Assadullah Shah and Others vs State

Y.P. Nargotra, J.—On the application of one Syed Jawahira Bagum forwarded to Ld. Chief Judicial Magistrate Budgam a police report u/s

107 Cr. PC came to be instituted before the Ld. Executive Magistrate Bedgam against the petitioners in which the petitioners were summoned, On

1st of August 2001, petitioner No. 1 appeared and under took to produce the other petitioners but they were not produced and then on 12th of

November 2001 the Ld. Executive Magistrate exempted all the petitioners from appearance in the court except petitioner No. 1. The petitioner

No. 1 was directed to file objections, and this way proceedings continued. Till 29 the of June 2002 when the petitioners approached the court of

Ld. Section Judge Budgam for invoking revisional jurisdiction u/s 435 Cr. P.C. Ld. Sessions Judge called for the record of the case and after

hearing the parties has made this reference with the recommendation that the proceedings presently pending before the Inquiry Magistrate be

quashed and he be asked to proceed afresh in the matter, after drafting an order u/s 112 Cr. P.C. and confronting the petitioner/respondents with

the substance thereof etc. With the further direction to conclude the inquiry within a period of two months because of the delay already caused.

Ld. Session Judge after examining the record of the case came to the conclusion that Ld. Executive Magistrate had not followed the mandatory

provisions of Sections 112, 113, 115 and 117 Cr. P.C. and therefore the proceedings were being conducted by the Ld. Executive Magistrate in

an irregular and illegal manner. LC for the parties don't dispute the finding returned by the Ld. Session Judge. However, the LC for the petitioner

submits that the recommendation made by Ld. Session Judge that Inquiry officer be asked to proceed afresh in the matter should not be accepted

in view of the provision contained in Section 117(6) Cr. P.C. He has argued that proceedings u/s 107 cannot proceed beyond a period of one

year, Sub-section (6) of Section 117 reads as follows:

6 The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so

completed, the proceedings under this chapter shall, on the expiry of the said period stand terminated unless, for special reasons to be recorded in

writing the Magistrate, otherwise directs:

Provided further that where any person has been kept in detention pending such inquiry the proceeding against that person, unless terminated

earlier, shall stand terminated on the expiry of a period of six months of such detention.

I am in agreement with the LC for the petitioners. Under the provisions contained in Sub-section 6 of Section 117 proceedings u/s 107 cannot

continue beyond a period of one year, in case the person against whom the proceedings have been initiated has not been kept in detention. In the

present case the petitioners were not kept in detention and the period of one year has expired, therefore proceedings cannot be allowed to

continue and as such recommendation of Ld. Session Judge in this behalf cannot be accepted. The reference is therefore partly allowed and

proceedings initiated against the petitioners u/s 107 Cr. P.C. are hereby quashed. By accepting reference, in this behalf a recommendation with

regard to conducting of the proceedings afresh is rejected.