IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 Crl.MC.No. 2828 of 2004() ------------------------- M.C.239/2002 OF EXECUTIVE MAGISTRATE, THIRUVANANTHAPURAM C.C.772/2000 OF THE JFCM-II, NDUMANGAD PETITIONER: 5TH ACCUSED ----------------------- ANIL KUMAR S/O. CHANDRASEKHARAN NAIR, SAM NIVAS, OHM NAGAR, MANIKANTESWARAN, PEROORKKADA. BY ADV. SRI.M.BALAGOVINDAN SRI.SASITH.M.R RESPONDENTS: STATE & COMPLAINANT -------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, VATTIYOORKAVU POLICE STATION. BY P.P. SRI AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 5-6-2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.12450/2004 IN CRL.M.C.NO.2828/2004 DISMISSED. 5-6-2008. SD/- V.K.MOHANAN, JUDGE. V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C. No.2828 of 2004 ---------------------------------------------- Dated, 5th June, 2008. ORDER This petition is filed under Section 482 of Cr.P.C. by the 4th accused in crime No.63/2000 of Vattiyoorkavu police station with a prayer to quash the proceedings in M.C 239/2002 pending before the court of Executive Magistrate, Thiruvananthapuram. 2. By producing Annexure A summons issued by the Executive Magistrate of Thiruvananthapuram, it is stated that all proceedings adopted in M.C.239/2002 became illegal after the expiry of 6 months from the date of commencement of the proceedings unless special reasons are recorded. Counsel for the petitioner submitted that Annexure A summons was issued on 31-7-2002 by which the petitioner was asked to attend and to answer to question under section 107 of Cr.P.C. and he was required to appear in person or by pleader before the Executive Magistrate of Thiruvananthapruam at 2.30 p.m. on 17-8-2002. According to the petitioner, accordingly, he had engaged an advocate in terms of anenxure A summons and the case was CRL.M.C.No.2828/04 -:2:- subsequently adjourned to 19-9-2002 and thus, at the time of filing this M.C., the case stands adjourned to 20-10-2004. It is stated by the petitioner that except Annexure A, no other documents or proceedings received from the Executive Magistrate. It is also stated that the petitioner apprehends that the 2nd respondent has given a report to the Executive Magistrate to initiate action against the petitioner and, probably such a report was given only for the reason that he had involved in criminal case C.C.772/2007 which was pending before the Judicial First Class Magistrate-II, Nedumangad. The above case was instituted upon a police report in crime No.146/99 of Vattiyoorkavu police station for the offences punishable under sections 143, 147, 148, 149, 341, 324, 326, 447, 427 and 379 of IPC. It is the specific case of the petitioner that the Executive Magistrate has taken proceedings under section 107 for the sole reason that the petitioner had involved in the above case and on the basis of the report furnished by the Sub Inspector of Police, Vattiyoorkavu police station. According to the petitioner, the above case ended in CRL.M.C.No.2828/04 -:3:- acquittal as per the judgment dated 29-7-2004 of the Judicial first Class Magistrate-II, Nedumangad and therefore the proceedings under section 107 is illegal and baseless. Since the period of bond ordered to be executed has already over, the petitioner submitted that there is no meaning in continuing the proceedings against the petitioner and hence he prays to quash all the proceedings as per Annexure A summons and all other proceedings pending before the Executive Magistrate, Thiruvananthapuram. 3. I have heard the counsel for the petitioner as well as the learned Public Prosecutor. 4. The learned counsel invited my attention to Section 116 (6) of Cr.P.C in which it is stated that 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. The counsel further submitted that as evidenced by CRL.M.C.No.2828/04 -:4:- Annexure A summons, the proceedings started by 17th August 2002. But the same was being adjourned from time to time and no reason is reported for continuing the period after six months as contemplated by subsection 6 of Section 116 of Cr.P.C. However, it is borne out from the records, especially, from Annexure A summons that the petitioner was asked to appear on 17-8-2002 and the matter is being adjourned from time to time and so far it is not terminated. Going by the provisions contained in various sections in Chapter VIII of Cr.P.C., it can be seen that even the period of bond which can be ordered to be executed by the concerned parties is not more than a period of maximum period of 3 years. In Section 111 of Cr.P.C. it is stated that when a Magistrate acting under Sections 107, 108, 109 or Sec.110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required. Therefore , as per CRL.M.C.No.2828/04 -:5:- Section 111, the terms has to be fixed for which it is to be in force. Going by the provisions under sections 107,108, 109 and 110 it can be seen that each section has a fixed term for which the Magistrate can ask the concerned to execute the bond which will be in force. If that be so, in the present case, the maximum period that can be fixed under section 107 is not exceeding one year. But in the present case, the term which ought to have been fixed by the Executive Magistrate had to expire at least before August 2003. Even if the term calculated from the expiry date of six months from the date of commencement of the proceedings, the same would have expired by February 2003. Therefore, at any rate, it can be seen that the life of proceedings initiated under section 107 of Cr.P.C. in M.C.239/2002 had already expired. 5. As pointed out by the counsel for the petitioner, the Executive Magistrate cannot prolong the proceedings for an indefinite period unless there is special reasons recorded in writing. In view of Section 116(6), the inquiry under this section shall be completed within a period of 6 months from CRL.M.C.No.2828/04 -:6:- the date of its commencement. A Division Bench of this Court in Muhammedkutty v. State of Kerala ( 2007(2) ILR Kerala 381) held that enquiry commences as soon as the accused appears before the Court and Magistrate proceeds with the case. It was also held that “in fact Section 116(1) suggests that the enquiry commences with the appearance of the person and the Magistrate putting the question or appearance as provided under Section 110 or 112 as the case may be, and it is the duty of the Magistrate to read out the order and from that point onwards, the enquiry starts”. In the present case, it appears that the petitioner has already entered appearance through the counsel on the date fixed as per Annexure 2 and the enquiry commenced from that day. If the date of appearance of the petitioner through counsel taken as the date on which commencement of the proceedings started, from the available materials it appears that the period fixed by the provisions has already been expired. It is also submitted by the counsel for the petitioner that as evidenced by Annexure B judgment, the criminal case against the petitioner/accused was ended in CRL.M.C.No.2828/04 -:7:- acquittal. It is crystal clear that there was no basis for proceeding against the petitioner as the matter has become infructuous in the light of the provisions contained in the Cr.P.C. I am not proposed to enter into any finding on merit regarding the other contentions of the counsel for the petitioner. 6. In the result, the proceedings now pending against the petitioner will amount to abuse of the process of the court and the same is liable to be quashed and I do so. Accordingly. the Crl.M.C. is allowed quashing all proceedings in Crl.M.C.239/2002 in the court of Executive Magistrate, Thiruvananthapuram. V.K.MOHANAN, JUDGE kvm/- CRL.M.C.No.2828/04 -:8:- V.K.MOHANAN, J. No.... Judgment/Order Dated: