Chitranjan Choudhary and Ors Vs. The State of Jharkhand and Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/65213
CourtJharkhand High Court
Decided OnSep-10-2015
AppellantChitranjan Choudhary and Ors
RespondentThe State of Jharkhand and Ors
Excerpt:
in the high court of jharkhand at ranchi cr. revision no. 226 of 2015 1. chitranjan choudhary 2. umesh choudhary, both sons of late chet lal choudhary 3. sunil choudhary, son of chitranjan coudhary 4. ajay choudhary, son of umesh choudhary 5. sita ram prasad, son of nun mani mahto 6. punit mahto, son of late guli choudhary 7. pokhan choudhary, son of late dhanuki choudhary 8. ramchander choudhary, son of dashu choudhary, all residents of village & po- chuglamo, ps barkatha, district- hazaribagh, except no.5 resident of village & po barkangango, ps barkatha, district- hazaribagh …. … petitioner(s) -v e r s u s- 1. state of jharkhand 2. babu lal paswan, son of late bihari paswan 3. mohini devi, wife of babu lal paswan o.p.nos. 2 and 3 are residents of village & po- chuglamo, ps barkatha, district- hazaribagh …. ... opposite parties coram: - hon’ble mr. justice ravi nath verma for the petitioner(s) : - m/s. sarju prasad, sahdeo choudhary & shiv prasad, advocates for the state : - mr. mukesh kumar, a.p.p. for o.p. nos. 2 and 3 :- mr. suresh kumar, advocate coram: hon’ble mr. justice ravi nath verma ----------- c.a.v. on:24. 06/2015 pronounced on:10. 09/2015 the petitioners have questioned the legality of the judgment dated 30.01.2015 passed by additional sessions judge-x , hazaribagh in criminal appeal no. 145 of 2013 affirming the order dated 02.08.2013 passed by sub-divisional magistrate, barhi in m. case no. 260 of 2012 directing the petitioners to execute a bond of rs.5,000/- each with two sureties of like amount each for keeping peace for a period of one year under section 117 of the code of criminal procedure (in short “the code”).2. the solitary question, which has come up for consideration by this court, is whether non-recording of a special reason for extending the period of inquiry as provided under sub- section (6) of section 116 of the code in a proceeding under section 107 of the code amounts to contravention of the mandatory 2 provision of the code and order extending period of inquiry and the subsequent orders are vitiated and without jurisdiction.3. it is not necessary to give details of the facts of the case which resulted in the initiation of the proceeding under section 107 of the code but for better appreciation, a brief relevant fact, is stated hereinbelow: at the instance of the present opposite party no.2 babu lal paswan, a proceeding under section 107 of the code was initiated by order dated 21.09.2012 against the petitioners, who were the second party in that proceeding and after notices, the petitioners appeared and filed their show-cause. similarly the present opposite party nos. 2 and 3 also filed their show causes on 28.02.2013. whereafter, the opposite party nos. 2 and 3 examined their witnesses, which were closed on 31st july, 2013 and the case was adjourned to 02.08.2013 for the evidences by the petitioners. since, the petitioners had appeared in the case on 05.10.2012 on which date, the allegations were explained to them, the inquiry had to be concluded on or before 04.04.2013 within the statutory period of six months as provided under section 116 of the code but the court below after extending the time of inquiry finally concluded the proceeding by order dated 02.08.2013 and directed the petitioners to execute bond of rs.5,000/- each with two sureties of like amount each for keeping peace for a period of one year as indicated above. the petitioners being aggrieved by the said order, preferred an appeal before the learned additional sessions judge-x hazaribagh, who vide order dated 30th january, 2015 affirmed the order passed by the learned sub- divisional magistrate and dismissed the appeal.4. learned counsel for the petitioners seriously contended that the two courts below without following the mandates of sub- section (6) of section 116 of the code and without assigning any special reason extended the period of six months. hence, the proceeding