Kerala High Court
Muhammedkutty vs State Of Kerala on 12 March, 2007
Equivalent citations: 2007CRILJ3016, 2007(2)KLJ176
Author: J.B. Koshy
Bench: J.B. Koshy, T.R. Ramachandran Nair
JUDGMENT J.B. Koshy, J.
1. When an inquiry under Section 116 of the Code of Criminal Procedure commences is the question referred by a learned single Judge of this Court to be decided by the Division Bench. In Mathukutty v. State of Kerala 1995 (1) KLT 742 : 1995 Cri LJ 3293, it was held that the inquiry will commence only from the date of recording of evidence. Another learned single Judge in Saju Varghese v. State 2005 (1) KLD (Cri) 570 held that the inquiry commences for the purpose of Section 116 (6) from the date of appearance of the counter petitioner before the Sub-Divisional Magistrate and not from the date of recording of evidence. Section 116(6) Cr.P.C. provides that inquiry under Section 116 shall be completed within a period of six months from the date of commencement and on the expiry of six months, the said period shall stand terminated unless for special reasons to be recorded in writing the Magistrate otherwise directs. Chapter VIII of Cr.P.C. (sections 106 to 124) provides preventive measures for keeping public peace etc. and are aimed at persons who are potential danger to the general public by reason of their likelihood of commission of certain offences by them. Therefore, they can be directed to execute a bond as security for keeping peace and for good behaviour and on default of execution of bond, results in the detention. Even though, in appearance, it as an administrative order as held in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr AIR 1971 SC 2486 : 1971 Cri LJ 1720, it is really judicial in character. Sections 106 to 110 detail circumstances when a person can be directed to execute a bond or security. Sections 111 to 124 provide the procedure according to which security and execution of bond can be asked for keeping peace or for good behaviour. Section 111 obliges that the Magistrate acting under Sections 107 to 110 to require such persons to show cause by order in writing setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be in force and the number, character and class of sureties, if any, required. The above provisions are mandatory in character failing which the proceedings will become invalid as held in Nareshkumar Jain v. State of U.P. 1993 Cri LJ 1352 All. Before issuing an order of show cause notice under Section 111, Magistrate shall apply his mind and shall consider the police report and shall be satisfied that a prima facie case has been made out to take action under Sections 107 to 110 See Babulal v. State of M.P. 1991 Cri LJ 786 MP. When a person is called upon to show cause why he should not be required to give security for good behaviour, he must be ready with his evidence when he appears in obedience to the notice unless he obtains an adjournment for reasonable cause. The notice issued to the person must accompany the preliminary order under Section 111. Section 112 prescribes the procedure when such person is present in Court. The Magistrate is bound to read over to him the substance of the order/show cause notice passed against him and it shall be explained to him, if he so desires. Section 113 enables the Magistrate to summon directing him to appear before the Magistrate. Proviso to Section 113 enables the Magistrate to issue arrest warrant in certain cases and Section 114 provides that copy of the order with show cause notice should be delivered along with the warrant. Section 115 gives power to dispense with personal attendance and Section 116 prescribes the procedure to conduct the inquiry.
2. Section 116 of the Code of Criminal Procedure reads as follows:
116. Inquiry as to truth of information:
(1) When an order under Section 111 has been read or explained under Section 112 to a person 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 necessary.
(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons-cases.
(3) After the commencement, and before the completion, of the inquiry under Sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reason to be recorded in writing, direct the person in respect of whom the order under Section ] 11 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry and may detain him, in custody until such bond is executed or, in default of execution, until the inquiry is concluded:
Provided that-
(a) no person against whom proceedings are not being taken over under Section 108, Section 109, or Section 110 shall be directed to execute a bond for maintaining good behaviour;
(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under Section 111.
(4) For the purposes of this section the fact that a person is a habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise.
(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt within the same or separate inquiries as the Magistrate shall think just.
(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 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.
Section 116(1) very clearly states that when an order is passed under Section 111 has been read or explained or when a person is present before the Magistrate, 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 necessary. Sub-section (2) states that, as far as practicable, the inquiry shall be conducted in the manner prescribed for conducting the trial and recording of evidence in a summons case and Sub-section (6) provides that such enquiry, in normal case, unless a special order is passed, should be over within a period of six months. So, on the expiry of six months of the commencement, such proceedings should stop unless special order is passed otherwise by the Magistrate.
3. Before going to the contentions raised, we will come to the definition of 'inquiry'. Section 2(g) defines 'inquiry' as follows:
'Inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
Mode of taking and recording evidence in enquiries and trials are mentioned in Chapter XXIII of Cr.P.C. Recording of evidence in summons case and enquiries are specifically mentioned in Section 274 and in warrant cases recording shall be done as provided under Section 275.
