MAHESH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Rashid Izhar, the learned counsel for the petitioners as also Mr. Rajesh Kumar Mishra, the learned counsel for Opp. Party No. 2 and Mr. Jharkhandi Upadhaya, the learned A.P.P.for the State.

(2.) THE petitioners who are the second party in a proceeding under Section 107 Cr.P.C. being Case No. 766 of 2005 are aggrieved by the order dated 12.1.2007 passed in Cr. Revision No. 32 of 2006/81 of 2006 by Sri Basant Kumar Dikshit, Presiding Judge, F.T.C. No. lV, Gaya, whereby while upholding the order of the learned Sub -Divisional Magistrate, Gaya dated 30.5.2006 passed in the aforesaid proceeding, he has dismissed the revision. The learned Magistrate had continued the proceeding and passed final orders after the passage of statutory period of six months as provided under Sub -section (6) of Section 116. Cr.P.C. It appears that the second party in pursuance of the notice issued by the Sub -Divisional Magistrate appeared before the Magistrate on 30.5.2005. During the pendency of the proceeding on 21.11.2005 the first party filed a petition for extending the statutory period as there was no likelihood of completion of the proceeding within the statutory period. No definite orders appears to have been passed by the learned Magistrate but he continued with the proceeding and eventually passed final orders on 31.5.2006 making the rule absolute and directing the second party to execute bonds to maintain peace for one year. A Revision being Cr. Revision No. 32 of 2006 was preferred before the Sessions Court and by order dated 12th January, 2007, the Presiding Judge, F.T.C. No. IV, Gaya dismissed the revision on the ground that since the proceeding under Section 107. Cr.P.C. had been completed, the aggrieved party was entitled to file an appeal under Section 373. Cr.P.C.

(3.) UNFORTUNATELY , I am not in a position to agree with either of the two courts below. Firstly, the learned Magistrate was remiss of the fact that in the proceeding under Section 107 Cr.P.C, statutory period of six months has been fixed within which the proceeding is required to be completed since it relates to emergency measures and in the event it is not possible to complete the proceeding within the stipulated statutory period under subsection (6) of Section 116 Cr.P.C., the Magistrate was empowered to extend the period for special reasons to be recorded in writing, failing which on the expiry of the said statutory period, the proceeding would automatically stand terminated. The learned Magistrate notwithstanding the filing of a petition by the first party either ignored the provisions of sub -section (6) of Section 116 Cr.P.C or was purposely remiss of the fact of what he was required to do.