Smt. Binapani Bora and Others vs Shri Narendra Bora

B.L. Hansaria, J.—What is required to be determined in this proceeding is as (sic)when an enquiry under Station 116 of the Code of Criminal Procedure can be said to have commenced. The importance of determining the date of commencement lies in the foot that Sub-section (6), if an enquiry it not completed within a (sic) of six months from the date of its commencement, it terminated, unless for special reasons to be recorded in (sic) the Magistrate otherwise directs. As per the proviso, sure any person has been kept la detention pending enquiry, (sic) period cannot also be extended beyond six months. The (sic) of determining the point of commencement of the enquiry to relevant when order for interim bond is paused u/s (3).

There has been a difference of opinion among the different High Courts of the country on the question as to when enquiry can be said to have commenced. The majority of High Courts which includes those of Bombay, Patna, Raja-Delhi and Madhya Pradesh have taken the view that of appearance of the person sought to be proceeded against the starting point of the enquiry. The Calcutta view is that enquiry commences when the opposite party challenges the Sections made against him or refuses to admit the same, or a show cause against his accusation. As per the (sic) High Court, however, the enquiry commences when the (sic)strate proceeds to ascertain the truth of the allegations by (sic)ition of a Judicial mind, that is, when the Magistrate in a legal way to put the allegations to test for find-(sic) whether they are factually correct or not.

The Supreme Court had occasion in two cases in the main to interpret some provisions which round place in the corresponding Section 117 of the old Code, they are Madhu limaye v. Ved Murti. AIR 1971 SC 2481 and Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, The Third case Govinder Singh Verma and Another Vs. Mrs. Bachubhai T. Pestonji and Another, had dealt with a little different point. The two Madhu Limaye cases are relatable to orders for interim bond, and it is for this reason that all, that has been laid down in those opinions have not been held by all the High Courts to be applicable to decide the controversy at hand in is much us to order execution of interim bond commencement of the enquiry alone is not sufficient, because for this purpose the Magistrate has to be further satisfied that execution of the same is necessary for the prevention of the breach of the peace or disturbance of the public tranquillity, the commission of any offence or for the pubic safety, Before finding out an to what was laid down by the Supreme Court in those cases, it may be ''pointed out that the phraseology of old Section 117(3) was a little different from Section 116(3), Under the old section, interim bond could be ordered "pending the completion of the enquiry" under Sub-section (1), The words now are "After the commencement, and before completion of the enquiry under Sub-section (1)". The change, however, seems to be a more change in the terminology without bringing any real difference in the operation of the two Sub-sections. This would be clear from the observations in first of the two Madhu Limaye''s cases itself wherein it has been stated in paragraph 16 that the expression "during the completion of the enquiry" postulates a commencement of the enquiry. Thus, even under the old Sub-section it was required to be found out as to when did the enquiry commence, it was stated in the aforesaid paragraph itself, that commencement of the enquiry mean''s "commencement of a trial according to the summons procedure". Reference to the summons procedure was made because under Sub-section (2) of both the sections such an enquiry has to be made as nearly as may be practicable, in the manner pre scribed for conducting trial and recording evidence in summons cases. One of the reasons for difference of opinion among the different High Courts has been as to when can a trial in summons case be said to have commenced.

The High Courts which have accepted that the enquiry commences from the date of appearance have really held so because, Wording to them, all summons trial commence with the reading but of the particulars of the offence to the accused when he appears or is brought before the Magistrate whereupon, u/s 251, the Court is required to explain the particulars of the offence. u/s 112 of the Code also, the Court is to read over and explain the substance of the order to the person if he is present in the Court: If he is not so present, a summon or warrant may be issued, and evidently when the person appears or is brought, he has to be explained the substance of the order which has been passed u/s 111. The latest decision accepting this view is that of the Delhi High Court in J.C. Mehta Vs. The State and Another, As it has made reference to a Full Bench decision of the Patna High Court. It would be appropriate to know the reasons given by the Full Bench in Sitaram Singh and Others, etc. Vs. State of Bihar and Another, etc., In Kill case the majority held that the enquiry commences with date the opposite party appears in the Court, whereas according to the minority some further step has to be taken to enquire into the truth of the opinion before enquiry can be said to have commenced. The majority have taken the aforesaid view because it has, been held the decisions noted by it that in a, summons case, the trial begins when the accused is brought before the Magistrate. This what was stated in this regard, in paragraph 5:

It admits of no doubt that the moment the accused has appeared and the substance of the accusation is explained to him, a summons trial has commenced. The point of commencement, of a proceeding u/s 107 of the Code, must, therefore, be determined in the same terms. Section 112 provides for the reading over or explaining the substance of the accusation and the satisfaction of the Magistrate. Section 112 thus is akin in content to that of Section 251. If a summons trial commences with the reading out the particulars of the offence to the accused. Which must be held to be so, a proceeding u/s 107 also must necessarily be deemed to have commenced with the reading over the substances of the information received.

