Himachal Pradesh High Court
Smt. Urmila Devi vs State Of Himachal Pradesh on 16 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.372 of 2018
Date of Decision: 14.11.2018
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Smt. Urmila Devi .........Petitioner.
Versus
State of Himachal Pradesh ..........Respondent.
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner : Mr. Devinder Singh Nainta, Advocate.
For the respondent
r :Mr. S.C. Sharma and Mr. Sanjeev Sood,
Additional Advocate Generals, for the
State.
Mr. Sandeep Kumar Pandey, Advocate,
for respondent namely Mr. Raj Kumar S/o
Sh. Daulat Ram.
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Sandeep Sharma, J. (Oral)
Being aggrieved and dis-satisfied with judgment dated 23.7.2018, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, whereby application under Section 116 (7) Cr.PC., having been filed by the applicant/petitioner herein (Urmila Devi), laying therein challenge to order dated 17.5.2017, passed by the learned Sub Divisional Magistrate, Sub-Division Kalpa at Reckong Peo, in Case No. 35/IV/16, titled Raj Kumar v. Urmila Devi under Sections 107 and 150 of Cr.PC., came to be dismissed, petitioner approached this Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -2-Court in the instant proceedings filed under Article 227 of the Constitution of India.
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2. Briefly stated facts, as emerge from the record are that proceedings under Sections 107 and 150 Cr.PC., came to be initiated against the present petitioner in the court of learned Sub-Divisional Magistrate, Kalpa at Reckong Peo , at the behest of complainant namely Raj Kumar, who alleged that the petitioner had been making threats to her and his brother Ram Pal to vacate the house, which had been constructed by him in the year, 1986 on the land of one Amar Chand Pathak and on account thereof, there is great threat to breach of peace and the public tranquility. Learned Magistrate after having received aforesaid complaint found sufficient ground to initiate proceedings under Sections 107 and 150 Cr.PC and accordingly, issued show cause notice under Section 111 Cr.PC to the present petitioner directing her to show cause on 20.5.2016, as to why she be not directed to execute the necessary bonds to keep peace.
3. However, fact remains that aforesaid inquiry could not be completed within the stipulated period of six months as prescribed under Section 116 (6) of the Cr.PC and as such, Sub-Divisional Magistrate, vide order dated 17.5.2017, while exercising power under Section 116 Cr.PC, enlarged the time and fixed the case on 4.7.2017.
Being aggrieved and dis-satisfied with the passing of order dated ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -3- 17.5.2017, petitioner preferred an application under Section 116 (7) of Cr.PC., praying therein for setting aside order dated 17.5.2017, passed .
by the Sub-Divisional Magistrate and terminate the inquiry initiated against her at the behest of the complainant Raj Kumar. Learned Sessions Judge Kinnaur Session Division at Rampur Bushahr, vide judgment dated 23.7.2018, dismissed the application filed under Section 116 (7) Cr.PC, and upheld the order passed by the Sub-Divisional Magistrate and directed the present petitioner to appear before the Magistrate on 20.8.2018. In the aforesaid background, the petitioner has approached this Court in the instant proceedings.
4. I have heard the learned counsel for the parties as well gone through the records of the case.
5. Having heard learned counsel for the parties and perused material available on record, it is not in dispute that show cause notice on the complaint made by the respondent Raj Kumar was issued on 30.4.2016, and as such, inquiry in terms of Section 111 Cr.PC., was to be completed by the Sub-Divisional Magistrate within a period of six months as provided under Section 116 of Cr.PC. At this stage, it would be profitable to take note of following provisions of law:
"111. Order to be made. 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, ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -4- and the number, character and class of sureties (if any) required.
112. Procedure in respect of person present in Court. 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.
113. Summons or warrant in case of person not so present. If such person is not present in Court, the Magistrate shall issue in 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:
Provided 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 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.
114. Copy of order to accompany summons or warrant.
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.
115. Power to dispense with personal attendance. The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader.
116. Inquiry as to truth of information.
(1) .....................
(2) ......................
(3) .....................
(4) .....................
(5) ......................
(6) 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 ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -5- stand terminated on the expiry of a period of six months of such detention.
(7) 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."
6. Careful of Section 111 Cr.PC. clearly suggests that when magistrate acting under Sections 107, 108, 109 and 110, deems it necessary to require any person to show-cause, he /she would make order in writing specifically stating therein the substance of information received directing his/her to show cause as to why he/she be not directed to execute the necessary bond to keep peace. Provisions contained under Sections 112, 113 and 114 Cr.PC., provides for procedure to be followed for causing presence of person. Section 116 Cr.PC provides that magistrate shall proceed to inquire into the truth of information, upon which action is taken and take such further evidence as may appear necessary. Section 116 (6) categorically provides that inquiry under this section shall be completed within a period of six months from the date of its commencement and if such enquiry is not so completed on the expiry of the said period, proceedings under this Chapter shall stand terminated, however, for special reasons to be ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -6- recorded in writing, magistrate may otherwise direct. Section 116(7) further provides that when any direction is made under .