4. In this connection, we also refer to the decision reported in State of Kerala v. Achutha Panicker 1975 KLT 703 wherein it was observed that "the trial of an accused person commences when he is called upon to plead to a charge and the proceeding up to the point of framing a charge is in the nature of an inquiry. There is real distinction between a trial and an inquiry. The definition of inquiry in the Code puts it beyond doubt that an inquiry is different from trial and that inquiry stops when the trial begins." In holding so, the learned Judge has referred to the Division Bench decision of the Andhra Pradesh High Court in Fakruddin v. State Police AIR 1962 AP 236 as well as in Narayanaswami Naidu v. Emperor (1909) ILR 32 Mad 220.
5. It is true that there is divergence of opinion regarding various High Courts regarding the question when enquiry starts. A Full Bench of the Patna High Court in Sita Ram v. State of Bihar AIR 1980 Pat 257 held that date of appearance of the person to be proceeded against is the starting point of enquiry. This was followed in Bhajan Rai v. State 1990 (2) Crimes 307. A Division Bench of the Bombay High Court in Dwarkanath Ramchandra Angachekar v. State of Maharashtra 1977 Cri LJ 120 held that the Magistrate is bound to proceed into the truth of the information when the accused is present and the enquiry starts as soon as the accused is present in Court. In paragraph 26 it was held as follows:
26. Having regard to the provisions of Section 112 and Sub-section (1) of Section 116, and the fact that a summons procedure is prescribed for an enquiry by Sub-section (2) of Section 116, it would appear that in the case of a person who is present in Court when the order under Section 111 is passed, the said order must be read over to him and the substance thereof explained to him if so desired by him, on that very day and, therefore, the inquiry in his case shall be deemed to have commenced on that very day irrespective of the fact whether the Magistrate records his plea or not. In the case of an opponent who is not present in Court when the order made; under Section 111 is passed, but, whose presence is secured by a summons or a warrant, as provided under Section 113, it would appear that since there is nothing to prevent the Magistrate from reading the accusations to him and recording his plea on the very day when he so appears or is brought before the Magistrate and on the other hand there is a legislative mandate to proceed to inquire into the truth of the accusation on the happening of such an event it would appear that, irrespective of the fact whether the Magistrate records the plea of the opponent or not, and irrespective of the fact whether the Magistrate proceeds with the inquiry or not, the inquiry in the proceedings must be deemed to have commenced against such a person on the very day when his presence is thus secured on the day fixed by the Court.
A similar view was expressed by the Delhi High Court in J.C. Mehta v. State 1982 Cri LJ 1488 and Rajasthan High Court in Hasan Ali v. State of Rajasthan (1979) 12 WLN 151. A Full Bench of the Orissa High Court took a different view in Sona Khan v. State 1981 Cri LJ 39 and held that enquiry starts only from the date when recording of evidence starts. Similar view was taken by the Calcutta High Court in Paresh Chandra Hati v. Ahitosh Panda 1978 Cri LJ 1171 and the Gujarat High Court in Motilal Jivanbhai v. Jesangbhai Nagjibhai 1988 Cri LJ 255).
6. In Mathukutty's case (supra) 1995 Cri LJ 3293, the learned single Judge of this Court followed the view expressed by the Full Bench of the Orissa High Court that enquiry under Section 116 of the Code of Criminal Procedure commences from the date on which the Magistrate starts recording of evidence. While coming to the conclusion, the Court mainly relied on the Full Bench decision of the Orissa High Court in Sona Khan v. State 1981 Cri LJ 39, Division Bench decision of the Calcutta High Court in Paresh Chandra Hati v. Ahitosh Panda 1978 Cri LJ 1171. The learned single Judge of this Court mainly relied on the decision of the Apex Court in Madhu Limaye v. Ved Murti AIR 1971 SC 2481 : 1971 Cri LJ 1715. In the above case, the Supreme Court observed as follows:
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....
In Madhu Limaye's case (supra) it was held as follows:
It will be noticed that before the Magistrate took action to call for an interim bond he did not make any efforts to enquire into the truth of the information as is required by Section 117(3) of the Code. He only saw the Police report and was satisfied from it, without even questioning the Sub Inspector. He did question him with regard to Narender Shastri who is described in the Order as O.P. No. 3 but not others. It is also to be noticed that the case was fixed on the following day for statements of Madhu Limaye and Ram Adhar Giri and there is no mention that any witnesses were to be present. In fact even on the next day the Magistrate was not going to try the case but only take statements from the petitioners....
