Ali Hassan Vs Kamla Prasad Sinha, Munsif Magistrate

@JUDGMENTTAG-ORDER

P.K. Banerji, J.@mdashThis application has been filed u/s 561-A of the Code of Criminal Procedure by one AH Hassan, a compounder attached to Araria Sub-divisional Hospital in the district of Purnea, with a prayer to quash the order dated 14-9-1967, passed by the Sub-divisional Magistrate, Araria in case No. 52C (c) of 1967 by which he took cognizance of the offence u/s 228 of the Indian Penal Code against the petitioner on the petition of complaint of Shri K. P. Sinha, Munsif-Magistrate, Araria.

2. The facts of the case in brief are that one Ganesh Narain Jha of Araria Police station was stabbed on 5-5-1967 and his injuries were examined by Shri G. K. Thakur, Second Medical Officer, Araria. After submission of the charge sheet the case was transferred to Shri K. P. Sinha, Munsif-Magistrate for trial. The doctor was examined in the case before the Munsif-Magistrate on 2-8-1967. The Medical certificate granted by the doctor in respect of the injuries of Ganesh Narain Jha was shown to him when he was being examined in the case and he noticed interpolation in the said certificate inasmuch as he had estimated the age of the injuries as 6 hours and it was so noted in the certificate itself but the certificate showed the age of the injuries as 246 hours. The hospital copy of the certificate was called for and the petitioner-compounder produced the certified copy of the certificate signed by Dr. Prasad. The certified copy indicated the injuries to be 24 hours old. Thereafter the petitioner was summoned to appear in Court in connection with the enquiry started by the Munsif-Magistrate u/s 476 of the Criminal Procedure Code and the petitioner in pursuance of this process appeared before the said Munsif-Magistrate on 13-9-1967. He was examined as a witness in the miscellaneous case (No. 2 of 1967) of that Court. After the close of examination of the witness he was given his recorded deposition which he read and found that the certificate that was shown to him in the witness box contained the figure ''246'' in reference to which he had stated that the digit ''6'' was not legible and the digit ''4'' was legible but the recorded deposition showed the contrary and he prayed before the Court that necessary correction in the deposition be made before he could be directed to sign the deposition. His contention was that he had stated on reference to the certificate shown to him that the digit ''6'' was not legible and digit ''4'' was legible but the record showed the contrary. The learned Munsif-Magistrate however asserted that the deposition recorded by him was correct and there was no mistake in it and insisted on the petitioner to sign the deposition as recorded or else he would be taken in custody and the petitioner under the apprehension of being put into custody signed the deposition. The Court also said that if the petitioner wanted he could file a petition. Accordingly on the same day a petition was filed by the lawyer on behalf of the petitioner mentioning the circumstances under which the recorded deposition was signed by him and the learned Magistrate felt agitated over it and sent a petition of complaint to the Sub-divisional Magistrate, Araria for taking cognizance against the petitioner u/s 228 of the Indian Penal Code and this was done by the learned Sub-divisional Magistrate, Araria on 14-9-1967 and the petitioner was summoned by Mr. P. Jha, Munsif-Magistrate before whom the case was transferred for disposal.

3. The petitioner''s contention is that there was no case, much less any prima facie case of contempt u/s 228 of the Indian Penal Code against the petitioner and the cognizance taken was wholly illegal and without jurisdiction. An application u/s 438 of the Criminal Procedure Code, for reference to this Court on the said ground was moved before the learned Sessions Judge, Purnea and the petition was summarily rejected on 25-9-1967, whereupon the petitioner has filed this present application.

4. Mr. Shivanandan Roy, learned counsel for the opposite party raised a preliminary objection against the maintainability of this petition and contended that the proper course for the petitioner should have been to apply to the trying Magistrate to quash and terminate the proceeding if he has no jurisdiction to entertain and try the complaint against him and the petition to quash the proceeding should not be entertained by this Court. No reported decision of the Supreme Court said to support the contention has been cited before me in support of the contention.

