JUDGMENT
R.K. Dash, J.
1. The sole question for consideration in this revision is : When the enquiry in a proceeding under Section 107, Cr PC shall be deemed to have commenced ?
2. To answer this question, it is necessary to recapitulate the factual aspect of the case.
The petitioner and the opp. party are real brothers. There was a land dispute which compelled them to approach the Civil Court for partition and as it appears from record, a preliminary decree, for partition has been passed by the learned Subordinate Judge, Jajpur, in Title Suit No. 158 of 1936. Because of the ill-feeling, it is alleged that the opp. party was harassing the petitioner in various ways. So, the petitioner approached the learned Subdivisional Magistrate, Jajpur by filing a petition for taking appropriate legal action against him. The said petition was sent for enquiry to the local police and on receipt of the report, the present proceeding was initiated under Section 107, Cr PC, since in the opinion of the learned Magistrate, there was likelihood Of breach of peace being committed by the opp. party.
3. On being noticed, the opp. party appeared On 15-10-1992 whereupon the learned Magistrate read over and explained the substance of the accusation and on his denying the same, the case was adjourned to a future date for filing show pause. The case thereafter suffered four adjournments and finally on 18-11-1992, show cause was filed whereafter the case was adjourned to 27-11-1992 for hearing.
4. To substantiate the accusation the petitioner examined three witnesses in all. On 7-4-1993 on which date the evidence of the petitioner was closed, a petition was filed praying to direct the opp. party to execute interim bond. Record shows that without giving any opportunity to the opp. party to have his say, learned Court below passed orders directing the opp. party to execute interim bond.
Feeling aggrieved, the opp. party preferred a revision and the learned Additional Sessions Judge, Jajpur, upon hearing the parties, set aside the aforesaid order on the ground that since enquiry could not be completed without six months from the date of commencement of enquiry as envisaged in Sub-section (6) of Section 116, Cr PC, learned Magistrate lacked jurisdiction to pass any such order directing execution of interim bond.
5. Security proceedings are preventive and not punitive. They are intended to secure public peace and tranquillity and cannot be resorted to as a measure of compensatory relief to any individual victim of a criminal offence. Since the proceedings affect the liberty of the subjects who are not found guilty of the offence, it is essential that the power should be exercised strictly in accordance with law and the purpose of such proceedings is not served, if those are kept pending for months together on one pretext or the other. Prolongation of the proceedings is not calculated to achieve the object. Needless to mention that the purpose of initiating a proceeding under Section 107, Cr PC is to prevent imminent breach of peace and tranquillity. So, the very purpose of initiating the proceedings would be frustrated if the enquiry is not completed within a reasonable time. Besides, delayed enquiry adversely affects the delinquent when he has no contribution for such delay. Under the old Criminal Procedure Code no time-limit was fixed. As a matter of fact the proceedings continued for years together which caused much hardship and unnecessary expenses to the person proceeded against. So, the legislature m its anxiety to prevent abuse of the process of law, brought an amendment in the new Criminal Procedure Code that a proceeding under Section 107, Cr PC shall be completed within a period of six months from the date of commencement of enquiry. However, in exceptional cases the Magistrate may by recording special reasons extend the period
6. The above being the statutory provision, question then arises for consideration as to when the enquiry commences, that is, whether from the date of appearance of the delinquent or from the date of filing of 9how cause or from the date of taking of evidence. Judicial opinion is not unanimous in this respect. However, so far as this Court is concerned it has been settled at rest by the Full Bench in Sana Khan and Ors. v. State : 50 (1980) CLT 245, where the question has been answered in following terms :
“The next question for consideration is as to when inquiry commences for the purpose of computing the period stipulated under Sub-section (6) of Section 116 of the Code. ‘Commencement of inquiry’ is a concept common to Sub-sections (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 provision itself is preventive and is intended to meet emergent situations. The purpose is to maintain public peace and tranquillity. Parliament has held out a mandate that the inquiry must be expeditious. As pointed out in Madhu Limaye’s case (A’R 1971 SC 2481), it is not open to the Magistrate to defer the inquiry and call for ad interim bond. As we have already indicated, commencement of inquiry starts when the Magistrate attempts in a legal way to put the allegations to test for finding out whether they are the facts….”
In a later decision in Bhagaban Pradhan and Ors. v. Jayaram Mohanty and Ors. : 1995 Cri LJ 607, Hon’ble A. Pasayat, J. relying on the Full Bench decision in Sons Khan’s case (supra) has observed :
“… Thus, the real stags for commencement of the inquiry comes after the show cause has been fired and thereafter the Magistrate decides to proceed to inquire into the truth of the information.”
I respectfully agree with the views propounded in the above two decisions and hold that commencement of inquiry starts as soon as the delinquent files show-cause. Similar view has been taken by the Calcutta High Court in the case of Paresh Chandra Hati and Ors. v. Ahitosh Panda and Anr. : 1978 Cri LJ ;171. where a Division Bench held that an inquiry would commence as soon as the delinquent challenges the allegations made against him or refuses to admit the same or submits a show cause petition against the allegations.
7. Coming to the case in hand, the learned Additional Sessions Judge has taken 15-10-1992, the date when the particular of the offence was explained to the delinquent, as the date of commencement of enquiry. From the record it appears that the opp. party filed show cause on 15-11 -1992. In view of the decisions in Sona Khan {supra) and Bhagaban Pradhan (supra), the view taken by the learned Additional Sessions Judge regarding commencement of enquiry cannot be upheld. Taking the date of filing of show cause, i. e. 18-11-1992 as the date of commencement of enquiry, I would hold that the order passed by the learned Magistrate directing the opp. party to execute interim bond is within time.
8. This takes me to find whether the order regarding execution of interim bond is legally sustainable. It may be reiterated that the opp. party was quite unaware of the application filed by the petitioner praying to direct the opp. party to execute interim bond. The said application was filed on the day petitioner closed his evidence. No opportunity of hearing appears to have been given to the opp. party on the said application. On the adjourned date the learned Magistrate to the utter surprise of the opp. party passed order directing him to execute interim bond. It is fundamental that when any application is filed by a party, his adversery should be given an opportunity to have his say and only thereafter reasoned order can be passed. The learned Magistrate in the present case, without applying his judicial mind to the question, whether immediate measure was necessary for prevention of breach of peace, passed the order as aforesaid. The dispute between the parties-two brothers, being with regard to land and the petitioner’s allegation being trivial in nature, the order for execution of interim bond passed by the learned Magistrate is not legally sustainable.
9. In view of the discussions made above, there being no merit the revision is dismissed.
