Motilal Jivanbhai Patel vs Jesangbhai Nagjibhai Patel And … on 8 April, 1986

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Gujarat High Court
Motilal Jivanbhai Patel vs Jesangbhai Nagjibhai Patel And … on 8 April, 1986
Equivalent citations: 1988 CriLJ 255, (1987) 1 GLR 209
Author: B Kapadia
Bench: B Kapadia


ORDER

B.S. Kapadia, J.

1. The present revision application is arising out of the Chapter proceedings which were initiated at the instance of the present petitioner against the opponents Nos. 1 to 7. It is alleged that on 18-7-1982 at about 9.00 or 9.30 a.m. the petitioner was siting on his ota with his two sons and at that time the opponent 1 Jasangbhai Nagjibhai Patel came there and gave a threat that he would finish the petitioner and his family. However, the petitioner did not give any reply to him and he silently went inside his house. It is also alleged that there were number of Chapter cases between the petitioner and the opponents and number of criminal cases have been filed by them. In that view of the matter, the petitioner and his family members have apprehension that the opponents 1 to 7 will cause injury to the petitioner and his family members. It is also alleged that the petitioner is unable to go to his field all alone and, therefore, he made an application for taking security of the opponents 1 to 7 for maintaining peace and keeping good behaviour. That application was made on 26-7-1982 before the learned Executive Magistrate, Karjan and it was numbered as Chapter Case No. 159/82.

2. During the pendency of the said application there was one incident on 2-9-1982. At about 1.30 p.m. on that day the opponents 1 and 5 came to the petitioner and they put dent on the mud-wall of the house of the petitioner. At that time the opponents 1 and 5 gave a threat to the petitioner.

3. After recording the evidence of the petitioner as well as his two sons Narendra and Kirtikumar as also the statement of the Head Constable, the learned Executive Magistrate” passed the order for taking personal bonds of Rs. 500/- each of the opponents 1 to 7 for not committing breach of peace for the period of six months. The said order was passed on 14-5-84.

4. The opponents herein preferred an appeal being the Criminal Appeal No. 61/84 and the learned Addl. Sessions Judge, Vadodara by his order dt. 23-10-1985 allowed the said appeal and set aside the order passed by the learned Executive Magistrate. The present revision application is preferred against the said order of the learned Addl. Sessions Judge setting aside the order passed by the learned Magistrate.

5. Mr. K. R. Vyas, the learned Advocate appearing for the petitioner submits that the learned Addl. Sessions Judge has wrongly construed the provisions of Section 116(6) of the Cr. P.C. and wrongly came to the conclusion that the proceedings before the learned Executive Magistrate were not completed within six months as required under Section 116(6) of the Cr, P.C. and, therefore, the order passed by the learned Addl. Sessions Judge should be set aside.

6. Mr. M. M. Shastri, the learned Advocate appearing for the opponents 1 to 7 submits that the learned Sessions Judge has rightly construed the provisions of Section 116(6) of the Cr. P.C. as the learned Executive Magistrate has passed the order after six months of the commencement of the proceedings. He also submits that the learned Magistrate had no jurisdiction to pass such an order and that the learned Addl. Sessions Judge has rightly set aside the order passed by the learned Magistrate. He further submits that the evidence is properly appreciated by the learned Sessions Judge.

7. It may be stated at the outset that the learned Addl. Sessions Judge is not appreciating the evidence of the witnesses in a criminal trial where the offence is already committed. These provisions of Chapter cases are made for the purpose of preventing commission of offences. Therefore, the approach of the learned Addl. Sessions Judge should be to find out the truth of the information and allegations. It should not be the case that on the basis of false allegations, the proceedings are started. Under the circumstances, it is not necessary to draw inference on minor contradictions here and there in the evidence of the witnesses. These proceedings do not envisage the detailed evidence because these are urgent proceedings and they are required to be proceeded with urgently as the final order is to be passed within six months from the date of commencement as per the policy of the legislature. However, the learned Addl. Sessions Judge considered the evidence in para 9 of his judgment and he found that there was little contradiction because Motibhai in his evidence has stated that the opponent 1 uttered the words “you and your family would be finished”. This is the free translation of the said words, but actual words used were” (text in vernacular, hence omitted… Ed.)

While Narendra in his deposition stated that the opponent uttered the words “you would be finished” i.e.” (text in vernacular, hence omitted…Ed.) while Kirtikumar in his deposition has stated that the opponent No. 1 uttered the words “he and his family would be finished i.e. (text in vernacular, hence omitted…Ed.) Really speaking there is no contradiction at all. If the learned Judge is appreciating the evidence in the case of preventive measure in this fashion, possibly there would be no case in which there would not be any contradiction. At times minor contradictions are bound to be there, but that does not mean that they are telling lie. Further, the learned Addl. Sessions Judge has given undue importance to the evidence of the Head Constable when he has stated that there was no breach of peace. These are the proceedings to prevent the breach of peace and that is the very essence of the proceedings. The learned Addl. Sessions Judge has lost sight of the proceedings that these proceedings are initiated to prevent breach of peace. Thus, the learned Addl. Sessions Judge has wrongly rejected the version of the three persons i.e. the petitioner and his two sons on the point of allegations made in the complaint for initiating proceedings. In that view of the matter, I agree with Mr. Vyas, the learned Advocate appearing for the petitioner that the learned Addl. Sessions Judge has failed to properly appreciate the evidence and has come to the wrong conclusion in holding that the learned Executive Magistrate has erred in relying on the evidence of the petitioner and his sons.