It was also held as follows in Madhu Limaye's case at paragraph 16:
It appears to us that the powers of the Magistrate to ask for an interim bond were not properly exercised in this case and consequently the order to the petitioners to furnish interim bond could not be made. That stage had not been reached under the scheme of the Code of Criminal Procedure. The Magistrate could only ask for an interim bond if he could not complete the enquiry and during the completion of the enquiry postulates a commencement of the enquiry, which means commencing of a trial according to the summons procedure. It was not given to the Magistrate to postpone the case and hear nobody and yet ask the petitioners to furnish a bond for good conduct. The Magistrate should have made at least some effort to get a statement from Brij Mohan or Ved Murti Bhatt or any of the witnesses named in the challan. Nothing of this kind was done. Therefore the proceedings for asking for an interim bond were completely illegal.
The Full Bench of the Orissa High Court has referred to the Sub-section (3) of Section 116 which starts with 'after the commencement arid 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. We are of the opinion that in Madhu Limaye's case (supra) the Supreme Court only held that the Magistrate can insist for an interim bond only if it is satisfied that there is a prima facie case. That can be done only after commencement of inquiry. Provisions for making the interim bond are mentioned in Section 116(3). It prescribes that only when the Magistrate considers that immediate measures are necessary before completion of the inquiry, interim bond can be ordered to be executed. In other words, the Magistrate should be satisfied that there is a prima facie case before insisting for interim bond.
7. In the next case of Madhu Limaye v. Sub-Divisional Magistrate, Monghyr , it was observed as follows:
A question was raised before us whether the Magistrate can defer the inquiry and yet ask for an interim bond. There is a difference of opinion in the High Courts. Some learned Judges are of opinion that this action can be taken as soon as the person appears because then the Magistrate may be said to have entered upon the inquiry. Other learned Judges are of the opinion that Sub-sections (1) and (2) envisage that the Magistrate must proceed to inquire into the truth of the information and only after prima facie satisfying himself about the truth and after recording his reasons in writing can the interim bond be asked for.
After considering both views, the Supreme Court held in Sona Khan's case (supra) that:
Therefore, as the liberty of a per son is involved and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate. The facts must be of definite character.... The Magistrate adjourned the case from day to day and yet asked for an interim bond. This makes the proceedings entirely one sided. It cannot be described as an inquiry within an inquiry as has been said in some cases. Some inquiry has to be made before the bond can be ordered. We, therefore, approve of those cases in which it has been laid down that some inquiry should be made before action is taken to ask for an interim bond or placing the person in custody in default.
Therefore, in substance, the Supreme Court only held that before asking for an interim bond under Section 116(3), the Magistrate should make some enquiry so as to satisfy himself that there is some truth in the allegations and there is a prima facie case for insisting for an interim bond. We are of the opinion that the above observation, in no way, holds that inquiry under Section 116 will commence only from the time of recording of evidence. In fact, Section 116(1) suggests that the enquiry commences with the appearance of the person and the Magistrate putting the question or appearance as provided under Section 110 or 112, as the case may be, and it is the duty of the Magistrate to read out the order and from that point onwards, the enquiry starts. Of course, interim bond can be insisted only after the Magistrate prima facie satisfies that the allegation in the enquiry cannot be completed.
8. Considering the definition of 'inquiry' and also considering Section 116(1), we are of the opinion that the enquiry commences as soon as the accused appears before the Court and Magistrate proceeds with the case as held by the Patna High Court in Sita Ram's case (supra). On the facts of this case, petitioner surrendered before the Sub-Divisional Magistrate on 5-11-1999. Even though enquiry commenced from 5-11-1999, it continued after 19-5-2000 and, therefore, the appellant required the Magistrate to terminate the proceedings as six month's period was already over. The above prayer was rejected by the Magistrate. We are of the opinion that in the circumstances of the case, there was no justification at all for prolonging the case and proceedings are deemed to have terminated on the expiry of six months of the commencement of the proceedings, that is, from the appearance of the accused before the Magistrate as these preventive proceedings are intended to be disposed of as expeditiously as possible. Undue delay and continuance of the proceedings beyond six months destroys the purpose of the section itself. No order was passed by the Magistrate giving special reasons to continue the proceedings beyond six months. Therefore, order refusing to terminate the proceedings by the Magistrate following the decision in Mathukutty's case 1995 (1) KLT 742 : 1995 Cri LJ 3293 (supra) is not correct. Impugned order is set aside and we hold that proceedings taken against the appellant came to an automatic end. Hence, we also hold that the decision in 1995 (1) KLT 742 : 1995 Cri LJ 3293 was not correctly decided and we agree with the views expressed by the learned single Judge in 2005 (1) KLD (Cri) 570.