An order under Sub-Section (3) for furnishing of bond can be made only after the commencement of the enquiry and before its completion provided the allegations forming the basis of the parent proceeding or the allegations leading to the necessity for furnishing of interim bonds are tested by inquiry and judicial mind is applied for ascertaining whether there is prima facie justifiable basis for such a direction.

JUDGEMENT

R. N. Misra, J. :- Members of the second party in a proceeding under Section 107 of the Code of Criminal Procedure have moved this Court under Section 401 of the Code for setting aside the direction of the Executive Magistrate calling upon them to furnish interim bonds.

2. When this revision application was placed before the learned Chief Justice, he passed the following order :

"Let this case be heard by a Full Bench for examining the correctness of the decision reported in 44 Cut LT 381 : (1978 Cri LJ 124) (Uchhaba Jena v. Kunjahehari Routray)."

When the hearing began, before us Mr. Dhal for the petitioners and Mr. R.C. Patnaik appearing for some of the members of the first party indicated that neither of them wanted the correctness of the Bench decision to be considered by a Full Bench. Mr. Dhal further pointed out that the question that arises for consideration in the revision application has no relationship with anything decided by his Court in the Division Bench decision and as such for the disposal of the present revision application examination of the correctness of the Bench decision is not relevant.

3. In the reported decision referred to above, two questions have been examined. In the absence of formulation of any specific point by the learned Chief Justice, counsel could not pinpoint their arguments to any particular aspect but since reference has been made under Rule 12 of Chapter III of the Court's Rules, we propose to examine the correctness of the entire decision. In that are case proceeding under Section 107 of the Code had been dropped on the ground that more than six months had elapsed since its commencement. On the self-same day, an application was made to the learned Magistrate for initiating a fresh proceeding and on that basis a fresh proceeding under Section 107 was registered. Therein. furnishing of interim bond was directed. One of the grounds advanced for vacating the order for interim bond was that by the date of the order, more than six months had elapsed from the date of commencement of inquiry and, therefore, the proceeding Should not have been continued and an over for furnishing of interim bond was not called for. As the Sessions Judge when moved declined to interfere and at the unsuccessful petitioner's instance a second revision did not lie in view of the bar in the Code, the extraordinary jurisdiction of the Court was invoked. A separate application for quashing of the order for furnishing of interim bonds in exercise of inherent power was also filed.

The Division Bench first took into consideration whether inherent power under Section 482 of the Code could be invoked for quashing the direction when the Sessions Judge had declined to interfere and a second revision was barred. It chose to follow the ratio of the decision of this Court in the case of Deena Nath Acharya v. Daitari Charan Patra, (1975) 41 Cut LT 656 : (1975 Cri LJ 1931). The second question for consideration was whether an interim bond could be directed to be furnished before the inquiry had commenced. The court following the ratio of the Supreme Court decision in Madhu Limaye v. Ved Murti, AIR 1971 SC 2481 : (1971 Cri LJ 1715) held that the direction for furnishing of interim bond could be made only after the commencement and before completion of the inquiry. It next examined the question as to from what date the period of six months stipulated in Sub-Section (6) of Section 116 of the Code has to be calculated and observed :

"...... In view of the authorities referred to above, we are inclined to agree that the inquiry referred to in Sub-Section (6) is with reference to the stage when the Magistrate, after both parties appear before him, proceeds to inquire with reference to the evidence as to whether the delinquencies alleged are established......"

It also took the view that the inquiry contemplated in Sub-Sections (3) and (6) must refer to the same process.

4. We shall first refer to the provisions of Section 116 of the Cod