ORDER
K.P. Balanarayana Marar, J.
1. The short question for consideration is whether the period of six months prescribed under sub-section (6) of Section 116 of the Code of Criminal Procedure commences from the date of appearance of both parties to the enquiry proceedings or from the date of starting of recording of evidence.
2. Petitioners are counter-petitioners in M. C. No. 25 of 1995 before Sub-Divisional Magistrate, Palai. The proceedings were initiated by the Magistrate on the basis of the report submitted by the Sub-Inspector of Police, Erattupetta on 4-8-1994, that the counter-petitioners therein (petitioners herein) are likely to commit breach of peace in the locality, disturb public tranquility and do wrongful acts that may cause a breach of the peace in and around the area of Panichipara kara in Poonjar Nadubhagam village of Meenachil Taluk. By Ext. P2 order dated 25-8-1994, the Sub-Divisional Magistrate directed the counter-petitioners to appear before him at Palai on 8-9-1994 and show cause why they should not be ordered to execute a bond for a sum of Rs. 1,000/- along with two sureties each for the like sum for a period of one year to keep peace in the locality. Petitioners had moved this Court earlier by Crl. M. C. No. 1825 of 1994 to quash that order. That request was rejected by order rendered on 1-12-1994. Since then the Magistrate by Ext. P. 6 order dated 8-12- 1994 directed petitioners to execute an interim bond without sureties for keeping peace and public tranquillity till the final disposal of the complaint.
3. In the meantime 1st petitioner had filed an Original Petition before this Court as O. P. No. 17991 of 1994 seeking a writ of certiorari or other appropriate direction to quash the proceedings pending before the Magistrate. That request was also declined by this Court with the observation that the Sub-Divisional Magistrate shall give opportunity to petitioners to represent their grievance before him. Since then petitioners moved a petition before the Magistrate Under Section 116(6) of the Code for dropping the proceedings for the reason that the enquiry had not been completed within a period of six months as prescribed in that Sub-section. The grievance of petitioners is that the Magistrate had not heeded to the submissions made by them in this behalf and the proceedings were adjourned for taking evidence. Abailable warrant is also alleged to have been issued to the witnesses who had not appeared before him on 25-3-1995. Quashing of Ext. P. 6 is sought by petitioners. A direction to the Magistrate to drop the proceedings Under Section 116(6) of the Code is also claimed.
4. Heard counsel for petitioners.
5. In a proceeding Under Section 116 of the Code, the Magistrate has to inquire into the truth of the information. He is bound to follow the procedure prescribed for recording evidence in summons cases. Section 116(1) says 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 to be necessary. After commencement and before the completion of the inquiry under Sub-section (1), the Magistrate, if he considers that immediate measures are necessary for prevention of a breach of the peace, may direct the person to execute a bond with or without sureties for keeping peace or maintaining good behaviour until the enquiry is concluded. Sub-section (6) of
Section 116 of the Code directs that the enquiry under the Section shall be completed within a period of six months from the date of its commencement. If the enquiry is not so completed, the proceedings under the Chapter shall, on the expiry of the said period, stand terminated unless, for special persons to be recorded in writing, the Magistrate otherwise directs. That sub-section contains a proviso which is not relevant for the purpose of this petition.
6. On the basis of these provisions learned counsel for petitioners contends that the calculation of six months has to be made from the appearance of both parlies to the enquiry proceedings and the six months’ period having been over by 25-2-1995. The proceedings stand automatically terminated. The Magistrate, according to counsel, was therefore not competent to continue the proceedings and was bound to drop the same when a request was made by petitioners in that behalf. The grievance is that the Magistrate has proceeded with the enquiry and had issued summons to the witnesses, which, according to petitioners, is illegal.