before the sub-divisional magistrate was itself bad in law 3 and without jurisdiction and the subsequent order is also not sustainable in the eye of law.5. contrary to the aforesaid submissions, learned counsels appearing for the opposite party and for the state contended that after hearing both the parties and considering the evidences available on record, the court of sub-divisional magistrate decided the proceeding under section 107 of the code which was rightly affirmed by the appellate court. it was also submitted that this court sitting in revision has a limited jurisdiction and the statutory period of six months was extended before its expiry on 04.04.2013. hence, there is no ground to interfere in the order impugned.6. i have gone through the entire order-sheet of the court of sub-divisional magistrate and the judgment of the appellate court but unfortunately, i do not agree with the findings recorded by the two courts. the learned magistrate, as it appears from the order- sheet, did not consider the mandates of section 116 of the code as in the proceeding under section 107 of the code, statutory period of six months has been fixed within which the proceeding is required to be completed. if at any time before the expiry of statutory period, the court is of the opinion that it is not possible to complete the proceeding within that stipulated period, the magistrate is empowered to extend the period for a special reason to be recorded in writing, failing which on the expiry of the said period, the proceeding would automatically stand terminated. the learned magistrate notwithstanding the filing of a petition by the first party either ignored the provision of sub-section (6) of section 116 of the code or purposely remiss of the fact of what he was required to do. this court sitting in revision is required to satisfy itself as to correctness, legality or propriety of any finding or order recorded in any proceeding by such inferior court. the learned appellate court also did not consider the fact that the proceeding under section 107 of the code continued beyond the statutory period without recording any special reasons for extending the said period. apparently, the 4 appellate court only looked into the facts of the case and failed to consider the mandates of section 116 of the code.7. in view of the above discussion, since the proceeding before the sub-divisional magistrate automatically terminated because of non-compliance of the mandates, the continuation of the said proceeding was without jurisdiction and nonest in the eye of law.8. in the result, this revision application is, accordingly, allowed. the impugned orders passed by the learned sub-divisional magistrate, barhi and the subsequent order of appellate court are, hereby, set aside. however, this order will not prevent the learned sub-divisional magistrate or the executive magistrate from initiating another proceeding if the situation so justifies. (r.n. verma, j.) jharkhand high court, ranchi dated, 10th september, 2015 ritesh/n.a.f.r.
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 226 of 2015 1. Chitranjan Choudhary 2. Umesh Choudhary, both sons of Late Chet Lal Choudhary 3. Sunil Choudhary, son of Chitranjan Coudhary 4. Ajay Choudhary, son of Umesh Choudhary 5. Sita Ram Prasad, son of Nun Mani Mahto 6. Punit Mahto, son of Late Guli Choudhary 7. Pokhan Choudhary, son of Late Dhanuki Choudhary 8. Ramchander Choudhary, son of Dashu Choudhary, All residents of village & PO- Chuglamo, PS Barkatha, District- Hazaribagh, Except no.5 resident of village & PO Barkangango, PS Barkatha, District- Hazaribagh …. … Petitioner(s) -V e r s u s- 1. State of Jharkhand 2. Babu Lal Paswan, son of Late Bihari Paswan 3. Mohini Devi, wife of Babu Lal Paswan O.P.nos. 2 and 3 are residents of village & PO- Chuglamo, PS Barkatha, District- Hazaribagh …. ... Opposite Parties CORAM: - HON’BLE MR. JUSTICE RAVI NATH VERMA For the Petitioner(s) : - M/s. Sarju Prasad, Sahdeo Choudhary & Shiv Prasad, Advocates For the State : - Mr. Mukesh Kumar, A.P.P. For O.P. Nos. 2 and 3 :- Mr. Suresh Kumar, Advocate CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA ----------- C.A.V. ON:

