MANU/MH/0385/1976

Equivalent Citation: 1977C riLJ120

IN THE HIGH COURT OF BOMBAY

Criminal Appln. No. 1950 of 1976
Decided On: 28.07.1976
Appellants: Dwarkanath Ramchandra Angachekar and Ors.
Vs.
Respondent: The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
Balkrishna Narhar Deshmukh and N.B. Naik, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: C.J. Sabnis
For Respondents/Defendant: H.A. Solkar, Public Prosecutor
JUDGMENT
N.B. Naik, J.
1 . This petition raises a rather important question as to when an inquiry in a
proceeding under Sec. 116 of the Code of Criminal Procedure, 1973, should be held
to have commenced. The question arises under the following circumstances; report
under Section 110 of the Code of Criminal Procedure 1973, was made by the police
against the petitioners to the Judicial Magistrate, Vengurla, on September 3, 1975.
On that very day the learned Magistrate passed an order under Section 111 of the
Code of Criminal Procedure below the said report of the police which was numbered
as Chapter Case No. 2 of 1975. As the opponents-present petitioners, were not
present, a summons was issued to them under Section 113 of the Code of Criminal
Procedure to appear in Court on October 2, 1975. On that date the opponents did
appear along with their advocate in obedience to the summons. As is clear from the
roznama of that date the order under Section 111, which was passed by the learned
Magistrate being read over and explained to them they were also supplied with a
copy of that order. The petitioners also executed bail bonds as directed by the
Magistrate. But then the learned Magistrate without proceeding with the inquiry on
that very day adjourned the case to November 15, 1975 for recording their plea. The
case was thereafter adjourned by the Magistrate on his own from time to time till
January 15, 1976. It was on that last adjourned date that the plea of the petitioners
was recorded and the case was adjourned to January 30, 1976 for recording
evidence. The roznama does not say what happened on that day. It appears that on
that day also the case was not taken up for hearing but only witness summonses
were issued and the case was posted for hearing on February 10, 1976. Once again
on that day the case was adjourned on the report of the Prosecutor stating, inter alia,
that the case may be adjourned as one of the witnesses wanted to engage a private
pleader. The matter was thereafter adjourned from time to time till April 7, 1976 and
it was on April 7, 1976 that the petitioners made an application (Ex. 10) stating, inter
alia, that since on the facts of this case the enquiry had already commenced on
October 2, 1975 and it was not completed within a period of six months from that
date and the Magistrate had also not given any special reasons for not completing the
enquiry within the said period of six months, the proceedings stood terminated on
April 2, 1976 under sub-section (8) of Section 116 of the Code of Criminal Procedure,

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 1973.
2 . The learned Magistrate observed that since according to the order sheet it
appeared that the allegations in the report giving rise to the proceedings were
explained to the opponents and their plea was recorded on January 15, 1976 and the
next date was fixed for hearing on February 10, 1976 the date of commencement of
the inquiry in this case would be February 10, 1976 and in that view he held that six
months had not yet elapsed from the said date of commencement of the inquiry.
Consistently with that view he rejected the petitioners' application and directed that
the case shall be proceeded with on the next adjourned date.
3. It is the propriety of the said order which is challenged by this petition under Art.
227 of the Constitution of India.
4. The provisions about security for keeping the peace and for good behavior are to
be found in Chapter VIII of the Code of Criminal Procedure. 1973.
5. Section 106 deals with cases of security for keeping the peace on conviction,
6. Section 107 deals with the security for keeping the peace in other cases.
7 . Section 108 deals with security for good behavior from persons disseminating
seditious matters.
8. Section 109 deals with security for good behavior from suspected persons.
9. Section 110 deals with security for good behavior from habitual offenders.
10. Section 111 provides that--
"When a Magistrate acting under Section 107, Section 108, Section 109 or
Section 110, deems it necessary to require any person to show cause under
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."
Therefore, this section deals with the form of the order to be passed by the
Magistrate.
11. Section 112 provides 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."
12. Section 113 deals with the cases of opponents who are not present in Court. It
provides 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."
13. There is a further proviso which provides that,
"Whenever it appears to such Magistrate, upon the report of a police officer
or upon other information the substance of which report or information shall

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 be recorded by the Magistrate, that there is reason to fear the commission of
a breach of the peace and that such breach of the peace cannot be prevented
otherwise than by the immediate arrest of such person, the Magistrate may at
any time issue a warrant for his arrest."
14. Section 114 provides that--
"Every summons or warrant issued under Section 113 shall be accompanied
by a copy of the order made under Section 111, and such copy shall be
delivered by the officer serving or executing such summons or warrant to the
person served with, or arrested under, the same."
15. Sub-section (1) of Section 116 provides that--
"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."
(emphasis supplied).
16. Sub-section (2) of Section 116, provides that--
"Such enquiry shall be made, as nearly as may be practicable, in the manner
hereinafter prescribed for conducting trial and recording evidence in
summons cases."
17. Then follows sub-section (3) which provides--
"After the commencement, and before the completion, of the inquiry under
sub-section (1), the Magistrate, if he considers that immediate measures are
necessary for the prevention of a breach of the peace or disturbance of the
public tranquility or the commission of any offence or for the public safety,
may, for reasons to be recorded in writing, direct the person in respect of
whom the order under Section 111 has been made to execute a bond, with or
without sureties for keeping the peace or maintaining good behavior until the
conclusion of the inquiry, and may detain him in custody until such bond is
executed or, in default of execution, until the inquiry is concluded."
18. Then follows sub-section (6) on which reliance is placed and which is to this
effect:
"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,"
19. Sub-section (7) of Section 116 provides that--