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.
7. Mr. D.S. Nainta, learned counsel representing the petitioner while inviting attention of this Court to the impugned order dated 17.5.2017, made a serious attempt to persuade this court to agree with this contention that no plausible reason has been assigned by the Sub-Divisional Magistrate while enlarging the time and as such, inquiry initiated at the behest of the respondent-
complainant stood terminated automatically after expiry of six months.
8. Having gone through the reasoning assigned by the Sub-Divisional Magistrate in the impugned order, whereby time came to be extended, this Court is inclined to agree with the contention of Mr. D.S. Nainta, learned counsel that no justifiable reasons for enlargement of time, have been assigned by the court below while extending time under Section 116 (6) Cr.PC, which ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -7- empowers magistrate to enlarge time for special reasons to be recorded in writing, but interestingly, in the case at hand, .
magistrate proceeded to enlarge the time on the request of respondent, who prayed for enlargement of time to file reply which could not be a ground to enlarge the time, rather court below in the absence of reply, if any, ought to have proceeded to punish the accused, if otherwise found guilty, on the basis of material available with it.
9. to Though, impugned order suggests that report of field agency was awaited, but there is no mention in the order that prior to passing of impugned order, report of revenue agency was called for, and the same was awaited, rather it appears that for the first time, on 17.5.2017, Sub-Divisional Magistrate called for the report of revenue agency, by which time, statutory period of six months as provided for completion of inquiry under Section 116 (6) Cr.PC., has already expired. Similarly, judgment dated 23.7.2018, passed by the learned Sessions Judge in application filed under Section 116 (7) Cr.PC., by the present petitioner is also not sustainable because same is also not based upon the proper appreciation of law as well as facts of the case. Learned Sessions ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -8- Judge, in its order observed that on 17.5.2017, petitioner sought time to file reply, as such, magistrate enlarged the time. But as has .
been observed above that in case petitioner had not filed reply, Sub-Divisional Magistrate ought to have proceeded to pass final order on the basis of material already available on record and it had no occasion to extend the time. As per Section 116 (6), inquiry was to be completed within the stipulated period of six months, meaning thereby, final decision in all circumstance, was to be taken by the officer concerned well within the time frame fixed under the Act. No doubt, time could be enlarged, but in exceptional circumstances by recording reasons. But in the case at hand, reasoning recorded is totally absurd, rather it appears that Sub-Divisional Magistrate solely with a view to help the respondent, who had not filed reply extended time to file reply.
Otherwise on that day, Sub-Divisional Magistrate could proceed to decide the matter finally merely on the basis of material available on record. Learned Sessions Judge, also recorded in its judgment that report of revenue agency was not received but such finding does not appear to be based upon the correct appreciation of record because bare perusal of order dated 17.5.2017, passed by ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP -9- the Sub-Divisional Magistrate clearly suggests that report of revenue agency was called for the first time on that day, which .
itself suggests that Sub-Divisional Magistrate Kalpa at Reckong Peo was callous and negligent while conducting inquiry under Section 116 (6) of the Cr.PC.
10. Reliance is placed on judgment passed by the High Court of Allahabad in Ummaid Ali v. State, A.Cr.R (Allahabad) 147 on 16.11.1976, relevant paras whereof read as under:-
"12. Section 116(1) to (5) Cr. P.C correspond to old Section 117 Cr. P.C. But 116(6) and (7) are new. The principle to be borne in mind while interpreting a penal provision has been described by Pollock. C.J in Attorney General v. Sillems (1864) 2 HSCC 431, 33 LJ Ex.92 (110) thus:
" That our institutions were never more safe than at the present moment but we cannot lose any of the grounds of our secularity, no calamity would be greater than to introduce lax or elastic interpretation of a criminal statute to serve a special but a temporary purpose."
The Legislature has empowered the Magistrate to take action against a person for maintaining peace and for good behaviour. But the action is subject to check and balance of information and sufficient reason. Speedy action is the sine qua non of proceedings under Chapter VIll. They are inroads on individual liberty. The hazard of keeping a citizen exposed to harassment by keeping the inquiry pending for a long time has been curbed by the Legislature. The law contemplates an automatice termination of the proceedings. The Magistrate ceases to have jurisdiction once the inquiry commenced is not completed within six months.
