T.K. Tukol, J.
1. The appellant filed a criminal complaint against therespondent who is a practising lawyer at Bhalki in BidarDistrict for air offence punishable under Section 504 ofthe Indian Penal Code. The case made out in the complaint is that when the complainant was being cross-examined in Civil Case No. 16/1 of 1959 in the Courtof the Munsif, the accused used filthy words with the intention of insulting him and that though he felt verymuch annoyed he was helpless as he had to observe complete silence in order to maintain the dignity of theCourt. After recording evidence as in a warrant case the Magistrate framed a charge under Section 504 of theIndian Penal Code and completed the trial according tolaw. During the course of his examination, under Section 342, Cr.P.C. the accused was questioned about the insulting language used by him against the complainantbut he replied that he could not say what he had thensaid as he had been provoked by the complainant so asto affect his prestige. He adduced no evidence to support his defence.
2. On considering the evidence the Magistrate held that the words used by the accused were derogatory to the dignity of the person to whom they were addressed x x x x x particularly when they had been uttered by a legal practitioner but that the accused was entitled to the benefit of Section 95 of the Indian Penal Code as the words were commonly used in everyday' life without any meaning or sting. He relied upon the decision of the Bombay High Court in Philip Rangel v. Emperor AIR 1932 Bom 193 and acquitted the accused.
3. The complainant has challenged the correctness of the decision before this court. Mr. Naik the learned Advocate for the appellant submitted that the accused intentionally insulted the complainant by the use of filthy words after his mother and thereby gave him provocation knowing that the provocation could cause him to commit a breach of the peace or commit any other offence. Mr. Ethirajulu Naidu the learned Advocate appearing for the accused sought to support the judgment of the trial court by urging that the words used by the accused may be defamatory but not insulting, that the Magistrate who knew the Urdu Language had come to the conclusion that the words had no sting being words of common abuse, that the accused had no intention to give any provocation to the complainant and that as the incident happened in the presence of the court there could be no question of anybody committing a breach of the public peace. He, strongly relied upon the decision of the Bombay High Court in Philip Rangel's Case, AIR 1932 Bom 193, relied on by the Magistrate. He also submitted that as the accused had expressed repentance and offered unqualified apology at the earliest stage he was entitled to the benefit of Section 95 of the Indian Penal Code.
4. There is no difficulty in this case in determining the precise words used by the accused which have been recorded immediately by the Munsiff at the end of the complainant's deposition. The words are 'Their chup, Maki Lowda' and they mean 'You shut up mother male Organ', it cannot be doubted that these words uttered by the accused are an intentional insult to the complainant and are sufficient under normal circumstances to provoke a normal person to break the public peace. The contention advanced on behalf of the accused that the words were more defamatory than an intentional insult has no substance. Defamation under the Penal Code consists in the making or publication of any imputation concerning any person, intending to harm the reputation of such person. The term 'imputation' implies an allegation of a fact and not merely a term of abuse which may amount to an insult. It consists in the making of an expression allegation or insinuation against a person so as to affect his reputation. In the present case the words used are filthy and indicate the accused's intention to insult the complainant thus exhibiting disrespect or indignity to wards the complainant's mother.
Such terms of abuse wherein mention is made ot mother along with the male organ are provocative in the extreme and the accused who is a practising lawyer cannot be heard to say that he had no intention to Insult the complainant by the use of those expressions. Even during the course of his statement under Section 342 of the Code of Criminal Procedure he simply avoided to explain by stating that he could not say what expressions fie had used against the complainant as he himself had been provoked. Our attention was drawn to two statements at Exs. D-1 and D-2 made by the complainant during the course of his deposition as provoking the accused. The first statement is that there was enmity between the complainant and the accused since four years and that Gourawwa had involved the complainant in the case on the advice of the accused. The second statement is that Gourawwa respected the advice of the accused and that she therefore involved the complainant in the suit falsely. These averments made in the examination-in-chief cannot be regarded as provocative. It was further argued that at the stage of the cross-examination when the alleged insulting expressions are said to have been used, the complainant said that the accused had come from Manthal and made property.