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 "Where any direction is made under sub-section (6) permitting the
continuance of proceedings, the Sessions Judge may, on an application made
to him by the aggrieved party, vacate such direction if he is satisfied that it
was not based on any special reason or was perverse."
20. It would appear from the above provisions that the Legislature was anxious to
see to it that normally the proceedings must be completed within a period of six
months from the date of its commencement and that it is only in exceptional cases,
where special reasons exist that they may be allowed to prolong beyond a period of
six months from the date of commencement. The Legislature therefore provided that
an enquiry under Section 116 shall stand statutorily terminated on the expiry of the
period of six months from the date of its commencement and that if at all it is to be
completed it must be completed before the said period. In the event of its being
required to be prolonged the Legislature provided that the Magistrate should record
special reasons in writing for directing that the proceedings shall not staid terminated
but shall be continued beyond a period of six months provided by sub-section (6).
The Legislature did not stop with that. The order of the Magistrate directing the
continuance of the proceedings beyond the period of six months can be challenged
by an aggrieved party before the Sessions Judge. In other words a direction under
sub-section (6), cannot be passed lightly or as a matter of course and the Magistrate
who passes the order ought to know that the special reasons given by him are liable
to be reviewed by the Sessions Judge judicially. That shows how the Legislature has
taken particular care to see that the chapter proceedings should not be prolonged
beyond a period of six months except for genuine and special reasons. It would,
therefore, become necessary to find out in each case the precise date when a
proceeding under Section 116 is said to have commenced. We have already referred
to the relevant provisions in Chapter VIII dealing with security for keeping the peace
and for good behaviour. The Magistrate immediately on receipt of information under
any of these sections viz. Section 107, Section 108, Section 109 or Section 110 is
required to make an order in writing under Section 111 setting forth the substance of
the information received, the amount of the bond to be executed and the term for
which it is to be in force and the number, character and class of sureties, if any,
required.
21. Then comes the stage of apprising the contents of the said order to the party
concerned. In cases where the person in respect of whom such order is made is
present in Court, when the order Tinder Section 111, is passed, the Magistrate is
required to read over the said order to the person concerned under Section 112 and
also to explain the substance thereof if so desired by that party. In most of the cases,
the opponents are not present when the order is passed by the Magistrate under
Section 111 and in such cases, it is provided by Section 113 that the Magistrate
should issue a summons requiring the concerned person to appear. There may be
cases when the person against whom an order is passed is in custody in which case a
warrant directing the officer in whose custody he is has to be issued. There may be
also cases where it is feared that the person against whom an order is passed is such
a dangerous person as to commit breach of the peace, and that breach of the peace
cannot be prevented otherwise than by the immediate arrest of such person, in which
case the Magistrate has to issue a warrant for his arrest as provided in Section 113.
In all these cases where a summons has been issued or a warrant has been issued or
a warrant for arrest has been issued as provided in Section 113, as provided in
Section 114 the summons or warrant has to be accompanied by a copy of the order
made under Section 111, and such copy has to be delivered by the officer serving or
executing such summons or warrant to the person served with, or arrested under, the
same.

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 22. The next stage after either reading the order under Section 112 to the opponent
who is present in Court when the order is passed under Section 111 or after the
person against whom the order under Section 111 is passed, and to whom a
summons or warrant has been issued under Section 113 appears or is brought before
the Court, as provided in sub-section (1) of Section 116, 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.
23. Sub-section (2) of Section 116 provides that
"such enquiry shall be made, as nearly as may be practicable, in the manner
hereinafter prescribed for conducting trial and recording evidence in
summons cases."
24. That takes us to Chapter XX which deals with the trial of summons cases by
Magistrate. Section 251 in this Chapter provides that, when in a summons case the
accused appears or is brought before the Magistrate, the particulars of the offence of
which he is accused shall be stated to him and he shall be asked whether he pleads
guilty or has any defence to make; Section 252 provides for conviction on the plea of
guilty in the discretion of the Magistrate. The procedure in a case where the accused
is not convicted under Section 252 or Section 253 is provided in Section 254. That
section provides that,
"the Magistrate shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the prosecution."
In other words all that is to be done under sub-section (2) of Section 116 is to read
the accusations and to see if the opponent admits the accusations or wants to show
cause.
25. Having regard to the provisions of Section 112 and sub-section (1) of Section
116, and the fact that a sum mons 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 inquiry 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 Section 111 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.
26. In the instant case, as is clear from the roznama undoubtedly it was on October
2, 1975 that the opponents-petitioners having appeared before the Court in
obedience to the summonses issued under Section 113, it was on that very day that
the order under Section 111 which was passed against them, on September 3, 1975
was read over to them and they being supplied with copies of that order, the case
was adjourned to a further date for recording their plea and they were released on

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 their executing bail bonds. Judged from any point of view therefore, it would appear
that in the instant case both in law and on the facts of this case, the inquiry under
Section 116 of the Code of Criminal Procedure. 1973, commenced on October 2,
1975 when the petitioners appeared before the Court under sub-section (1) of
Section 116, in response to the summons issued under Section 113, and the order
under Section 111, was explained to them. That being the position, since more than
six months had passed after the date of the commencement and the proceeding was
not completed and since admittedly no order directing the continuance of the
proceedings beyond the period of six months has been passed by the Magistrate
under sub-section (6) of Section 116, it would appear that in view of the mandatory
provisions of sub-section (6) of Section 116, the proceedings stood terminated on
April 2, 1976. In the result, the petition is allowed. The order passed by the
Magistrate is quashed and the bail bonds of the petitioners are cancelled. Rule is
made absolute.
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