MD. SAIFULLA Vs. MD. HANIF AND OTHERS

JUDGEMENT

(1.) In this revision application the petitioner has challenged the validity of an order dated 16th July, 1982 passed by the Executive Magistrate at Samastipur, by which the learned Magistrate dropped the proceeding under Sec. 107 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') against the members of the opposite party. The proceeding had arisen on a petition filed by the petitioner in the court of the Sub -divisional Magistrate, Samastipur, stating therein that the opposite party being variously armed had threatened the petitioner on various occasions and so, there was serious apprehension of breach of peace. The opposite parties was noticed to show cause. In pursuance of the notice they appeared and also filed their show cause before the Sub -divisional Magistrate. The learned Sub -divisional Magistrate, however, passed an order to enquiry into the case and transferred the proceeding to the court of Sri T.N. Sinha, Magistrate Ist Class, Samastipur for disposal. During the course of the enquiry 8 witnesses were examined on behalf of the petitioner including himself. The proceeding could not be closed within the statutory period of six months and keeping in view the continuance of apprehension of breach of peace, the learned Magistrate by an order dated 6th March, 1982 extended the period for two months in accordance with sub -sec. (6) of Sec. 116 of the Code. The period was however, further extended for one month by order dated 5th May, 1982. It appears that in view of the two extensions granted, the proceeding was to be completed by 4th June, 1982. Some witnesses on behalf of opposite parties were also examined on different dates before the court of enquiry. Even arguments were heard by the learned Magistrate on behalf of both parties. The judgment was however reserved. It was on 16th July, 1982 that the learned Magistrate dropped the proceeding mainly on the ground that the proceeding in question finally stood terminated on 4th June, 1982.

(2.) Learned Counsel for the petitioner Sri Arun Bihari Mathur has vehemently argued that the learned Magistrate after having recorded evidence on behalf of the respective parties and also having heard the argument within the statutory period or the extended period thereof could not have dropped the proceeding on the plea that it stood terminated. It has been contended that no period is prescribed for passing an order either under Sec. 117 or under Sec. 118 of the Code. Once the witness have been examined and argument heard within the prescribed period, it must be deemed as a completion of the enquiry and that the orders and judgment thereof can be delivered even beyond the stipulated period.

(3.) Learned Counsel for the opposite party Sri Parmeshwar Pd. Sinha on the other hand, has contended that delivery of judgment in a proceeding under Sec. 107 of the Code cannot be read in exclusion of the requirements of completion of enquiry within the stipulated period. In the instant case before the completion of the first six months of the enquiry the Magistrate concerned directed extension thereof on two dates for the conclusion of the enquiry and since it could not be concluded within the extended date fixed the learned Magistrate recorded an order that the proceeding due to lapse of time stood terminated.