1992 Supreme(Bom) 317

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Smt. Christalin Costa and others .....Petitioners.
Versus
State of Goa and others .....Respondents.
Criminal Writ Petition No. 4 of 1992, decided on 7-7-1992.
Advocates Appeared :
A.N.S. Nadkarni, for the petitioners.
G.U. Bhobe, P. P. for respondents No. 1 and 4.
P.A. Kholkar, for respondents No. 2 and 3.

Headnote:Sections 107 read with Section 111-Purpose of Section 107-Duty of Magistrate on initiating proceedings under Section 107-Constrnction of Sections 107 and 111-Magistrate ordering accused to execute bond for maintaining peace.

       Whether justified-Proceedings under Section 107 of Code are always dealing with preventive measures to be taken by the Magistrate in order to preempt any possibility of breach of peace and disturbance of public tranquility and not in case of quarrels between two individuals not creating problem of public order.

       On initiating proceedings under Section 107, Magistrate is required to give such personal incriminating material relied by him to initiate proceedings to satisfy principles of natural justice and fairness demanding such action on part of Magistrate.

       The harmonious construction of provisions clearly suggests that no order requiring any person against whom proceedings under Section 107 of Criminal Procedure Code have been instituted can be passed by the Magistrate to execute a bond for maintaining peace unless a notice is issued to him to show cause as to why he should not b, ordered to execute such a bond and this notice is to be given to him only after an order in writing is made by the Magistrate setting forth the substance of the information and among other details of the bond to be executed by the said person. It follows therefore that the Magistrate is expected to apply his mind on the material placed before him by the police along with his report and on giving an opportunity to the opposite party to have a say on the question of executing a bond and issue appropriate orders in this respect. The execution of the bond appears therefore to be an independent facet of the inquiry which the Magistrate is entitled to hold on the basis of the report forwarded to him by the police.

       In the instant case Magistrate merely explained the substance of the complaint made against the accused by the police which would not amount to issue a notice to show cause as to why bond should not be executed by them to maintain peace. The record clearly points out that the order was issued in a most punitive manner. The law was not contemplated on this type of bonds to be executed by parties appearing before him in proceedings under Section 107 of Code and on this count alone the order passed was wrong and without any basis either in facts or in law.

       Sections 107 and 116 (b)-Proceedings initiated under Section 107 Injury contemplated by Section 111 not completed within six months-Application for closing proceedings as having lapsed-No order passed-Writ against -Held-On lapsing of proceedings order closing proceedings must be passed.

       Sub-section (6) of Section 116 is expressly clear that the inquiry under the aforesaid section as to the truth of information of facts which have given rise to the said inquiry under Section III of Criminal Procedure Code 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.

       In the instant case there was nothing on record to show that the Magistrate had in his wisdom thought it fit to extend the period of the inquiry which he Was supposed to hold under Section 116 of Criminal Procedure Code on the complaint lodged by the police before him consequent upon Chapter case 112/91 initiated against the petitioners on 5-6-1991. To be noted that this extension of time had to be directed by the Magistrate before the expiry

       of six months period and not after its expiry. That a plain reading of Section 116 goes to show that an inquiry after the expiry of a period of six months from the date of its commencement stands automatically terminated. Once the inquiry comes to an end, the Magistrate is not empowered to revive it. He, however, before termination of the inquiry can order otherwise for special reasons to be recorded in writing. In the instant case, it was seen that the Magistrate not only failed to keep the inquiry alive by extending its period for valid reason but also neglected in his duty to close the said inquiry as well a. the proceedings in spite of the fact that the petitioners had moved an application before him to this effect. The submission of S that no such orders appeared to be necessary was to be rejected in the special circumstances of this case wherein the petitioners had approached the Magistrate to declare the proceedings as lapsed and closed.