KATIRAM BEHERA AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioners are the delinquents of a proceeding under Section 107 of the Code of Criminal Procedure ('Code' for short) before the Executive Magistrate, Bhadrak. They filed a petition before him under Section 116(6) of the Code for termination of the proceeding, but by order dated 3.1.1986 the petition was rejected and two witnesses present for the first time in the proceeding on behalf of the prosecution were examined. The Petitioners then moved the learned Additional Sessions Judge, Bhadrak, but by the impugned order, the learned Judge refused to interfere.

(2.) THE facts of the case briefly narrated are that of the report of the Officer -in -Charge, Basudevpur Police Station, a proceeding was initiated against the Petitioners by drawing up a preliminary order under Section 107 of the Code on 14.2.1985 and they were directed to appear in person and show -cause why they should not be ordered to execute bonds of Rs. 500/ - with local sureties for the like amount to keep peace and public tranquillity in the area for a period of one year, Again by order dated 11.4.1985 on a further police report, the Petitioner's were directed to show -cause as to why they should not executa interim bonds of Rs. 500/ - with local sureties for the like amount to maintain peace in the local area for a period of six months. On 5.8.1985 the Assistant Public Prosecutor moved the Executive Magistrate to summon the witnesses and accordingly summons were issued to three witnesses, Thereafter, the matter was allowed to drag on, although on some occasions, such as 31.10.1985 and 21.11.1985 witnesses were present in the court, but were not examined. Ultimately on 3.1.1986 two of the witnesses were examined, cross -examined and were discharged.

(3.) WITH regard to the facts apparent on the face of the record, although the proceeding under Section 107 of the Code was initiated on 14.2.1985 and on 24.4.1985 the Petitioners showed cause, the Executive Magistrate began the enquiry by making attempt to test the allegations through two witnesses for the first time on 3.1.1986. In between, he did not record specific reasons to writing as envisaged in Section 116(6) so as to continue the proceeding beyond the period of six months. Therefore, on a bare reference to the above facts and on simple interpretation of Section 116(6) of the Code, after expiry of six months from the date of commencement, the proceeding stood terminated, Nevertheless, it is necessary to notice a few decisions. In : 50 (1980) C.L.T. 245, Sona Khan and Ors. v. State, a Full Bench of this Court interpreted Section 116(6) of the Code and held that inquiry in a proceeding under Section 107 of the Code starts when the Magistrate attempts in a legal way to put the allegations to test for finding out whether they are the facts. This decision was followed in, 60 (1985) C.L.T. 195, M. Bhimarao Dora v. Bhajaram Swain Ors., and on the facts it was held that the inquiry commenced when witnesses were first examined, In a later decision reported in : 1986 (I) O.L.R. 20, Bhikari Charan Tripathy and Ors. v. Jagabandhu Mishra and Ors., the principle laid down in the Fun Bench decision was also followed, but in the facts of that case it was held that the enquiry commenced when the witnesses were first summoned. The undertone of the Full Bench decision is that facts of cases will differ. In some cases without there being oral testimony, an enquiry can be held and concluded, yet there may be cases in which oral evidence will be necessary to test the correctness of the facts alleged against the delinquents. Nevertheless, an inquiry can be said to have commenced only when the Executive Magistrate applies his judicial mind and makes a sincere attempt to test the allegations brought against the delinquents.