, on that very day and, therefore, the enquiry in his case shall be deemed to have commenced on that very day irrespective of the fact whether the Magistrate records his plea or not In the case of an opponent who is not present in court when the order made under S. III is passed, but whose presence is secured by a summons or a warrant, as provided under Section 113, it would appear that since there is nothing to prevent the Magistrate from reading the accusations to him and recording his plea on the very day when he so appears or is brought before the Magistrate and on the other hand there is a legislative mandate to proceed to inquire into the truth of the accusation on the happening of such an event it would appear that irrespective of the fact whether the Magistrate records the plea of the opponent or not, and irrespective of the fact whether the Magistrate proceeds with the inquiry or not, the inquiry in the proceedings must be deemed to have commenced against such a person on the very day when his presence is thus secured on the day fixed by the Court,' In view of our discussions above about the relevant provisions of the Code of Criminal Procedure, with great respect to the learned Judges, we cannot agree with them to the view taken in that decision by a Division Bench of the Bombay High Court. We have also noticed a Single Bench decision of our Court in the case of Prafulla Kumar Dutt v. Ajit Kumar Datta reported in 1978 Cri LJ 316 (Cal). In that case the learned Judge has held that when in the summons case the trial starts when the accused appears before the Magistrate, there is no reason to hold why the enquiry envisaged in Section 116(1) should commence when the evidence on record was started by the learned Magistrate as submitted by the learned Advocate for the State and the opposite parties. We have also discussed when trial starts in a summons case and we cannot agree with the view taken by the learned Judge in the case of Prafulla Kumar Dutt that with the appearance of the accused in a summons case the trial begins. As we have indicated, the question of trial arises only after the plea of the accused and not earlier. It has been held by the learned Judge as follows (at p. 317) : 'In the proceeding under Section 107 no particular form of enquiry is provided. It is only that there are some materials before Magistrate from which he feels satisfied that immediate steps are necessary. Consideration of police paper or hearing Advocate and/or application made by the party concerned is a stage in the enquiry even before the evidence is recorded.

The inquiry as we have already discussed will be as nearly as possible as that of a trial in a summons case as described in Chapter XX of the Code of Criminal Procedure, The police papers or other information relied upon by the learned Magistrate before issuing an order to show cause why the opposite party should not be ordered to execute bond for keeping peace or the application made by the first party for starting a proceeding would be no part of the inquiry referred to in Sub-section (1) of Section 116 of the Cr. P.C. We do not accept as correct the view and the decision of the learned Judge in the case of Prafulla Kumar Dutt that the appearance of the second party after the receipt of the notice of the proceeding without showing cause is the starting point of the inquiry referred to in Section 116(2) of the Code. We have also noticed the decision of a Division Bench of the Orissa High Court in the case of Uchhabajena v. Kunjabehari Rautray appearing in 1978 Cri LJ 134. In that case the question arose as to when the inquiry would commence -- whether with the appearance of the opposite party before the Magistrate or with the taking of evidence. There was a reference to the observation of the Supreme Court made in the case of Madhu Limaye AIR 1971 SC 2481 (2485) : (1971 Cri LJ 1715 (1719). The Orissa High Court held (at p. 126 of 1978 Cri LJ):..We are inclined to agree that the inquiry referred to in Sub-section (6) is with reference to the stage when the Magistrate, after both parties appear before him, proceeds to inquire with reference to an evidence as to whether the delinquencies alleged are established

In connexion with execution of bond referred to in Section 116 of the Cr. P.C. the Supreme Court in Madhu Limaye's case held (at p. 1719 of 1971 Cri LJ);

The Magistrate could only ask for an interim bond if he could not complete the enquiry and 'during the completion of the enquiry' postulates a commencement of the inquiry which means commencing of a trial according to the summons procedure.

At a subsequent stage the Supreme Court held with reference to the Sub-section (3) of Section 116 about the execution of a bond as follows:

The reason why the interim bond was without jurisdiction is that no such bond can be called upon to be executed unless there is commencement of the inquiry which means commencement of the trial according to summons procedure in which same evidence has been taken.

It is to be noted that in Sub-section (8) of Section 116 the opening words are 'After the commencement and before the completion of the inquiry....

7. About the commencement of trial of a sessions case and the meaning of the word 'trial', questions arose in Tushar Kanti Banerji v. State of West Bengal (1977) 4 Cal HC (N) 498 decided by a Division Bench of this Court. It has been held in that case that until the accused pleads guilty to the charge framed or claims to be tried, no issue between him and the prosecution has been joined and no trial can start. Regarding the meaning of the word trial' several cases were considered. In Piare Dusadh v. Emperor AIR 1944 FC 1 : (1944) 45 Cri LJ 413 the then Federal Court of ours confirmed that the meaning of the word 'trial' must largely depend on the context and the scheme of the enactment in which it occurs. When the inquiry referred to in Section 116 of the Cr. P.C. is to be in the nature of trial in summons cases, we must hold, as has been discussed by us hereinbefore, that it commences as soon as the opposite party in proceeding under Section 107 challenges the allegations made against him or refuses to admit the same or submits a show cause petition against the allegation or the Magistrate otherwise has reason to proceed or proceeds or decides to ascertain the truth of the allegation made against the opposite party by taking evidence or otherwise.

8. In the present case the petitioners filed objection to the allegation by showing cause on 24-8-1974 and as such the inquiry commenced from that day. The records show that the learned Magistrate continued the proceeding beyond the period of six months from 24-8-1974 without recording any reason for the continuance of inquiry and proceedings. Consequently the proceedings against the opposite party stood ipso facto terminated and the opposite party became discharged from the bail bonds as soon as the period of six months from 24-8-1974 was over according to Sub-section (6) of Section 116 of the Cr. P.C. Further continuance of the proceedings was clearly illegal and without jurisdiction.

9. It appears that on 81-7-1975, the first party filed a petition alleging that the opposite parties were threatening them and that there was still apprehension of breach of peace. This step was taken, no doubt, by the first party to get an order from the Magistrate for continuance of the inquiry beyond six months but that attempt was of no avail as by that time the proceedings had stood terminated and the order of the learned Magistrate to call for a report passed on a subsequent date or order on the opposite party to show cause why their bail should not be cancelled passed on 31-7-75 cannot, in any way, validate the continuance of any illegal proceedings or revive the proceedings already terminated under Section 116(6) of the Cr. P.C. 1973.

10. In view of our findings above, we quash the proceedings against the opposite party now illegally continued. The opposite party stand discharged from their bail bonds. The Rule is thus made absolute.

Monoj Kumar Mukherjee, J.

11. I agree with the reasonings and the Order passed by my Lord, but I wish to add a few words of my own in support thereof.

12. A plain reading of Section 116(6) of the Cr. P.C. makes it indubitably clear that immediately on the expiry of six months from the date of commencement, the enquiry under Section 116(1) stands statutorily terminated. Such being the legislative mandate no formal order of the Court is required for terminating the proceeding. Consequently therefore, on the expiry of the period of six months, the Magistrate becomes functus officio disentitling him to pass any order there-alter for continuance of the proceeding for special reasons. In other words, direction for continuance of proceeding as envisaged under Sub-section (6) must have to be issued before the expiry of the period of six months.


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