1. The accused in this case has been fined for contempt of Court in a summary proceeding held by the Sessions Judge of Dharwar under Section 490 of the Criminal Procedure Code.
2. On an appeal to this Court there was a difference of opinion between Macleod, C. J., and Shah, J., and the appeal has been referred to me for decision.
3. The contempt was the offense defined in Section 228 of the Indian Penal Code. The accused was on trial for offenses of riot, mischief by fire and attempt to murder and when opening his defense put in a written statement complaining that he was being tried by a prejudiced Judge.
4. Such words are a gross, insult to any Court of Justice, but Shah, J., same to a conclusion which is expressed in the following passage from his judgment.
His conduct is consistent with the view that his intention was to press a defense which was adopted and adhered to without sufficient thought and which was couched in improper language and not to offer an insult to the Judge.
5. With great respect, it seems to me that this passage confuses motive with intention. The accused's motive for using the offensive expression was to support his defense. But if the words are an offense, the excellence of the motive will not make them lawful. A Frontier Tribesman has been known to cross the border and out off a British Bania's head merely in order to test the blade of a new sword. The motive was simple, innocent and childlike, but the intention was nevertheless murder.
6. I agree with Shah, J., that the motive of the accused was to justify his defense. His defense was that the riot had been organised by the Police and the District Officers, that the investigation had been conducted by guilty officials in order to falsely implicate him. It was an infamous defects which he could not hope to substantiate either by the cross-examination of prosecution witnesses or by the examination of witnesses for the defense. He, therefore, sought for various excuses for his omission either to cross-examine or to examine witnesses. One of the excuses was that it was futile to sail evidence before a prejudiced Court.
7. No doubt, the statement did, to some extent, serve the purpose of his defense and was made with that motive, but it is nonetheless an offence if the intention was to insult.
8. I think the same fallacy underlies the judgment of the Allahabad High Court in Murli Dharv, Emperor 33 Ind. Cas. 648 : 38 A. 254 : 14 A. L. J. 247 : 17 Cri. L. J. 163, A suggestion of prejudice was made in a petition praying for an adjournment in order to apply to the High Court for transfer. The High Court reserved the conviction under Section 228 apparently on the ground 'that the immediate object of the application was to obtain an adjournment.' But surely, however legitimate tin object, it was not lawful to commit an offense in order to attain that object.
9. The question is whether the insult was intentional and on this point I think it clear that this intention is an inference attaching to the words themselves, and this inference is net rebutted by any excuse as to the motive with whish the accused used the words or the object that he thought would be attained by so doing.
10. The referring judgment of Macleod, C. J., has been severely criticised on the ground that it is based on Rex v. Davison (1) whish deals with the more extensive jurisdiction as to contempt of superior Courts of Record. But that case is relevant as showing that the summary jurisdiction for contempt is essential to the proper administration of justice and that it is exercised not from any exaggerated notion of personal dignity but to prevent instances of indecorum occurring in Court.
11. On the other hand, also with respect, I differ from Macleod, C. J. when he says that the offence under Section 228 of the Indian Penal Code is of an entirely different nature from other offenses as defined in the Penal Code. In all offenses in the Penal Code where the intention is an essential ingredient of the offence, that intention must be strictly made out by the prosecution. This rule applies to the offense under Section 228 and it is also the duty of the Court of Appeal to decide if the intention is proved, Possibly, however, all that Macleod, C. J., meant was that the Trying Judge's appreciation of the indention should not lightly be set aside, for apparently innocent words might be uttered in a manner which was contemptuous. I doubt if this consideration was properly appreciated by Shah, J., in his hesitating conclusion that the same toad oat particularly when it is near the line as in the present case is apt to strike different minds in different ways.'
12. However that may be, I find that the intention is clearly made out in the present case: first, by the words themselves, and secondly, the conduct of the accused. When the Judge took proceedings for contempt and the accused found that the Judge put an unfavourable construction on his words he offered no explanation. The effect of this was, I think, that he persisted in them in the sense put upon them by the Judge.
13. I, therefore, confirm the conviction and sentence and dismiss the appeal.