SANT LAL SAHNI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Arts. 226 and 227 of the Constitution of India for quashing Annexure 1 which is an order dated 18.2.79. passed in Miss. Case No. 104 of 1979 by the Sub- Divisional Magistrate, Patna City. From this order it will appear that on the receipt of a report from the officer-in-charge of Chawk police station forgordin the petitioner Sant Lai Sahni under Sec. 41/109 of the Code of Criminal Procedure, the learned Sub-Divisional Magistrate remanded the petitioner to Jail custody until 5.3.79.

(2.) The contention of the learned counsel appearing on behalf of the petitioner is that the Sub-Divisional Magistrate, Patna City, could not remand the petitioner to Jail custody under Sec. 41/109 of the Code of Criminal Procedure, Sec.41(2) of the Code Provides that any officer-in-charge of a police station may arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in Sec. 109 or Sec. 110 of the Code. Section 109 proves that when a Judicial Magistrate of the first class receives information that there is within his local jurisdiction a person taking precaution to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may require such person to show cause why he should not be ordered to execute a bond for his good behaviour for a period not exceeding one year. The power to require any person to show cause under Sec. 109 of the Code is clearly vested in a judicial Magistrate. The power cannc t be exercised by an Executive Magistrate or a Sub-Divisional Magistrate. The next contention of the learned Counsel appears to be equally well founded. The impugned order was made on 18.2.79, Sec. 116 (6) of the Code provides that any enquiry under Secs. 107, 108, 109 and 110 of the Code must be completed within a period of six months from die date of its commencement If such enquiry is not so completed, the proceedings on the expiry of the said period of six months shall stand terminated unless for special reasons to be recorded in writing, the Magistrate otherwise directs. It further provided that where any person has been kept in detention pending such inquiry, the proceeding against that person shall stand terminated on the expiry of a period of six months of such detention. In either case the period of six months has expired long before and this proceeding cannot be continued any further.

(3.) A counter affidavit has been filed on behalf of the State, in which it has been stated that the petitioner is an accused in several cases Under Sec. 395 of the Indian Penal Code and other sections. We are not concerned here with those cases. So far as Misc. Case No. 104/79 pending in the Court of the Sub-Divisional Magistrate is concerned, we are of the opinion that this proceeding cannot be continued. Annexure '1' is therefore, quashed.