Reference was then made to Madhu Limaye AIR 1971 SC 2481. The majority stated that on the special facts of that case their Lordships had observed that it was not given to the Magistrate to postpone the case and hear nobody and yet ask the ''Petitioner to furnish a bond for good conduct. But the ratio of that case was stated to be that interim bond can be asked of enquiry cannot be completed and the expression "completion of enquiry" meant enquiry according to the procedure prescribed for summons trial, that is, such enquiry would commence when a summons trial can be said to have commenced, which is the date the accused appears or is brought before the Court and substance of the accusation is explained to him.

This decision was followed, as already noted, in J.C. Mehta (supra). The learned Single Judge of the Delhi High Court further disagreed with the view expressed by the Orissa High Court in Sona Khan and Others Vs. State of Orissa, which is also Full Bench decision. That case examined this aspect in the context of an order to furnish an interim bond. Reference was first made to the two Medhu limaye''s cases. It was noted that in the first of these decisions mere aspearance was not held to be sufficient. In the second of these decisions, the Court took note of the difference of opinion in the High Courts. It was stated that one the of the views was that action on interim bond could be taken as soon as the person appeared, because then the Magistrate can be said to have entered upon the enquiry. The other view was that the Magistrate must proceed to enquire into the truth of the information and only after prima facie satisfying himself about the truth and after recording the reasons in writing, an interim bond could be asked for. The Supreme Court approved of the second view. This approval had, of count, something do with the fact that as the execution of interim bond involves the liberty of the person, a strict construction on the powers, of the Magistrate was felt necessary. It was, therefore, Mated that some enquiry has to be made before the bond can be ordered. The Full Bench then referred to Govinder Singh (supra) wherein order for interim bond had been passed after the affected person had been, examined and also the police Sub-Inspector.

It is, therefore, clear that so far as excerise of power under Sub-section (3) for ordering interim bond is concerned, the view expressed by the Orissa High Court in Sons Khari is impecable. Indeed, in Anantray Lalji Pandya Vs. The State of Gujarat, a learned Judge of this Court has taken the same view, Shri Barua uppearing for the Petitioner has contended that what lias been held by the apex Court in the foresaid decisions relating to interim bond, cannot be applied whole-hog to determine the question of commencement of the enquiry inasmuch as under Sub-section (3) commencement of enquiry alone is not enough to pass under order under that Sub-section. tuough enquiry must commence even for ordering interim bond, Sub-section (3) further requires that such an order is deemed accessary for prevention of breach of peace etc. Now, to come to this satisfaction there must be some materials before the Court, Mere passing of an order u/s 111 cannot be sufficient in this regard, because that order is passed on hearsay whereas the enquiry contemplated u/s 116 is to ascertain the truth, us pointed out in Madhu Limaye case (AIR 1971 SC 2485). The question of liberty of a person which is involved when lie is risked for to execute an interior bond, is not pre-sent states the Counsel, when the question as to then as enquiry commenced is being examined. But. then, as pointed out in the aforesaid case of Madhu Limaye, the enquiry for the purpose of interim bond cannot be described "as an enquiry within an enquiry". Further, the meaning which has to be ascribed to this expression for the purpose of Sub-section (3), has also to be accepted while interpreting Sub-section (6). It is worth pointing out that in Chandreswar (supra) the question examined this Court, though it also dealt with the case of interim bond, was as to when an enquiry can be said to have commenced, and it accepted that the enquiry does not commence as soon as the delinquent appears and the order u/s III is read over.

At this stage, it would be useful to refer to the Calcutta new expressed in Paresh Chandra Hati and Others Vs. Ahitosh Panda and Another, As per this decision, the enquiry commences as soon as the apposite party challenges the allegation made against him and the Magistrate proceeds to ascertain the truth of the allegation (sic) taking evidence or otherwise. This view was taken because the Bench felt that in the summons case the enquiry or trial, the ease may be, does not begin with the mine appearance of the accused as, alter appearand substance of the accusation has to be explained and on the accused (sic) ling guilty, the Magi Strate proceeds to hear the prosecution. By referring to the word "proceed" in Section 116(1) it, was stated that mere appearance does not commence the enquiry.