7. The question for consideration is whether the calculation of the period of six months Under Section 116(6) of the Code has to be made from the date of commencement of proceedings or from the date on which the Magistrate has started recording of evidence. On this aspect, the decisions of the Courts in this country are not uniform. The Gujarat. Orissa and Calcultta High Courts are of the view that the period commences from starting of recording of evidence whereas the Delhi, Bombay, Patna and Rajasthan High Courts are of the view that the period commences from the date of appearance of the parties to the enquiry proceedings. To ascertain the correct legal position, the decisions rendered by the various High Courts are to be understood in the light of the various provisions contained in Section 116 which had been adverted to earlier.
8. The Delhi High Court in the decision in J. C. Mehta v. State. 1982 Crl. LJ 1488 is of the view that the date on which the person sought to be proceeded against appears or is brought before the Magistrate is the date when the latter is supposed to proceed with the enquiry as contemplated in Section 116(1) of the Code. In coming to this conclusion, the Court followed a Full Bench decision of the Patna High Court in Sitaram Singh v. State of Bihar, AIR 1980 Pat 257. The Full Bench observed that the forming of conclusion to proceed to enquire into the allegations takes place on the very day the party noticed appears in Court. Similar view was expressed by a Bench of the Bombay High Court in Dwarkanath Ramachandra v. State of Maharashtra. 1977 Cri LJ 120. and Rajasthan High Court in Hasan Ali v. State of Rajasthan (1979) 12 WLN 151.
9. The contra view is expressed in a Full Bench decision of the Orissa High Court in Sona Khan v. State, 1981 Cri LJ 39 : AIR 1981 NOC 30 Orissa. The Full Bench after referring to Madhu Limaye’s case, AIR 1971 SC 2481 : 1971 Cri LJ 1715 considered the question as to when the enquiry commences for the purpose of computing the period stipulated under
Sub-section (6) of Section 116 of the Code. The Full Bench observed that commencement of enquiry is a concept common to
Sub-section (3) and (6). The mandate in Sub-section (1) is that after appearance of the delinquent, the order has to be read out and inquiry has to follow. The Full Bench observed that as pointed out in Madhu Limaye’s case, it is not open to the Magistrate to defer the inquiry and call for an interim bond. It was held that commencement of inquiry starts when the Magistrate attempts in a legal way to put the allegations to test for finding out whether they arc facts. Both Sub-sections (3) and (6) of
Section 116 refer to this stage as the commencement of inquiry. The Full Bench has quoted the observations of the Supreme Court in Madhu Limaye’s case that it is not an inquiry within an inquiry. Ordinarily, the interim bond is asked for on the allegations forming the foundation for the basic proceedings. There may be instances where fresh allegations also come up and become material for an interim bond. The Full Bench observed that “commencement of inquiry” in sub-sections (3) and (6) refers to the same stage. The well accepted rules of interpretation that when the same phrase occurs in the same section at different places and there is no indication of legislative intent that different meaning is intended thereby, both the phrases have to be given the same meaning were followed by the Full Bench. It is with these observations that the Full Bench agreed with an earlier Division Bench decision of the same High Court in Uchhaba Jena’s case, 1978 Cri LJ 124 that “commencement of inquiry” in sub-sees. (3) and (6) refers to the same stage.
10. The Supreme Court in Madhu Limaye’s case (supra) held (at page 1719 of Cri. L. J.):
“… A Magistrate can ask for an interim bond only if he cannot complete the enquiry and “during the completion of enquiry” postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. The power to ask for an interim bond is not given to the Magistrate to postpone the case and hear nobody and yet ask a person to furnish a bond for good conduct….”
The Full Bench of the Orissa High Court has referred to the new Sub-section (3) of Section 116 which starts with “after the commencement and before the completion of the inquiry”. This change according to the Full Bench has been made so as to put the matter beyond doubt that an interim bond can be called for only after the commencement of the inquiry and before its completion.
11. The Full Bench decision of the Orissa High Court was followed by the Gujarat High Court in Motilal Jivanbhai v. Jesangbhai Nagjibhai, 1988 Cri LJ 255 where it was held that the expression “period of six months from the date of its commencement” means from the date on which recording of evidence begins.