We are unable to see how these expressions could be provocative. Even if it were a fact that the replies given by the complainant which were definitely not abusive provoked the accused that circumstance cannot be used to justify the use of such filthy language in open court by a lawyer. The 'Magistrate's observation that the filthy words used by the accused were quite common and meant no offence is neither based on any evidence nor on any statement by the accused. We are convinced that the accused used the filthy expressions with an intention to insult the complainant while he was in the witness box.
5. It was then contended that there was no evidence to show that the accused gave provocation intending it or knowing it to be likely to cause the complainant to break the public peace or commit any other offence. In this connection Mr. Ethirajulu Naidu drew our attention to the recitals in the complaint wherein it has been stated that the alleged set of the accused insulted the complainant and annoyed him in his deposition, the complainant stated that he had lost his prestige as a result of the language used by the accused against him and that he felt very much annoyed. The argument advanced on the basis of these statements is that even according to the complainant the accused did not intend to provoke the complainant to commit breach of the public peace. The complainant has stated that he was helpless as he was bound to maintain the dignity of the court and had to observe complete silence. The fact that he exercised self-restraint and did not actually commit breach of the peace is of no avail to the accused. The words are sufficiently provocative and the normal effect of such words used under the situation of this case would invite a reciprocal abuse of assault. The offence of the accused Spends upon the provocation given by him and not upon the actual conduct of the complainant. In Queen Empress V. Jogayya, ILR 10 Mad 353, it has been laid down that the --
'.....law makes punishable insulting provocation which, under the ordinary circumstances, would cause a breach of the peace to be committed and that the offender is not protected from the consequences of his acts because the person insulted became too terrified to accept the provocation in the manner intended'.
In such cases it is sufficient if the complainant establishes that the abusive language used by the accused would ordinarily provoke a normal person to commit breach of the public peace. It is normal experience that Insulting remarks against female members of a family have the effect of creating resentment in the minds of men concerned so as to provoke them to angry behaviour or expressions resulting in the breach of public peace or of commission of any other offence. As was observed by a Division Bench of the Bombay High Court in King Emperor v. Chunibhai Dhyabhai, 4 Bom LR 78.
'To constitute an offence under Section 504, I.P.C. It is sufficient if the insult is of a kind calculated *o cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well is deeds'.
The wording of the section indicates that what the complainant has Jo prove is either an intention or knowledge on the part of the accused to show that the provocation given by him was likely to provoke, the complainant to break the public peace or commit any offence. It is not necessary that the complainant should actually commit either breach of the peace or any other offence.
In judging whether the insult offered by the accused is of such a character as is made punishable under Section 504 I.P.C. the court has merely to consider the standard of an ordinary reasonable man and see If the Insult offered is such as is ordinarily sufficient to arouse passions and provoke retaliation by words or deed. The decision in Guranditta v. Emperor, AIR 1930 Lah 344(2) relied upon by the learned Advocate for the appellant, lays down that in dealing with Section 504 I.P.C. the Judges
'....... .should try to find out what in the ordinary circumstances would have been the effect of abusive language used'.
'.........not to judge the temperament or idiosyncrasies of the individual concerned'.
in Re : S. Gopal : AIR1953Mad413 . the High Court of Madras held that
'.......The mere forbearance of the person insulted being provoked is not sufficient to protect the offender ....................'
6. That under normal circumstances the words used by the accused were likely to provoke breach of the peace is indicated by what happened in the court on that day. It is seen from the notes made by the Munsiff that as soon as the filthy language was used by the accused, he at once objected to his conduct as most, objectionable and disallowed him to cross-examine the witness any further. This only shows how the words used by the accused created a sudden and serious change in the atmosphere of the court and could have occasioned a breach of the peace but for the restraint which the complainant (who is also an old man) seems to have exercised on that occasion.