8. The second point raised by Mr. Vyas, appearing for the petitioner is an interesting point. Section 116(6) of the Cr. P.C. provides that 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 proceeding 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.

9. As stated earlier, the very purpose of initiating the proceedings under Section 107 is for taking security for keeping peace where there is likelihood of breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity. If the proceedings are not completed within the prescribed period as provided in Sub-section (6) of Section 116 what would be the consequences that are also provided in the said sub-section. The said Sub-section (6) clearly provides that if the proceedings are not completed within such period, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated. This is the consequence prescribed by law and, therefore, that rule is mandatory. However, the learned Magistrate is also given the discretion to direct otherwise that means to continue the proceedings but for that purpose special reasons are required to be recorded in writing and these reasons are to be recorded before the expiry of the said period.

9A. Mr. Vyas submits that words “from the date of its commencement” mean from the date on which the evidence is recorded because according to him, the Magistrate has to proceed with the matter under Section 116 after the order under Section 111 has been read over to the persons present in the 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. In view of Sub-section (1) of Section 116 Mr. Vyas submits that “from the date of its commencement” means “from the date on which the recording of evidence begins”. In support of his submission Mr. Vyas has relied on the judgment of the Full Bench of the Orissa High Court reported in 1981 Cr. LJ 39 in the case of Sona Khan v. State. In the said judgment it is observed as under:

Section 116 of the Code of 1973 corresponds to Section 117 of the Code of 1898. Sub-sees. (6) and (7) of the 1973 Code are new provisions. Old Sub-section (3) commenced with “pending the completion of the enquiry.” The new Sub-section (3), however, starts with “after the commencement and before the completion of the enquiry.” This change 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 enquiry and before its completion. The amendment gives effect to the Supreme Court decision in Madhu Limaye’s case in AIR 1971 SC 2481 : 1971 Cri LJ 1715….

It was held by the Supreme Court in the said Madhu Limaye’s case as under:

…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…

It was held on the facts of that case that if interim bonds were required from the petitioners the magistrate ought to have entered upon the enquiry and satisfied himself, at least, prima facie about the truth of the information in relation to the alleged facts. Without making any inquiry neither could the Magistrate order the petitioners to be detained nor require them to execute a bond with or without surety. The Full Bench of the Orissa High Court further observed in the aforesaid case as under:

In view of the ratio in Madhu Limaye’s case and the language of the new Code, there is no scope for the proposition that without commencement of inquiry, an order for interim bond can be made. Inquiry does not commence as soon as the delinquent appears and the notice under Section 112 of Cri. P.C. is read out to him. The Supreme Court has emphasised on the position that bare allegations cannot form the foundation of the order for a bond and failing furnishing of it detention of the delinquent. The allegations have got to be tested. It may be that in a particular case, oral evidence may not be necessary to test the truth or otherwise of the allegations. Affidavits may be enough. There may be documentary evidence which might substitute oral evidence which necessitates examination of witnesses. Parties may agree that the allegations are true and therefore, there may not be any necessity of looking for evidence. Situations arising in daily life cannot be catalogued and discretion must be left to the Magistrate to deal with particular situations as may arise before him in different eases, but the mandate of the law is that the inquiry must proceed to ascertain the truth of the allegations by application of his judicial mind and look for materials which would substitute allegations into facts. The inquiry contemplated is an acceptable legal process by which allegations can be converted into facts. What that process would be should be left to the discretion of the Magistrate with reference to facts of each case, but he must adopt an acceptable judicial method for testing the allegations and recording findings of fact with reference to the acceptability or otherwise of such allegations.

After the aforesaid observations on the point of interim bond as required under Section 116(3) of Cr. P.C. the Full Bench further considered as to when the enquiry commences for the purpose of computing the period stipulated under Sub-section (6) of Section 116 of the Code. It is observed in para 8 of the said judgment that “commencement of enquiry is a concept common to sub-sees. (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 it is not open to the Magistrate to defer the inquiry and call for an 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 facts. Both Sub-sections (3) and (6) of Section 116 refer to this stage as the commencement of inquiry. The Supreme Court rightly pointed out 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 proceeding. There may be instances where fresh allegations also come up and become material for an interim bond. Yet, ‘commencement of inquiry’ in Sub-sections (3) and (6) in our opinion, refers to the same stage. It is one of 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 a different meaning is intended thereby, both the phrases have to be given the same meaning, x x x x x” With these observations the Full Bench agreed with the Division Bench in Uchhaba Jena’s case (1977) 44 Cut. LT 381 : (1978 Cri LJ 124) that the view that ‘commencement of inquiry’ in Sub-sections (3) and (6) refers to the same stage. Further, it may be pointed out that so far as the proposition that the inquiry does not commence until the oral evidence is led, as laid down in that case was held to be not a correct position by the Full Bench and accordingly the reference was answered by the Full Bench. The Full Bench has considered the judgment in Madhu Limaye’s case delivered by the Supreme Court as well as the scheme of the Code. I do not find any reason to disagree with the view of the Full Bench of the Orissa High Court and I fully agree with the same.

