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1984 Supreme(Cal) 386
High Court Of Calcutta
S. P. Das Ghosh, J.
KEDAR NATH SHAW - Appellant
Versus
NARMA DEVI, STATE - Respondent
Criminal Revision 1658 Of 1981
Decided On : 11/28/1984
A.AUDDY, G.Srivastava, SASANKA GHOSH, U.C.CHATTERJI
The final order under section 117 Cr. P. C. is a part of the enquiry under section 107 Cr. P. C. and must be completed within the period of six months from the date of commencement of the enquiry.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 116(6) - EXTENSION OF TIME FOR COMPLETION OF ENQUIRY - ORDER EXTENDING PERIOD OF ENQUIRY WITHOUT RECORDING SPECIAL REASONS IS ILLEGAL - FINAL ORDER UNDER SECTION 117 CR. P. C. IS A PART OF THE ENQUIRY - ORDER PASSED AFTER EXPIRY OF SIX MONTHS MENTIONED IN SECTION 116(6) CR. P. C. IS ILLEGAL.
Fact of the Case:
The petitioner filed a petition under section 107 Cr. P. C. against the opposite party No. 1, alleging that she was a tenant in respect of one room under the petitioner and that she used to bring various types of persons in her room, causing disturbance to the other female folk in the house. The learned Magistrate drew up a proceeding under section 107 of the Code against both the opposite parties and directed them to appear on 26. 5. 80 for showing cause as to why they should not be asked to execute a bond of Rs. 500/- each with a surety of like amount to maintain peace for a period of six months. The opposite party No. 1 entered appearance on 26. 5. 80 and showed cause on 23. 7. 80. The case against the opposite party No. 2 was dropped by an order dated 16. 12. 80. On the basis of the prayer of the petitioner by an application on 20. 1. 81. for extending the period of enquiry on the ground of inability of the petitioner to complete his witnesses within the statutory period of limitation, the learned Magistrate extended the period of enquiry up to 30. 4. 81 by an order dated 20. 1. 81. The examination of witnesses was completed by 10. 4. 81. The case was fixed for hearing arguments on 27. 4. 81. Subsequently, on 9. 6. 81, the learned Magistrate directed the opposite party No. 1 to execute a bond of Rs. 500/- for keeping peace for a period of six months from the date on which such bond would be executed.
Finding of the Court:
The learned Additional Sessions Judge allowed the appeal and set aside the order dated 9. 6. 81 on holding that there was no special reason for extension of time for completion of the enquiry. He was of the opinion that the learned Executive Magistrate exceeded the period of limitation as the order dated 9. 6. 81 was a part of the enquiry within the meaning of section 116 Cr. P. C.
Issues: Whether the order of the learned Executive Magistrate dated 20. 1. 81 for extending the period of enquiry is had in law for not recording special reasons as contemplated in section 116 (6) Cr. P. C.? Whether the pronouncement of the order on 9. 6. 81 by the learned Executive Magistrate was a part of the enquiry?
Ratio Decidendi: The enquiry under section 107 Cr. P. C. has to be completed within a period of six months from the date of its commencement. The order of the learned Executive Magistrate dated 20. 1. 81 is illegal in the absence of any special reason to be recorded by him. The enquiry into the allegations in the petition under section 107 Cr. P. C. is different from trial. The final order under section 117 Cr. P. C. is passed, upon such enquiry, and not after such enquiry. The user of the expression upon such enquiry instead of the expression, after such enquiry, in section 117 Cr. P. C. shows that the final order contemplated by section 117 Cr. P. C. cannot but be a part of the enquiry in section 11; Cr. P. C.
Final Decision: The revisional application is rejected and the Rule is discharged.
( 1 ) THIS revisional application is directed against an order of the learned Additional Sessions Judge, 14th Court, Alipore in Criminal Appeal No. 77a of 1981, whereby an order of the learned Executive Magistrate, Sealdah in M. Case No. 123 of 1980 under section 107 Criminal Procedure Code was set aside.
( 2 ) THE petitioner-first party filed a petition on 28. 1. 80 under section 170 Cr. P. C. in the court of the Executive Magistrate, Sealdah on the allegation that the opposite party No. 1, Smt. Narma Devi, was a tenant in respect of one room under the petitioner at premises No. 23/14, Conspire Road, P. S. Cossipore at a rent of Rs. 30/- per month. At about 10-45 on 23. 1. 1980, the opposite party No. 2, one mr. Dogra was found inside the room of Narma Devi who was a widow, when that room, which was chained from outside, was opened. It was alleged that the opposite party. No. did not care for her dignity and used to bring various types of persons in her room, causing disturbance to the other female folk in the house. After the filing of that application, the Officer in-Charge of Cossipore Police Station was directed to enquire and report by 23. 2. 80. On 29. 4. 80, the learned Magistrate drew up a proceeding under section 107 of the Code against both the opposite parties (Narma Devi and M. Dogra) and directed them to appear on 26. 5. 80 for showing cause as to why they should not be asked to execute a bond of Rs. 500/- each with a surety of like amount to maintain peace for a period of six months. The opposite party No. 1 entered appearance on 26. 5. 80 and showed cause on 23. 7. 80.
( 3 ) THE case of the opposite party No. 1 was that the petitioner being unable to evict the opposite party No. 1 from the house, started the proceeding under section 107 of the Code. The opposite party No. 2 did not enter appearance. The case against him was dropped by an order dated 16. 12. 80. On the basis of the prayer of the petitioner by an application on 20. 1. 81. for extending the period of enquiry on the ground of inability of the petitioner to complete his witnesses within the statutory period of limitation, the learned Magistrate extended the period of enquiry up to 30. 4. 81 by an order dated 20. 1. 81. The examination of witnesses was completed by 10. 4. 81. The case was fixed for hearing arguments on 27. 4. 81. Subsequently, on 9. 6. 81, the learned Magistrate directed the opposite party No. 1 to execute a bond of Rs. 500/- for keeping peace for a period of six months from the date on which such bond would be executed.
( 4 ) BEING aggrieved by this order, the opposite party No. 1 preferred an appeal, being Criminal Appeal No. 77 of 1981. The learned Additional Sessions Judge allowed the appeal and set aside the order dated 9. 6. 81 on holding that there was no special reason for extension of time for completion of the enquiry. He was of the opinion that the learned Executive Magistrate exceeded the period of limitation as the order dated 9. 6. 81 was a part of the enquiry within the meaning of section 116 Cr. P. C On facts, the learned Additional Sessions Judge held that the learned Executive Magistrate was not justified in directing the the opposite party No. 1 to execute the bond.
( 5 ) MR. Srivastava, appearing for the petitioner, has challenged these findings of the learned Additional Sessions Judge. His contention is that the learned Additional Sessions Judge acted illegally in holding that there was no special reason or extension of time for completion of the enquiry. Mr. Srivastava has submitted that the final order after enquiry on a petition under section 107 of the Code is not a part of the enquiry and hence, the order dated 9. 6. 81 of the learned. Executive Magistrate cannot be barred by limitation. He has further argued that the learned Additional Sessions Judge was not justified in holding that the learned Executive Magistrate did not act properly in directing the opposite party No. 1 to execu