5. Mr. Ashwini Kumar Sinha, learned counsel appearing for the petitioner raised a number of points in support of his contention that the cognizance taken in this case is bad in law and these may be enumerated below:

1. The provision of Section 360 (2) of the Criminal Procedure Code having not been complied with, in other words, no memorandum with regard to the allegation having been prepared at the time the objection was raised by the petitioner-deponent before the Court when he was asked to sign his recorded deposition and was later forced to sign it under threat the complaint tiled was wholly unjustified.

2. Once recourse is taken to the provision of Section 476 of the Code a preliminary enquiry is envisaged by the Court in which the offence is committed before sending the complaint for action u/s 478 Cr. P. C. and no such preliminary enquiry was done in the present case and it vitiates the proceeding.

3. The record does not show the stage of any judicial proceeding when the alleged contempt was said to have been committed by the presentation of the petition and as such no prima facie case was made out and the provision of Section 228 of the Penal Code was not attracted.

4. On facts stated in the complaint no case of insult much less any prima facie case u/s 228 of the Penal Code was made out.

5. It being a case of direct contempt it was for the same Court in which the alleged contempt was committed to take cognizance of the offence and the provisions under Sections 480 and 482 of the Criminal Procedure Code should have been followed in the case and it was not a case u/s 476 Cr. P. C. read with Section 195(1) (b) or (c) of the Penal Code.

6. The petitioner filed a petition on 17-7-1968 in this Court tendering an unqualified apology and it should be accepted and the proceeding started against the petitioner should be dropped.

6. Point No. 6. -- I may at the outset dispose of the point about apology tendered through petition dated 17-7-1968 in which it is stated that the petitioner had filed the petition dated 13-9-1967 in good faith and had never intended to offer any insult or interruption to the Court and the petitioner being little read (upto Matric Standard) did not understand the import of the words "threat, coercion and extortion" used in the petition dated 13-9-67 which was drafted by his lawyer and since a direct complaint was filed, the petitioner had no opportunity to tender apology u/s 484 of the Code before the particular Court and the petitioner was now tendering his unconditional and unqualified apology. This petition was filed after the petition u/s 561-A had been already heard in part and as such the apology had been tendered at a very late stage. Apology must be voluntary, unconditional and indicative of remorse and contrition and it should be tendered at the earliest opportunity. Justification of his act by the contemner and at the same time tendering an apology are incompatible and incongruous and such an apology cannot but be taken to be an after-thought put forward in the hope of avoiding the consequence. Such an apology therefore, cannot be entertained.

Point No. 1. So far as this point is concerned, the contention of learned counsel is that the learned Munsif-Magistrate should have followed the procedure laid down in Section 360 (2) of the Code when the petitioner as a witness disclosed before the Court that what he had stated had not been correctly recorded. Section 360 (2) of the Code provides:

"If the witness finds incorrectness of any part of the evidence when the same was read over to him, the Magistrate or Sessions Judge may instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness and shall put such remarks as he thinks necessary."

The learned Magistrate instead of proceeding under this provision of the law recorded rather a long order in the order sheet of the date. This is however a matter which has nothing to do with the question under consideration, namely, the question regarding the maintainability of the case started on the petition of complaint filed by the Munsif-Magistrate concerned and cognizance taken by the Sub-divisional Magistrate thereof.

Point No. 2.-- The contention of the learned counsel so far as this point is concerned is untenable and the law is well settled that the power to make such a preliminary enquiry is in the discretion of the Court and whether an enquiry is necessary or not will depend on the facts and circumstances of each case and where a prima facie case has already been made out, a preliminary enquiry is not necessary and absence of such an enquiry does not necessarily vitiate the proceeding the object of such an enquiry being the satisfaction of the Court making a complaint that a prima facie case was actually made out against the person who committed the offence.

Points 3 and 4:-- It was next contended by learned counsel that the record does not show the stage of any judicial proceeding when the alleged contempt was said to have been committed by the petitioner and on the facts stated in the petition of complaint no case of insult or interruption, much less any prima facie case u/s 228 of the Penal Code was made out. These points however can hardly be looked into and considered in a petition filed under the provision of Section 561-A of the Code in view of the Supreme Court decision in the case of R.P. Kapur Vs. The State of Punjab, that in exercising its jurisdiction u/s 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not and it would not be open to any party to invoke the High Court''s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Prima facie the three words "threat, coercion and extortion" used in the petition dated 13-9-1967 were offensive and did apparently make out an offence u/s 228 of the Penal Code and the other matter regarding the stage of the judicial proceeding when the alleged contempt was said to have been committed is a matter for investigation and it cannot be looked into by this Court at this stage.

7. Ponit No. 5.-- The main contention of Mr. Sinha has however been that on the facts alleged it was a clear case of direct contempt and as such it was for the particular Court in which the alleged contempt was committed to take cognizance of the offence and it should have followed the special provision for such offence prescribed by Section 480 or 482 of the Code and not the procedure provided by Section 476 which envisages cases of contempt of a general nature. To appreciate the point raised by learned counsel it will be useful to quote below Section 228 of the Penal Code as also Section 480, 482, 476 (relevant portion), 195 (1) (b) and 190 (1) (a) and also schedule II of the Code (Tabular statement of offences):

Section 228 I. P. C. reads thus:

"whoever intentionally offers insult or causes any interruption to any public servant while such public servant is sitting in any stage of a judicial proceeding shall be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to one hundred rupees or with both,"

Section 480 Cr. P. C.:

"When any such offence as is described in Section 175 Section 178Section 179 Section 180 or Section 228 of the Indian Penal Code is committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit to take cognizance of the offence, sentence the offender to fine not exceeding two hundred rupees and in deault of payment, to simple imprisonment for a term which may extend to one month unless such fine be sooner paid".

Section 482 Cr. P. C.:

"If the Court in any case considers that a person accused of any of the offences referred to in Section 480 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine or that fine exceeding two hundred rupees should be imposed upon him or such Court is for any other reason of opinion that the case should not be disposed of u/s 480, such Court after recording the facts constituting the offence and the statement of the accused as hereinbefore provided may forward the case to a Magistrate having jurisdiction to try the same and may require security to be given for the appearance of such accused person before such Magistrate, or if sufficient security is not given shall forward such person in custody to such Magistrate."

Section 476 Cr. P. C.:

"(1) When any Civil. Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c) which appears to have been committed in or in relation to a proceeding in that Court such Court may after such preliminary inquiry if any as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court and shall forward the same to Magistrate of the first class having jurisdiction.

(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made u/s 200".

Section 195 (1) (b) Cr. P. C:

"(1) No Court shall take cognizance (b) of any offence punishable under any of the following sections of the same Code namely, Sections 193. 194, 195, 196, 199, 200. 205, 206, 207. 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in or in relation to any proceedings in any Court except on the complaint in writing of such Court or of some other Court to which such Court is subordinate." Section 190 (1) fa) Cr. P. C.:

(1) Except as hereinafter provided any presidency Magistrate. District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf may take cognizance of any offence --

(a) upon receiving a complaint of facts which constitute such offence".

8. Section 480 Cr. P. C. provides that when offences under Sections 175 178 179 180 or 228 I. P. C. are committed in view of or presence of any Civil, Criminal or Revenue Court the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day if it thinks fit to take cognizance and sentence the offender to fine not exceeding Rs. 200 and in default to simple imprisonment extending up to one month. Section 481 posits that in every such case the Court shall record the facts constituting the offence, with the statement if any made by the offender, as well as the finding and sentence. If the offence is u/s 228 I. P. C. the record shall show the nature and stage of judicial proceeding in which the Court interrupted or insulted was sitting and the nature of insult or interruption. Section 482 empowers the Court with a discretion to forward the entire proceedings to a Magistrate having jurisdiction to try the case, if it is felt a higher fine or sentence is called for or for any other reason. Section 484 empowers the Court to discharge the offender on submission of apology. Section 195 mentions how the Courts can take cognizance of offence against public justice such as (a) in Sections 193 to 196, 199 200 205 to 211 and 228 Penal Code (b) offences relating to documents given in evidence (Section 463 471 475476, I. P. C.). Section 476 Cr. P. C. formulates the procedure for inquiry into offence mentioned in Section 195. Section 480 thus empowers the Court in the view or presence of which the offence is committed with summary powers to deal with the five specific kinds of contempt (Sections 175 178 to 180 and 228 I. P. C.) and while u/s 480 the Court may sentence the accused yet, if for any reason the Court thinks that a more severe sentence than provided by Section 480 is called for, it can proceed in accordance with the procedure laid down u/s 482 of the Code.

9. Learned, Counsel referring to above schedule of the Code urged that the offence u/s 228 of the Penal Code has been shown in column 8 as triable by the Court in which the offence is committed subject to the provision of Chapter XXXV of the Code which contains Sections 480 and 482 among others and evidently the intention of the Legislature was that such cases of direct contempt should be dealt with in a summary manner unlike an enquiry u/s 476 of the Code. His further contention has been that where there are two different provisions for the offence of contempt provided by the Code the special provision should prevail over the general or else the provision of the special procedure provided by Sections 480 and 482 of the Code becomes infructuous and meaningless. He contended that "subject to Chapter XXXV" noted in column 8 of the schedule relating to this particular type of offence only means that the procedure for trial of such cases of contempt as provided by Sections 480 or 482 in Chapter XXXV has only to be followed and this was obviously the intention of the Legislature. The contention of the learned counsel appears apparently attractive; he referred in this connection to Bench decision of Calcutta High Court in the case of Probhat Chandra Adhikari and Another Vs. Emperor, in which his Lordship Rankin C. J. sitting with Patterson, J. observed that:

"Having regard to the fact that an Lffencc u/s 228 is made triable by the Court in which the offence is committed subject to the provision of Chapter XXXV, it appears to me prima lacie the intention of the Legislature was that such case should be dealt with under Sections 480 and 482",

A perusal of the above reported decision However indicates that the point directly under consideration of their Lordships was if the Registrar or sub-Registrar was to be deemed a Civil Court within the meaning of Section 480 or 482 and whether an offence u/s 228 if committed before the Sub-Registrar can be dealt with under Sections 480 and 482, that is to say, in the first instance by the Court in which the offence was committed and the question regarding the applicability or otherwise of the provision laid down in Section 476 of the Code in cases of direct contempt was not considered.

10. In a case before this Court Kamalesh Bhaduri Vs. Emperor, his Lordship Agarwalla, Acting C. J. (as he then was) however made the following observation.

"In the case of acts amounting to an offence u/s 228 Penal Code, Section 480 Criminal Procedure Code empowers the Court concerned to detain the offender in custody and at any time before the rising of the Court on the same day to take cognizance of the offender and sentence him to pay a fine not exceeding Rs. 200. If the Court considers that such a fine is inadequate in the circumstances of the case Section 482 authorises the Court to record the facts and the statement of the offender and forward the case to a Magistrate having jurisdiction to try the same. This is the normal procedure in the case of a contempt of Court committed in the presence of the Court".

His Lordship continued to say that

"Section 228, Penal Code however is one of the offences mentioned in Clause (b) of Sub-section (1) of Section 195 of the Code and is therefore an offence to which Section 476 applies. Section 476 empowers the Court in which or in relation to the proceedings of which an offence mentioned in Clauses (b) and (c) of Sub-section (1) of Section 195 has been committed to make a preliminary enquiry if it considers this to be desirable and thereafter to make a complaint in writing and to forward the complaint to a Magistrate of the first class having jurisdiction".