The Courts which have, however, accepted appearance alone to be sufficient for the purpose, have stated that the adjustement after appearance and denial of the accusation is for the purpose of proceeding with the enquiry (see paragraph 8 of Sita Ram). Similarly, in J.C. Mehta (1982 Cri (sic) 1488 it was stated that the act of asking the person to show cause on his not admitting the accusation on appearance is, itself step in the enquiry. As to Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, it was pointed out in J.C. Mehta (supra,) that the observation therein that some enquiry has to be made before the bond can be ordered, was relatable to thy execution of interim bond and had no relation with the point of lime when an enquiry can be said to have commenced.

I would, however, think, that the second case of Madhu Limqye had rejected the view that an enquiry can be said to have commenced on the appearance of the person. This would be clear from what has been stated in paragraphs 42 and 43, as the view that "action can be taken as soon as the person appears because then the Magistrate may be said to have entered upon the enquiry" had found disapproval of the Court, The requirement of Section 116(1) that the Magistrate must "proceed to enquire into the truth of the information" would show that after exercise of questioning the person is over, some further step must be taken before enquiry can be said to have commenced. It is no doubt correct that the time granted to show cause on dental of the allegation is a step in the direction of enquiring into the truth of the information, but real enquiry cannot commence before show cause is filed, as only then the full mind of the person proceeded against would become known. No doubt, the provision in Sub-section (1) of Section 116 that the Magistrate must take "such further evidence as may appear necessary" would indicate that further evidence may pot be necessary in all cases which would be the position where the person concerned admits the allegation, but as is common experience, these allegations are very rarely admitted, if at all. Thus, the real stage for commencement of the enquiry comes after the show cause has been filed and thereafter the Magistrate decides to proceed to enquire int.(sic) the truth of the information. This would be so when a date fixed for recording evidence. This is the minority view expressed Sitaram''s case by Sharma, J. and I find myself in respectful with that view. This accords with what has been the two cases of Madhu Limaye and would also advance the object behind putting a time limit of the proceedings. It would take care of undue harassment on the one hand and fructification of the proceedings in most cases, which may if the period is to be counted from the first appearance, opposite party may on various pretexts prolong the proceed for filing his show cause. If the opposite party prolongs (sic)enquiry by asking for time to file show cause, he cannot others and no fault should, be found for it with the . It may be stated that the view I have taken is very that expressed by my learned brother Saikia, J., in Chandreshwar.

In the present case, the written statement was filed on (sic)781 on that date itself, the learned Magistrate had order recording of evidence. I would, therefore, regard the afore-said day as the date of commencement of the enquiry. As six period had expired counting from that day by 28.1.82. (sic) that the proceeding had stood terminated by the force Sub-section (6) on 28.1.82. As such, the learned Magistrate have ordered on that day for continuance of the enquiry of the powers conferred on him by Sub-section (6) of Section 116. It is not disputed before me, and rightly, that the continue the enquiry beyond the period of six months or special reasons has to be invoked before the expiry of the (sic) period.

Another point urged by the learned Counsel of both parties may also be dealt with. The question is as to whether counting the period of six months, the time taken in revision were the higher Courts will be excluded or not. I would think this has to be done, as otherwise in many cases such a can be rendered instructuous merely by approaching the arts in revision against one order or the other passed the Magistrate. Though Shri P.K. Baruah submits that in absence of any specific provision like that of one finding place in Section 470 Code of Criminal Procedure to exclude the time taken in revision, such period may not be allowed to be excluded. Shri Bhattacharyya contends that the time can be excluded, even if not specifically provided for. He has referred in this connection to Sagarmal v. Pushraj 1974 ALR 97 wherein the time taken before the learned Sessions Judge was excluded in counting the, period of limitation for preferring a, revision before the High;, Court though not provided by the Code. In Arakhita Swain v. Bansidhar Sahu 1981 Cri. L.J. (NOC) 11, the contention that the time taken for revision should be included In the period, of six months was not accepted. As a right of revision exists, It would be unreasonable to count the time taken in revisional Court for the purpose of Sub-section (6) of Section 116, as otherwise all cases where revisions are preferred would become futile and sterile.

The result is that the petition is allowed with the declaration that the impugned proceeding stands terminated.