7. Mr. Ethirajulu Naidu has laid great emphasis on the decision of the Bombay High Court in AIR 1932 Bom 193 where the accused was acquitted on the ground that (he words used by him namely 'you damn bloody bastards and cads' did not amount to an insult and that even it there was a technical offence under Section 504 I.P.C., the matter was so trivial as to attract Section 95 of the Indian Penal Code. In our opinion the decision cannot help the accused as it was a decision on its own fact and discloses numerous features pointed out in the Judgment of Beaumont C.J. which were held to be sufficient to exonerate the accused, The accused in that case was one of the 26 persons wbo had requisitioned the meeting of the Shareholders of the Central Telegraph office Credit Co-Operative Bank Limited. At the meeting it was proposed by somebody that the requisitionists should be expelled. The accused got very angry at this and said that even the Governor General could not expel the members from the company. Thereafter he proceeded to leave the room and while leaving the room he muttered the words 'You damn Woody bastards and cads'. These words were overheard by some members who called the attention of the Chairman to the same.
The learned Chief Justice pointed out that the words used were terms of vulgar abuse as the accused did not know the antecedents of the forty members present there, that the use of the words 'bloody' Indicated that the words used by the accused were not to be taken literally as there was no suggestion of blood at the meeting, in. dealing with the essential Ingredients of Section 504 I.P.C. the learned Chief Justice observed:-
'No doubt the use of abusive language may form an important part of an insult by conduct. But in this case there was nothing insulting in the accused's conduct apart from the language he used. He did not adopt a loud and insolent tone, and Indeed did not intend his remark to be heard. I think therefore that there was no intention to insult X.X.'
those words were muttered while the accused was leaving the room and were perhaps more an expression of disgust, not intended to be heard by others and not meant to be an insult. Broomfield J. does not seem to have holly concurred with the learned Chief Justice. He seems to have taken the view that if there was a technical offence under Section 504 I.P.C. in the case it was not one in which the Criminal Courts should have been approached. Probably his Lordship thought that it was in the nature of a domestic difference of opinion or quarrel.
8. In the present case, the facts and circumstances I under which the offence was committed: render Section 95 wholly inapplicable. Section 95 lays down that nothing is an offence by reason that it causes or that it is intended to cause or that it is known that it is likely to cause, any harm, if that harm is so slight that no person at ordinary sense, or temper would complain of such harm. Sufficient details have been elicited on behalf of the accused in the cross-examination of the complainant to show that there was no love lost between them since last four years. The accused was appearing for the plaintiff and the was cross-examining the complainant who had been added as one of the defendants. It was during the course of the cross-examination that he used the filthy language, so much so, that even the court was shocked and presented the accused from proceeding with the cross-examination any further. The offence cannot be regarded as trivial. The complainant has been insulted in the presence of the court and within the hearing of all those who were present in court. The 'harm' done to him cannot be regarded as so slight that no person of ordinary sense and temper would complain of such 'harm'.
9. Reliance was also placed by the learned Advocate for the accused on two decisions of the former Mysore High Court. In Sidde Gowda v. Narasimha Setty, 4 Mys U 223 it was held that the use of the words 'soole magane' (son of a prostitute) by the accused against the complainant did not amount to an offence under Section 504 I.P.C. Unfortunately, the report does not give all the facts of the case and therefore the applicability of the decision to the facts of this case cannot be examined. In Dodda Venkate Gowda v. Chicka Venkate Gowda, 26 Mys CCR 234 it was laid down that
'Section 504 is not intended to cover cases of ordinary abusive language and unless it is clearly shown that the language used is such and is used in such circumstances as would be likely to provoke a breach of peace, there should be no conviction under the Section'.
We are in respectful agreement with the proposition stated in this case. The complaint filed in that case did not contain any description of the abusive language nor was it set out in the Judgment of the Magistrate. The learned thief Justice acquitted the accused on the ground that be could not know exactly what the insult was.
10. Mr. Ethirajulu Naidu submitted on behalf of theaccused that according to the evidence of the MunsiffMohd. Hameeduddin the accused had behaved well in allcases except the one under reference. Our attention wasalso drawn to that fact that the accused had submittedan unqualified apology in the court. All these may begood grounds for a lenient punishment but not for mitigating the offence.
11. In the result, we allow the appeal and set aside the order of the acquittal passed by the Magistrate. We convict the accused of the offence punishable under Section 504 I.P.C. and sentence him to pay a fine of Rs. 25/- or in default to suffer one week's simple imprisonment.