M. L. JOSHI (Actg.) C. J. - (1.) THIS revision petition is directed against the judgment and order passed by the learned Sessions Judge, Udaipur, dated January 21, 1976, whereby he upheld the order of the learned Executive Magistrate, Udaipur, dated October 23, 1975, who permitted the continuance of the proceedings under sec. 110 of the Code of Criminal Procedure (hereinafter to be referred to as "the Act"), even after the expiry of six 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 tarnsferred to the court of the Executive Magistrate, Udaipur. The same was registered by the learned City Magistrate, Udaipur, who 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 of the case, no substantial proceedings took place in the court of the Executive Magistrate. On October 16, 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. 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. 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 date 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. Two points call for my consideration in this revision. Firstly, from which date, six months' time shall be computed for the purpose of sub-sec. (6) of section 116 of the Act; and secondly, whether it is open to the Magistrate to extend the time after the expiry of the period of six months from the date of the commencement of the proceedings. Before appreciating the aforementioned two contentions raised before me, it will be profitable to notice the relevant provisions, which have bearing on the contentions raised before me. Section 110 of the Act relates to the security for good behaviour from habitual offenders. This section provides that when a Judicial Magistrate of the first class receives information that there is, within his local limits, a person who 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 may think fit. Section 100 of the Act envisages that when a Magistrate acting under section 110 of the Act deem it 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 be 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 compliance with, or in execution of, a summon 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-sections (2), (6) and (7) of section 116 of the Act deserve to be specially noticed as they have got great bearing on the controvarsy raised before me. Under sub-section (2) of section 116 of the Act, inquiry under sec. 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 sec. 116 of the Act is important for my purpose. Sub-sec. (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, 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. " From the perusal of sub-section (6), it will appear that it contains legislative mandate that inquiry under the sections shall be completed within a period of six months from the date of its commencement. There is further legislative mandate that if such inquiry is not so completed, the same shall stand termina-ted unless, for special reasons to be recorded in writing, the Magistrate other-wise directs.
(3.) IN the background of legislative provision, 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 sec. 116 of the Act should be held to have commenced. If we look into the provisions of sections 112 and 116 (1) and (2) of the Act, it will be evident that the procedure prescribed for such inquiry is just akin to the procedure for a summ-ons 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 proce-edings in the inquiry shall be deemed to commence on the day when the accu-sed puts in his appearance before the Court irrespective 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 him or is brought before him. There is, therefore, every valid reason to hold that the correct date of computation of six months shall be the date on which the accused appears before the court or is brought before the Court. 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 well before the expiry of six months. The period of six months prescribed for completing the inquiry, in my opinion, is a mend-atory direction of the legislature. Once six months have 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 deed 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. A similar point came to be considered in Matheu vs. State of Kerala (1) In that case, it was held that when the inquiry is not completed within the prescribed peried of six months and the proceedings stand terminated on the expiry of the period of six months as there is a cessation 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 vs. State of Moryana (2) where also it was held that the extension of period of inquiry could only be ordered before the expiry of six months and not after its expiry. In Srafulla Kr. Dutt vs. Ajit Kr Datta (3) 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 Angachhker vs. State of Maharashtra (4)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 sec. 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. ;