12. A Division Bench of the Calcutta High Court had occasion to consider this aspect in Paresh Ch. Hati v. Abitosh Panda (1978) 82 CWN 922 : 1978 Cri LJ 1171. A question arose whether the enquiry commences from the date of appearance of the party in answer to a show-cause notice and whether the proceeding terminates on the expiry of six months from such commencement. The Division Bench held that an enquiry in a proceeding Under
Section 107 of the Code of Criminal Procedure, 1973 does not commence with the mere appearance of the opposite party in answer to the notice to show cause. It depends upon the nature of the cause shown. It was held that the enquiry commences as soon as the opposite party challenges the allegations made against him or refuses to admit the same or submits a petition showing cause against the allegations or the Magistrate otherwise has reason to proceed or proceeds or decides to ascertain the truth of the allegations made against the opposite party by taking evidence or otherwise. The Division Bench observed that the word ‘proceed’ appearing in Sub- section (1) of Section 116 indicates that with mere appearance of the opposite party, inquiry does not commence. Moreover, there is the word commencement’ in Sub-section (6) of Section 116 of the Code. It is observed that this word again implies that after the starting of a proceeding Under Section 107, there is a stage when inquiry commences. There may be cases where the opposite party pray for time for showing cause against the charges on reasonable and bona fide grounds. There may be occasions where the opposite party challenges the allegations and the Magistrate may think it necessary to start an inquiry. It was ‘ held that the inquiry starts in a proceeding Under
Section 107 of the Code of Criminal Procedure as soon as the Magistrate thinks it necessary to ascertain the truth of the information upon which he has already taken action either on the basis of the plea of the opposite party or the cause shown or otherwise. In that case it was held that the enquiry commenced as soon as the opposite party challenged the allegations made by the first party.
13. The meaning of the word ‘trial’ in Sub-section (2) of Section 116 was also considered by the Division Bench. Reference is seen made to the Bench decision of the same High Court in Tushar Kanti Banerji v. The State of West Bengal (1978) 82 CWN 652. The question which arose in that case was when does a trial before the Sessions Judge commence. It was held that a trial does not commence before the Sessions Judge until after the accused committed for trial pleads guilty or pleads not guilty and claims to be tried under S. 228 of the Code and the Sessions Judge proceeds to take evidence and follow the procedure laid down in Section 231. The meaning of the word ‘trial’ must largely depend on the context in which it is used and the scheme of the enactment. The inquiry referred to in Section 116 of the Code has to be made in the manner prescribed for conducting trial and recording evidence in summons cases. This led the Bench to hold thus:
“When the enquiry referred to in Section 116 of the Cr. P. Code is to be in the nature of trial in summons cases, we must hold, as has been discussed by us hereinbefore, that it commences as soon as the opposite party in proceeding under S. 107 challenges the allegations made against him or refuses to admit the same or submits a show cause petition against the allegation or the Magistrate otherwise has reason to proceed or proceeds or decides to ascertain the truth of the allegation made against the opposite party by taking evidence or otherwise.”
14. The latter view commends to me since it is in accordance with the provisions contained is Section 116 of the Code. I am in respectful agreement with the views expressed by the Full Bench of the Orissa High Court and the Gujarat and Calcutta High Courts aforementioned, and hold that the enquiry Under Section 116 of the Code commences from the date on which the Magistrate starts recording of evidence.
15. Viewed in the light of the above principle, the enquiry in the present case does not stand terminated. The notice Under Section 107 is seen to have been sent on 25-8-1994 directing petitioners to appear before the Magistrate on 8-9-1994. The direction to execute interim bond was issued only on 8-12-1994. Even according to petitioners, the case was taken for evidence on 9-3-1995. The Magistrate is expected to complete the enquiry within a period of six months from that date. That not being over, the request for a direction to drop the proceedings is declined. In the circumstances, there is no justification for the re- quest to quash Ext. P 6 order directing petitioners to execute the interim bond.
16. For the aforesaid reasons, the Crl. M. C. is dismissed.