BHIKARI CHARAN TRIPATHY Vs. JAGABANDHU MISHRA

JUDGEMENT

(1.) The petitioners have invoked the inherent jurisdiction of Court to quash a proceeding under Sec 107 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') pending against them on the ground that by operation of Sub -Section (5) of Section 116 of the Code. On expiry of six months from the date of commencement of inquiry, the proceeding stood terminated. The petitioners in fact carried a revision to the learned Sessions Judge in Criminal Revision No. 180 of 1984 and the learned Sessions Judge rejected the same on a finding that the Magistrate has passed an order on 3.1.1984 allowing continuance of the proceeding beyond the statutory period.

(2.) MR . Mohanty appearing for the petitioners contends that Sub -Section (6) of Section 116 is mandatory in nature and would apply propmo v. gre if six months period lapses from the date of commencement of an inquiry and the inquiry is not completed. It is no doubt permissible for a Magistrate to record in writing, for special reasons, to continue the proceeding but that must be also done before the proceeding lapses. According to Mr. Mohanty, the inquiry in the present case commenced on 2.4.1983 and, therefore, by operation of law, the proceeding must be hold to have been dropped on 2.10.1983. The so -called extension made by the Magistrate on 3.1.1984 would not revive a proceeding which must be deemed to have been dropped on 2.10.1983. The learned counsel for the opposite parries, on the other hand, contends that the inquiry in this case commenced on 5.7.1983. the date on which the! earned Magistrate after applying his judicial mind issued summons to the members of the first party for evidence and, therefore. before expiry of six months on 3.1.1984, the learned Magistrate has ordered for continence of the proceeding in accordance with sub -Section (o) of Section 116 and consequently the proceeding has not lapsed. The moot question therefore as to when the inquiry commenced.

(3.) THOUGH Mr. Mohanty's contention gains full support from the aforesaid Patna decision yet I am bound by the Full Bench decision of this Court in the case of Sona Khan and Ors. v State 50 (1980) C. L. T., 245. The aforesaid Full Bench was constituted to examine the correctness of the decision in Uchhaba Jena and Ors. v. Kunjabehari Rontray and Anr., 44 (1977) C. L. T. 381 : 1973 C. L. J , 124 , the very case which was differed to by the Patna High Court In Paragraph 8 of the Full Bench decision this Court held: ' ... ... We agree with the Division Bench decision in Uchhaba Jena's case that its view that 'commencement of inquiry in Sub -Sections (3) and (6) refers to the same stage' is correct.' It has been held in the Full Bench judgment of this Court: 'The next question for consideration is as to when inquiry commences for the purpose of computing the period stipulated under Sub -Section (6) of Section 116 of the Code Commencement of inquiry is a concept common Sub -Sections (1) and (6). The mandate in Sub -Section (I) is that after appearance of the delinquent, the order has to be read out and inquiry has to follow. The provision itself is preventive and is intended to meet emergent situations. The purpose is to maintain public peace and tranquillity Parliament has held out a mandate that the enquiry must be expeditious. As pointed out in Madhu Limaye's case, A. I. R 1971 S. C. 2481, it is not open to the Magistrate to defer the inquiry and call for an interimbond. As we have already indicated commencement of inquiry starts when the Magistrates in a legalway to put the allegations to test for finding out whether they are the facts. Both Sub -Section (3) and (6) of Section 116 refer to this stage as the commencement or inquiry. The supreme court rightly pointed out in Madhu Limaye's case, A I. R 1971 S. C. 2481 that it is not an inquiry within an inquiry. Ordinarily, the interim bond is asked for the allegations forming the foundation for the basic proceeding. There may be instances where fresh allegations also come up and become material for an interim bond. Yet commencement of inquiry in Sub -Section (3) and (6) in our opinion, refers to the same stage. It is one of the well -accepted rules of interpretation that when the same phrase occurs in the same section at different places and there is no indication of legislative intent that a different meaning is intended thereby, both the phrases have to be given the same meaning.........' This Court also held in the said case that the mandate of the law was that the inquiry must commence and the Magistrate must proceed to as certain the truth of the allegations by application of his judicial mind and look for materials which would substitute allegations into facts. The .inquiry contemplated is an acceptable legal process by which allegations can be converted into facts. What that process would be should be left to the discretion of the Magistrate with reference to the facts of each case, but he must adopt an acceptable judicial method for testing the allegations and recording findings of tact with reference to acceptability or otherwise of such allegations. In view of the aforesaid authoritative pronouncement in the Full Bench decision of this Court, it would not be open for me to follow the Full Bench decision of the Patna High Court on which Mr. Mohanty, the learned counsel for the petitioners places reliance.