MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) AN interesting question has been argued by counsel on both sides in in this case. That concerns the scope of S. 116 (6) of the Code of criminal Procedure. S. 107 of the Code enables an Executive Magistrate to require any person to show cause why he should not be ordered to execute a bond for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit. That is when the Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and when the magistrate is of the opinion that there is sufficient ground for proceeding. If the order is addressed to a person present in court, the Magistrate is to issue a summons requiring such person to appear, or, when such person is in custody, issue a warrant directing the officer in whose custody he is, to bring him before the court. When such an order has been served consequent upon which the accused appears or is brought to court, the Magistrate is to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. From their very nature the proceedings are not to be protracted and the person against whom such proceedings are taken is entitled to expect an early quietus to such proceedings. To this end provision is made in sub-section 6 of S. 116. That sub-section requires that the inquiry under S. 116 shall be completed within a period of six months from the date of the commencement of such inquiry. In case such inquiry is not completed, the proceedings shall, on the expiry of the period of six months, stand terminated, unless, for special reasons to be recorded in writing, the magistrate otherwise directs. The power of extension beyond the period of six months is not available in the case of any person kept in detention pending such inquiry. Therefore in the case of a person who is not in detention pending the inquiry the normal period of lite of the inquiry is six months except in cases where it is extended by order in writing recording special reasons. The cessation after the termination of the expiry of the period of six months is automatic and takes effect merely by the lapse of the period. The question for decision before me is whether the Magistrate would be competent to extend the period of six months once the period of six months has expired or whether the power to order extension has to be exercised within the said period of six months. It may happen that the court may not be moved by any party to extend the period of six months before that period expires or the court may fail to notice that the period of six months is about to expire. It may happen that this comes to the notice of the court only when the person against whom proceedings are taken moves the court seeking that the termination be recorded since the period had expired. Is it open to the court then to extend the period by an appropriate order, indicating sufficient reasons in justification of the extension? The counsel for the petitioner before me contends that the magistrate has no power to extend the period when once the period of six months is over and that has happened in this case with the consequence that the proceedings shall not continue. The counsel for the State, on the other hand, urges the view that the period could be extended by the Magistrate even after the expiry of six months so long as the proceedings are pending in the sense no formal order closing the proceedings has been passed.

(2.) THE plain answer to the question, according to me, depends upon reading sub-section 6 of S. 116 to determine the time the proceedings terminate by reason of the expiry of the period and how it terminates. THE sub-section with the proviso reads as under: " (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. " When the inquiry is completed within the period of six months no question of extension arises. Automatically the proceedings are terminated. Where the inquiry is not completed the sub-section provides that the proceedings stand terminated on the expiry of the period THE term 'stand terminated' emphasises the idea that without any order of court there is a cessation of the proceedings, a termination which brings to close the pendency of the proceedings in court. Thus from that day such proceedings are not on the file and if any further proceedings are to be taken they have necessarily to to be as fresh proceedings and not as continuation. Assuming that the power of extension could be exercised beyond the date of such termination, the result would be to assume that the power of reviving proceedings which are dead and no longer on the file is conferred on the court, an assumption not warranted by the plain language of the Section On a plain reading of S. 116 6) I would assume that it is only proceedings pending and alive that are capable of being extended. In this view it appears to be clear to me that if the Magistrate desires to exercise the power under S. 116 (6) that must be before the expiry of the period of six months. He would have no authority to exercise any power in that behalf once the proceedings stand terminated by reason of efflux of time.

(3.) AKIN to the provision in S. 116 (6) is S. 110 (2) of the customs Act which sub-section reads: " (2) Where any goods are seized under sub-S. (1) and no notice in respect thereof is given under Cl. (a) of S. 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they are seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months". Whether the power of extending the period contemplated by the proviso to subsection [2] could be exercised after the expiry of the period of six months was the question that was posed before this court and on that question my learned brother, Isaac J. has spoken this in Karthikeyan v. Collector of Customs (1976 KLT. 537): "in my view, no question of extension of time can arise after the time has expired When the time expires, the person from whose possession the goods were seized, gets the right for the return of the goods. The extension can only be before that right accrues; and if the time is extended, the right does not accrue. " The High Court of Punjab and Haryana has in the decision reported in Tarasem Kumar v. Collector, Central Excise (AIR. 1972 Punjab and haryana 444) considered the scope of S. 110 (2) of the Customs Act and observed as follows: "the owner of the goods can be deprived of the right to get them back only if the period of six months is extended before its expiry so that the retention of the possession of those goods by the Customs authorities is continuous under the statutory provisions and the order extending the time passed by the appropriate authority. Once that period is allowed to expire without being extended, a valuable right to claim their return accrues to the owner of goods, which defeats the right of the customs authorities to retain possession of those goods after the expiry of six months It is therefore, obligatory on the Collector of Customs to pass an order extending the period of six months before its expiry and if once an extension of time is allowed and another extension is required, the order of further extension must also be passed before the expiry of the extended period so that the total period including extensions from the date of seizure of the goods does not exceed one whole year. " Though this question has been noticed by the Supreme court on occasions, as far as I could see on no occasion did the court pronounce on the scope of S. 116 (6) or any provision akin to the aforesaid sub-section. The decisions of the Supreme Court in Asst. Collector, Customs v. Malhotra (AIR. 1972 SC. 689) am Lokenath Tolaram v. B. N. Ranguani (AIR. 1974 sc. 150) may be adverted to in the context In these circumstances, the petition is allowed The proceedings had lived its full life in the court below and on the expiry of the period of six months it should be taken to be dead by reason of the provisions in S. 116 (6) of the Code. It is so declared so that the proceedings will stand closed Allowed. . .