13. The power to extend the period beyond six months has to be read along with the expression 'on the expiry of the said period shall stand terminated'. The import of these words is clear that once the ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP
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period of six months has expired the proceedings terminate by operation of law. It does not contemplate any order from the Magistrate. The only order contemplated is of extension and not termination. But the jurisdiction to extend can be .
exercised, only, so long the proceedings are alive and not after they terminate. The order dated on 21- 10-1975 extending the period of inquiry beyond six months for the reasons stated hereinbefore was without jurisdiction
14. The Sessions Judge rejected the application on the ground that the provision is directory and not mandatory. Whether the provision is mandatory or directory has to be judged from the language of the statute. Where law lays down performance of an act or exercise of power in a particular manner and further provides the consequence for non- performance the provision cannot be but mandatory. The language of Section 116 (6) leaves no room for doubt that the provision is mandatory. The inquiry is required to be completed within six months. The incomplete inquiry can be continued only if the Magistrate passes an order extending the period. If no order is passed then the consequence is provided in clear and unambiguous terms. It cannot in the circumstances be held that the provision is directory.
Even otherwise if the provision is held directory it shall frustrate the entire purpose for which this section was enacted. The applicant in this case was required to furnish a bond for keeping good behaviour for one year and the proceeding under Section 251 Cr. P.C was started after ten months. If the provision of Section 116(6) is held to be directory the prosecution can keep the inquiry pending for an indefinite period. The entire purpose of putting a limitation of six months shall be defeated.
17. As the order dated on 21-10-1075, is held to be without jurisdiction the inquiry which commenced by the notice dated 1-10-1974 cannot proceed. In view of the fact that the applicant's first contention has prevailed it is not necessary to consider the other two submissions raised on his behalf."
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11. Reliance is also placed on judgment rendered by the High Court of Rajasthan in Mithya v. State of Rajasthan, 1987 CRI.L. .
J. 1042, wherein it has been held as under:-
"18. I am therefore, convinced that the continuance of the proceedings after the expiry of six months, where the Magistrate initially while taking cognizance and registering the case mentions that the notice should be for six months only, would be gross abuse of the process of court. In all such cases after expiry of six months, proceedings must be dropped what ever may have happened in between and during this period. Of course in a given case the Magistrate would be justified in passing a fresh order on fresh facts or on the earlier facts with some supplementary information. But unless such orders are passed, the proceedings must come to an end 'ipso facto' without any order of the court in law, although in fact Magistrate must pass formal order terminating proceedings.
19. It may be mentioned that Section 107, Cr. P.C. provider the power to the Magistrate to secure such bonds and bound down the persons for keeping peace for such period which should not be more than one year.
20. In my opinion this one year should commence from the date of the satisfaction when the Magistrate takes cognizance and commences the proceedings under Section 107 Cr. P.C. and this one year which is maximum cannot be and should not be from the date of service of warrant or notice, nor it can be from date of first appearance of the accused. Of course, it is for the Magistrate concerned to satisfy himself at the stage when he starts proceedings under Section 107 Cr. P.C. whether he should issue notice to show cause for execution of the bond for one year or for lesser period, because Clause (1) of Section 107 Cr. P.C. permits such discretion depending upon the information.::: Downloaded on - 17/11/2018 22:57:57 :::HCHP
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21. However, once he has made the order for a particular period i.e. six months or nine months then he would become functus officio', so far as the proceedings under Section 107 Cr. P.C. are concerned on the expiry of that period of six months .
or nine months or what ever it may be. The learned Deputy Government candidly and fairly conceded to this interpretation of Section 107 Cr. P.C. and further pointed out that even under Section 116 Cr. P.C. after the enquiry commences sub Clause (6) makes it imperative that such enquiry should be completed within six months from the date of the commencement unless an express order is made for special reasons to continue them thereafter."
12. Careful perusal of provision contained under Section 116 (6) as well as judgments referred herein above, clearly suggests that provision contained under Section 116 (6) is mandatory, not directory and inquiry is required to be completed within six months. Incomplete inquiry can be continued only if the magistrate passes an order extending the period and if no order is passed, then the consequence is provided in clear and unambiguous terms. In the case at hand, reasons so recorded before the magistrate to continue with inquiry are totally erroneous as has been taken note herein above. Time has been extended to enable the accused to file reply which cannot be termed to be special reason to enlarge the time to complete the inquiry.
13. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble High Courts of Allahabad and Rajasthan, petition is allowed and judgment dated ::: Downloaded on - 17/11/2018 22:57:57 :::HCHP
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23.7.2018, passed by the learned Sessions Judge as well as order dated 17.5.2017, passed by the Sub-Divisional Magistrate Sub-Division Kalpa at .
Reckong Peo, are quashed and set-aside. Pending application(s), if any, also stands disposed of.
14th November, 2018 (Sandeep Sharma),
(Manjit) Judge.
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