11. The submission of learned counsel for the petitioner with respect to the above observation in Kamalesh Bhaduri Vs. Emperor, is that his Lordship had already observed in the earlier part of the judgment that the normal procedure in cases of direct contempt committed in presence of the Court is to proceed u/s 480 or 482 of the Code and only casually and incidentally referred to the procedure laid down in Section 476.

12. In the case of Bachai Singh Vs. State, the point was considered by Desai, J. and the view taken was that the provisions of Sections 480 and 482 are not exhaustive and do not derogate from the power of the Court to take cognizance of the offence u/s 190 (1) (a) on a complaint u/s 195 of the Code. It was held that the provisions of Sections 190 (1) (a) and 195 are not at all affected by provisions of Sections 480 and 482 and cognizance of an offence punishable u/s 228 can be taken on a complaint of the Court concerned or the offender can be dealt with by the Court concerned as laid down under Sections 480 and 482 of the Code. Learned Counsel however on reference to para 5 of the reported decision aforesaid urged that the case before his Lordship was not one of direct contempt.

13. The submission of Mr. Sinha has thus been that in providing two separate procedures for dealing with an offence u/s 228 of the Penal Code --one, a summary proceeding u/s 480 or 482 and the other, a regular one u/s 476 of the Code of the Criminal Procedure and by indicating in column 8 of Schedule II that an offence u/s 228 is triable by the Court in which the offence is committed subject to the provision of Chapter XXXV of the Code -- the intention of the Legislature is obvious, namely that such cases of direct contempt should be dealt with in the summary manner as per procedure laid down in Section 480 or 482 which are within Chapter XXXV and not in accordance with Section 476. The settled principle however is that where the language in the statute is plain and unambiguous, it is not open to the Court to read into it limitation which are not there and a Court has to adhere to the grammatical and literal sense of the words and it has to give effect to the intention of the Legislature as expressed in the words themselves. The two provisions in Sections 480 and 476 can be fairly read to give meaning to each consistently and I see no conflict in them and they do not exclude each other. The words in Section 480, the Court may cause the offender ...." merely confer power upon the Court concerned to punish the offender summarily if it so decides instead of having him tried regularly on a complaint; obviously, Section 480 is an enabling section as has been the view taken in Bachai Singh Vs. State, .

14. Column 8 of Schedule II of the Code of Criminal Procedure relating to Section 228 mentions "subject to the provision of Chapter XXXV" and this Chapter begins with Section 476 and contains Sections 476 to 487 and consequently it cannot be urged that the intention of the Legislature is that the procedure prescribed by Section 480 or 482 of Chapter XXXV must necessarily be followed in all cases of direct or ex facie contempt of Court. The words "subject to the provision of Chapter XXXV" would cover the procedure prescribed by Section 476 as well.

15. It was lastly contended by learned counsel that in cases of direct contempt taken by the Court u/s 476 (2), the Court taking the cognizance has to proceed u/s 200 of the Code with the result that the Court making the complaint cannot withdraw the complaint and discharge the contemner which could otherwise be done under the provision of Section 484 of the Code which provides that any Court which has u/s 480 or 482 adjudged an offender to punishment or forwarded an offender to a Magistrate for trial may in its discretion, discharge the offender or remit the punishment on apology being made to its satisfaction. Mr. Sinha submitted further that there is a substantial difference between the sentence for the offence committed u/s 228 Penal Code and dealt with under the two separate provisions of Sections 480 and 476 and the person to be penalised will be put to hardship and disadvantage if the summary procedure in such cases of direct contempt is not followed. But disadvantage or hardship cannot be a ground to take away the effect of the clear language of the statute. It cannot thus be held that the cognizance of the offence u/s 228 against the petitioner taken by the learned Sub-divisional Magistrate of Araria by his order dated 14-9-1967 was illegal and without jurisdiction.

16. The application is dismissed.