HARUNI DAS AND ORS. Vs. THE STATE OF BIHAR AND LADOO LAL DAS

JUDGEMENT

(1.) On the 2nd July, 1974, a petition was filed by opposite party no. 2 for starting a proceeding under Sec. 107 of the Code of Criminal Procedure (hereinafter referred to as the Code) against the petitioners, and the Sub -divisional Magistrate, Begusarai, had called for a police report. While the police report was yet to come, on the 30th September, 1974, opposite party no. 2 filed a petition for taking action against the petitioners under Sec. 116(3) of the Code. The Sub -divisional Magistrate thereupon issued notices to the petitioners to show cause why they should not be ordered to execute bonds for Rs. 1,000/ - each with two sureties of the like amount, for maintaining peace for a period of one year On the same date, another notice was issued to the petitioners, in similar terms, under the provisions of Sec. 116(3) of the Code. The petitioners, in response to the notices issued to them to show cause, appeared in court on the 11th October, 1974, and prayed for time to file their show cause and on the 11th November, 1974, a show cause was filed on behalf of the petitioners. It appears that the proceeding remained pending thereafter without any further progress, as it was adjourned from date to date. On the 21st June, 1975, opposite party no. 2 was directed to bring witnesses on the 10th July, 1975, but no witness was produced on that date and the case was again adjourned to another date. On the 4th September, 1975, a petition was filed on behalf of the petitioners to the effect that under the provisions of Sec. 116(6) of the Code the proceeding had automatically stood terminated after six months of the commencement of the proceeding and hence the court had become functus officio. A similar petition was again filed on the 16th September, 1975, which was rejected by the learned Magistrate by his impugned order dated the 17th November, 1975.

(2.) The learned lawyer for the petitioners has submitted that since the commencement of the proceeding more than six months had elapsed when a petition was filed on their behalf that the proceeding had automatically stood terminated under the provisions of Sec. 116 (6) of the Code, but the learned Magistrate had tried to justify that the proceeding should be contained as there was apprehension of breach of the peace still in existence and that according to him the inquiry had commenced actually when he tried to enquire into the truth of the allegations on taking evidence. According to him, since the first witness was examined on the 4th September, 1975, there was sufficient time for the proceeding to continue.

(3.) The learned lawyer on behalf of the petitioners has relied on a decision of this Court in the case of (1) S.K. Roy V. The State of Bihar (1975 BBCJ 879). That was a case very similar to the present one. In that case, on the basis of a police report the Sub -divisional Magistrate, Dhanbad, had drawn up a proceeding under Sec. 107 of the Code against the petitioner by his order dated the 16th September, 1974 On receipt of the notice relating to that proceeding, the petitioner appeared before the Magistrate on the 21st September, 1974, and subsequently showed cause. It appears that later the police submitted another report for taking action against the petitioner under Sec. 116(3) of the Code and the petitioner was asked to show cause why he should not be directed to execute interim bond. Subsequently, an order was passed directing the petitioner in that case to execute an ad interim bond. It was urged on behalf of the petitioner in that case that the order of the learned Magistrate directing the petitioner to execute ad interim bond was without jurisdiction inasmuch as the entire proceeding stood terminated by virtue of the provisions of Sec. 116(6) of the Code. It was held in that case that the Magistrate draw up the proceeding on the 16th September. 1974, and the petitioner appeared before him on the 21st September, 1974, in response to the notice issued against him in regard to that proceeding.