24. 06/2015 PRONOUNCED ON:

10. 09/2015 The petitioners have questioned the legality of the judgment dated 30.01.2015 passed by Additional Sessions Judge-X , Hazaribagh in Criminal Appeal No. 145 of 2013 affirming the order dated 02.08.2013 passed by Sub-Divisional Magistrate, Barhi in M. Case No. 260 of 2012 directing the petitioners to execute a bond of Rs.5,000/- each with two sureties of like amount each for keeping peace for a period of one year under Section 117 of the Code of Criminal Procedure (in short “the Code”).

2. The solitary question, which has come up for consideration by this Court, is whether non-recording of a special reason for extending the period of inquiry as provided under sub- section (6) of Section 116 of the Code in a proceeding under Section 107 of the Code amounts to contravention of the mandatory 2 Provision of the Code and order extending period of inquiry and the subsequent orders are vitiated and without jurisdiction.

3. It is not necessary to give details of the facts of the case which resulted in the initiation of the proceeding under Section 107 of the Code but for better appreciation, a brief relevant fact, is stated hereinbelow: At the instance of the present opposite party no.2 Babu Lal Paswan, a proceeding under Section 107 of the Code was initiated by order dated 21.09.2012 against the petitioners, who were the second party in that proceeding and after notices, the petitioners appeared and filed their show-cause. Similarly the present opposite party nos. 2 and 3 also filed their show causes on 28.02.2013. Whereafter, the opposite party nos. 2 and 3 examined their witnesses, which were closed on 31st July, 2013 and the case was adjourned to 02.08.2013 for the evidences by the petitioners. Since, the petitioners had appeared in the case on 05.10.2012 on which date, the allegations were explained to them, the inquiry had to be concluded on or before 04.04.2013 within the statutory period of six months as provided under Section 116 of the Code but the court below after extending the time of inquiry finally concluded the proceeding by order dated 02.08.2013 and directed the petitioners to execute bond of Rs.5,000/- each with two sureties of like amount each for keeping peace for a period of one year as indicated above. The petitioners being aggrieved by the said order, preferred an appeal before the learned Additional Sessions Judge-X Hazaribagh, who vide order dated 30th January, 2015 affirmed the order passed by the learned Sub- Divisional Magistrate and dismissed the appeal.

4. Learned counsel for the petitioners seriously contended that the two courts below without following the mandates of sub- section (6) of Section 116 of the Code and without assigning any special reason extended the period of six months. Hence, the proceeding before the Sub-Divisional Magistrate was itself bad in law 3 and without jurisdiction and the subsequent order is also not sustainable in the eye of law.

5. Contrary to the aforesaid submissions, learned counsels appearing for the opposite party and for the State contended that after hearing both the parties and considering the evidences available on record, the court of Sub-Divisional Magistrate decided the proceeding under Section 107 of the Code which was rightly affirmed by the appellate court. It was also submitted that this court sitting in revision has a limited jurisdiction and the statutory period of six months was extended before its expiry on 04.04.2013. Hence, there is no ground to interfere in the order impugned.

6. I have gone through the entire order-sheet of the court of Sub-Divisional Magistrate and the judgment of the appellate court but unfortunately, I do not agree with the findings recorded by the two courts. The learned Magistrate, as it appears from the order- sheet, did not consider the mandates of Section 116 of the Code as in the proceeding under Section 107 of the Code, statutory period of six months has been fixed within which the proceeding is required to be completed. If at any time before the expiry of statutory period, the Court is of the opinion that it is not possible to complete the proceeding within that stipulated period, the Magistrate is empowered to extend the period for a special reason to be recorded in writing, failing which on the expiry of the said period, the proceeding would automatically stand terminated. The learned Magistrate notwithstanding the filing of a petition by the first party either ignored the provision of sub-section (6) of Section 116 of the Code or purposely remiss of the fact of what he was required to do. This Court sitting in revision is required to satisfy itself as to correctness, legality or propriety of any finding or order recorded in any proceeding by such inferior court. The learned appellate court also did not consider the fact that the proceeding under Section 107 of the Code continued beyond the statutory period without recording any special reasons for extending the said period. Apparently, the 4 appellate court only looked into the facts of the case and failed to consider the mandates of Section 116 of the Code.

7. In view of the above discussion, since the proceeding before the Sub-Divisional Magistrate automatically terminated because of non-compliance of the mandates, the continuation of the said proceeding was without jurisdiction and nonest in the eye of law.

8. In the result, this revision application is, accordingly, allowed. The impugned orders passed by the learned Sub-Divisional Magistrate, Barhi and the subsequent order of appellate court are, hereby, set aside. However, this order will not prevent the learned Sub-Divisional Magistrate or the Executive Magistrate from initiating another proceeding if the situation so justifies. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 10th September, 2015 Ritesh/N.A.F.R.