DAMJI SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition is purported to be filed under Articles 226 and 227 of the Constitution of India invoking the inherent jurisdiction of this court under section 482 of the Criminal Procedure Code, for quashing and setting aside the order of extension of time for the conclusion of the chapter proceedings passed by the Special Executive Magistrate, Girgaon Division, Bombay dated 6.6.94 and further, the order passed by the Addl. Sessions Judge, Gr.Bombay in Revision Application No.328 of 1994 dated 8.8.1994.

(2.) THE petitioner is a resident of Bombay having owned some immovable property known as Bramhanwadi, situated at Dr.D.B.Marg, Bombay. This property consists of 300 rooms occupied by the tenants. It is submitted that this property has been purchased by the petitioner and his relatives in 1989 and by virtue of the sale transactions, he became the owner of said Bramhanwadi property alongwith other co-owners. It is submitted that because of some dispute regarding the right of tenancy and occupancy between the petitioner-owner and the tenants, counter complaints have been filed against each other. Some civil proceedings were also initiated against the tenants for eviction of the rental premises occupied by the tenants. It is submitted that some of the tenants have filed complaints against the petitioner in the police station. It also reveals from the petition that about 11 criminal complaints were alleged to have been filed during the period from 1989 to 1993. All the complaints were regarding non-cognizable offences. Because of this bunch of complaints, the Senior Inspector of Police initiated proceeding under Section 107 of Chapter-VIII of the Criminal Procedure Code and the prosecution has been lodged in the court of Special Executive Magistrate, Girgaum Division, Bombay. THE enquiry proceedings were initiated, on 19.11.1993. THEreafter, the show-cause notice was issued on 10th December, 1993 to the petitioner, calling upon him to appear before the court on 14th December, 1993. It is submitted that accordingly, the petitioner appeared before the court. THE case of the petitioner was registered as Court Case No.10 of 1993. On perusal of the report submitted by the Externment Officer of Dr. D.B.Marg Police Station, the learned Magistrate by his order dated 10th December, 1993, directed the petitioner to execute an interim bond under section 116 sub-section 3 of the Criminal Procedure Code. THE petitioner challenged that interim order by filing Criminal Writ Petition No.238 of 1994 and the execution of the interim order was stayed by the order of this court dated 23rd February, 1994. However, it reveals from the record that the said petition came to be disposed of as become infructuous on 15.4.94. THEreafter, the enquiry proceedings in the Court of Special Executive Magistrate was continued. It reveals from the Roznama that right from issuance of the show-cause notice i.e. 14.12.93 to 19.5.94, no evidence came to be recorded by the learned Magistrate and the case was being adjourned from time to time for the reason best known to the learned Magistrate. It is submitted that as the enquiry could not be completed within six months under sub-section 7 of Section 116 of the Criminal Procedure Code and the Statutory time was to be expired, the externment officer moved with an application on 6.6.95 for extension of time for further six months for completing the enquiry. It is submitted that the said application (Exh.'D') purported to be submitted to the Court for extension of time behind the back of the petitioner-opponent and it also reveals from the record that the learned Magistrate was pleased to pass an order behind the back of the petitioner on the same day, extending the time for six months further for completing the enquiry under section 116 of the Criminal Procedure Code. It is submitted that the petitioner was not supplied the copy of the said application presented by the Senior Police Inspector for extension of time. Further, it is submitted that the learned Magistrate has not heard the petitioner-opponent before passing the impugned order. It is submitted that the petitioner filed an application on 15th June, 1994 for placing on record the position of automatic termination of the enquiry on the expiry of 6 months i.e. within the statutory period, but no order was passed on that application. It is further submitted that on 22nd June, 1994, the petitioner submitted another application, requesting the certified copy of the order passed on the application dated 15th June, 1994 and the Roznama of the proceedings but it was not supplied to him and on utter surprise, he received a copy of the order dated 6.6.94 regarding the extension of time on 23.6.94. THEreupon immediately, the petitioner presented an application to the court on 23.6.94 (Exh.'H') stating that the copy of Roznama demanded by the petitioner has been denied to him and also stating that despite five adjournments i.e. on 6.6.94, 8.6.94, 11.6.94, 16.6.94 and 22.6.94, no order of extension of time was given to the petitioner. It reveals from the record that application dated 23.6.1994 presented by the petitioner in the court does not figure in the Roznama. It is submitted that thereafter, the petitioner filed a revision application in the Court of Session, for Greater Bombay under section 116(7) of the Criminal Procedure Code. It was the specific allegation of the petitioner therein that the order regarding extension of time dated 6.6.94 was passed without hearing the petitioner and in support of this averment, the learned advocate Mr. Merchant who appeared on behalf of the petitioner-opponent before the Special Executive Magistrate, filed an affidavit inter alia stating therein that as the chapter proceeding's time was over on 10.6.94, till 14.6.94, the learned Special Executive Magistrate has not passed the order of extension and as the six months time expired on 10.6.94, the chapter proceedings automatically came to an end from 10.6.94. THErefore, he filed application on 15.6.94. It is further stated in para 9 of his affidavit that no application for extension of time for further six months was presented to the learned Magistrate on 6.6.94 by the Senior Inspector of Police, D.B. Marg Police Station. He has also denied that the learned Special Executive Magistrate heard him from 6.6.94. THE revision application No.328/94 came to be rejected by the order of the learned Sessions Judge dated 8th August, 1994. Hence this writ petition under Article 227 of the Constitution of India and also purported to be u/s.482 of Criminal Procedure Code, invoking the inherent jurisdiction of this court.

(3.) IT is not possible for me to accept the arguments of A.P.P.. The crucial point involved in this petition is regarding the actual date of initiation of proceeding under Chapter-VIII. Section 116(6) reads as under :- "The enquiry 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."