10. Mr. Vyas appearing for the petitioner states that in this case the learned Magistrate has put to test the allegations for finding out whether they are facts, when the recording of evidence was started on 20-4-1983 and therefore, the period should be commenced from 20th April 1983 in view of the Full Bench judgment of the Orissa High Court. I agree with him and the period of six months should be counted from the said date. Even considering the period from that date the proceedings should have been completed on 20-10-83. Here in this case the proceedings were completed by the learned Executive Magistrate on 14-5-1984. In that view of the matter the proceedings would stand terminated after 20-10-83 unless there was extension, of the period by the order made by the learned Magistrate.

11. However, at this stage Mr. Vyas also brings to my notice that on 14-7-83 application was made by the opponent 1 for treating these proceedings as terminated as the matter has not been completed within six months as required under Section 116(6) of the Cri. P.C. However, on the backside of the said application it is mentioned that the applicant is not at fault for the delay. The papers were not received from the Nagar Panchayat and the Police Sub Inspector and, therefore, there was delay. Today (14-7-83) papers have been produced and the proceedings would proceed further.” In that view of the matter the proceedings were ordered to be proceeded with. Therefore, Mr. Vyas submits that in view of this there was a direction made on the said application and the said application was given within the period of six months namely, 20th April 1983.

12. Mr. Shastri appearing for the opponents 1 and 7 submits that there should be special reasons recorded by the Magistrate and there should not be ordinary reasons. I fully agree with him. What would be the special reasons would depend upon the facts of each case. Here in this case the special reason given by the learned Executive Magistrate is that he had not received the papers from the Nagar Panchayat and the Police Sub Inspector. Looking to the facts and circumstances of the case, it cannot be stated that it is not a special reason and hence, six months’ period would begin to run from that date as he has already given special reasons before the expiry of six months i.e. 20- 10-1983. Even considering the six months’ period from that date also the proceedings should have been completed on or before 14-1-1984, but the proceedings have not been completed within six months’ time.

13. Mr. Shastri appearing for the opponents 1 to 7 submits that once when the time is extended it cannot be extended again and there should not be blanket extension. He also submits that the proceedings are not completed within the extended time. He relied on the judgment in the case of Ramdeo Yadav v. State of Bihar 1985 Cri. LJ 436 wherein it is observed as under:

Having given a careful consideration to the language of Section 116(6) of the Code, I find that the intention of the legislation in limiting the period of six months from the date of the initiation of the proceedings had a special significance i.e. to conclude such an emergent proceedings within a very short time but for which, the very purpose of taking such a proceeding would be defeated. It is just in order to meet some special situation in the proceeding, not being concluded within the statutory period of six months, that the legislation provided for an extension and that too by an order of the Magistrate assigning special reasons therefor and not otherwise. The very scheme and intent behind such an extension pre-supposes an extension not beyond the main statutory period.

It is further observed in para 6 of the said judgment as under:

6. Taking the worst position that in case the proceedings are not concluded within the extended period, and considering some extraordinary measures, further, extension or extensions may be required, but even those extensions will require further special reasons by the Magistrate, although such repeated extension should be discouraged, since that would be providing unfettered power to a Magistrate to continue the proceedings for an unreasonably long period which is not the purpose of an emergent proceeding. In my view, in no case, can the extension granted by a Magistrate be taken to be a blanket and unfettered extension.

The observations made by the learned Judge in the aforesaid case are consistent with the intention of the Legislature as indicated in Section 116(6) of the Cr. P.C. and I fully agree with the said observations. Here in this case there is no further application.

14. In that view of the matter the proceedings are not completed within six months from the date of the commencement as well as from six months’ period from the date of extension i.e. from 14-7-83 and therefore, the proceedings stand terminated. The learned Sessions Judge is therefore, right on this point. It may be stated that the proceedings were initiated on 26-7-1982 and by the order dt. 14-5-1984 the opponents were required to give the bonds for the period of six months. In that view of the matter those six months are over and because of the bonds or otherwise, no untoward incident has taken place thereafter. Still however, in future if any such occasion arises the parties would be at liberty to take appropriate action for the prevention of any such incident which would involve breach of public peace.

15. In result the criminal revision application fails and stands dismissed. Rule discharged.

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