Decided on September 18,1979

STATE OF BIHAR Respondents


M.P.Varma, J. - (1.)This is an application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). Prayer has been made that order dated 5.7.1978, passed by Subdlvisional Magistrate. Jehanabad be set aside. It is, therefore, relevant to quote here the impugned order which runs as follows ;
"10/2/78 Heard the learned lawyer for both the parties. A show-cause notice has been issued to the 2nd party as to why they should 5/7/78 not be asked to execute interim bond till the pendency of the proceeding. The learned lawyer for the 2nd party has argued that there is no fresh material on the record to warrant the execution of interim bond. In the second place an interim bond can only be executed once the evidence has been started. But it has been done in this proceeding. In the third place, the party has argued that it has already given in writing that they have nothing to do with the land under question. The 1st party has argued that the police report dated 8.11.77 has sufficient grounds on which an interim bond should be taken. He has cited that on 14.11.77 there was fresh incidence because of which a complaint case has been filed under sections 323/340/ 394/34 of I. P. C. on 25.12.77 they looted away 125 bundles of harvested crops which has been guarded by a police constable. All facts considered it stands out that on 14.11.77 the member of the 2nd party has physically assaulted Bachan Ojha of the 1st party. The Sub-divisional Judicial Magistrate has applied his mind and has taken cognizance of the case which has been transferred to the Court of Sri G. N. Singh, Judicial Magistrate, Jehanabad for trial. The complaint of the police constable Gulab Khan that 125 bundles of crops were looted away from his possession is a sufficient pointer to the fact that an overtact was committed. In light of such overtact from the members of the 2nd party, I am satisfied that it is necessary to bind down the O. Ps'. in the interest of maintenance of peace and law and order. The O. Ps. are ordered to execute interim bonds for a sum of Rs. 2,000/- (Rupees two thousand) each to maintain peace, law and order. The proceeding will continue till the final conclusion. The proceeding is transferred to the Court of Sri P. K. Dass, Executive Magistrate, Jehanabad for disposal. It will be put up on 20.7.78 in the said Court."

(2.)The impugned order as stated above has got two parts. The learned Magistrate by this order has asked the petitioners to execute interim bonds under section 116 (3) of the Code and by the same order he appears to have extended the date of proceeding which is said to have terminated earlier because of the afflux of time. Argument has been made on behalf of the petitioners that they appeared in the court below on 20.11.1977 and according to learned counsel, ths inquiry commenced on the date of petitioners appeared in the court below. It has been urged that the Subdivisional Magistrate will direct for execution of interim bonds on materials placed before him only after the commencement of the inquiry and not before that. The counsel for the State, on the other hand, has contended that the inquiry will be deemed to have commenced from the date the Magisteate applies his mind to the show cause filed by the petitioners. Be that as it may, it is not the issue raised at this stage for me to decide. It will be noticed that the order asking the petitioners to execute interim bonds has been challenged on the ground that the Subdivisional Magistrate had no jurisdiction to pass the order on 5,7.1978, as the proceeding on this date had lapsed due to expiry of six months. It has been pointed out that the proceeding will be deemed to have automatically terminated under clause (6) of section 116 of the Code. Accepting the contention of the learned counsel that in case if the proceeding terminates, the subsequent order asking for execution of the interim bonds must be deemed to be without jurisdiction, but before I record my finding on this issue, it will be relevant to mention here that if the petitioners are aggrieved by the aforesaid order, passed by the Subdivisional Magistrate extending the period of the proceeding beyond the prescribed limit as envisaged under clause (6) of section 116 of the Code, they may, if so advised, file an application before the Sessions Judge for the vacation of the direction or order passed by the Subdivisional Magistrate. It has, however, been contended in the instant case that the learned Magistrate did not record any special reason for extending the period of proceeding. But in any way, as pointed out above, the remedy lies before the Sessions Judge before whom the petitioners can very well agitate the issue.
(3.)Therefore, in my opinion, the application filed under section 482 of the Code before this Court is not competent and it is dismissed as such. Application dismissed.

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