MUHAMMEDKUTTY Vs. STATE OF KERALA

JUDGEMENT

(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 Mathu-kutty 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:-

(3.) Before going to the contentions raised, we will come to the definition of 'inquiry'. Section 2 (g) defines 'inquiry' as follows :