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Serei Behera Vs. BipIn Behari Roy - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 122 of 1958
Judge
Reported inAIR1959Ori155; 1959CriLJ1096
ActsIndian Penal Code (IPC), 1860 - Sections 504
AppellantSerei Behera
RespondentBipIn Behari Roy
Appellant AdvocateR.N. Sinha and ;H. Kanongo, Advs.
Respondent AdvocateP.C. Chatterjee, Adv.
DispositionRevision dismissed
Cases ReferredSisir Kumar Roy v. Udayanath Mallik
Excerpt:
.....have all to be taken into consideration in deciding whether the words were such as to provoke a breach of peace. in the judgment, it was clearly expressed on the facts of that case that it could not be brushed away as an incident involving no more than the use of abusive language, and accordingly, the order of acquittal was set aside. the words in the present case are more offensive than in the case just discussed above. with these observations, his lordship came to the conclusion that the words used by the petitioners were merely vulgar abuse and they did not intend to insult the complainant and that the prosecution failed to prove that the words were used with the intention or with the knowledge that a breach of the peace will be likely. this case on facts is also clearly..........have all to be taken into consideration in deciding whether the words were such as to provoke a breach of peace. in the judgment it was observed that if the complainant had been of the other sex or had been accompanied by any of her servants there would have been an instance of retaliation resulting in a breach of the peace. the fact that the complainant was a respectable lady and could control herself, in spite of the provocation was no reason why the act of the accused should be held as not amounting to an offence under section 504, indian penal code. in the judgment, it was clearly expressed on the facts of that case that it could not be brushed away as an incident involving no more than the use of abusive language, and accordingly, the order of acquittal was set aside. i do not.....
Judgment:
ORDER

S. Barman, J.

1. This revision is directed against an order of conviction and sentence passed by the learned Sessions Judge, Mayurbhanj at Balasore under Section 504, Indian Penal Code confirming the order of the Magistrate first class, Bhadrak whereby the accused petitioner was convicted and sentenced to pay a fine of Rs. 50/- and in default to rigorous imprisonment for one month.

2. The facts, shortly stated, are these: The incident took place on 12-11-1956 on a paddy field which originally belonged to the accused petitioner and his brother. On the day of incident a peon of the Revenue Court of Bhadrak came to deliver possession of the field to one Gangadhar Mohapatra, the decree-holder auction-purchaser. On behalf of the decree-holder his brother Kunja Behari Mohapatra was present. The complainant opposite party alleged that Kunja Behari as well as Gangadhar were his wife's brothers and that as he went to the place of delivery of possession to satisfy the curiosity, the accused petitioner abused him in filthy language, 'Sala Bhandatia Matruchod'.

This was apparently a simple incident with a back-ground however, of suppressed ill-feeling between the parties. In fact the brother of the accused-petitioner, had filed a criminal case against the opposite party alleging that the opposite party Bipin Behari Roy, Kunjabehari as well as some others, including the revenue court peon, forcibly cut and carried away the paddy crop standing on the said land, although the paddy had been grown by him and his brothers: and the auction purchaser had purchased only the land but not the standing crop.

It appears to me from the evidence on record that the outburst of abuses was a result of ill-feeling between the parties over this paddy field as a result of which there was litigation between the parties. The accused-petitioner's grievance was that they were stealing paddy from the field and that he was a victim of high-handed oppression and theft. It was contended on behalf of the accused petitioner that on such circumstances aforesaid, an angry vulgar outburst at such moment cannot come within the mischief of Section 504 Indian Penal Code.

3. Mr. H. Kanongo, learned Counsel appearing for the accused petitioner contended that the abusive words in question, as such, though vulgar and offensive, are not punishable under Section 504 Indian Penal Code. He cited before me certain authorities being decisions of this Court as also of the other High Courts in India. In E. Smith v. Chandramani Mohanty, 20 Cut LT 180 where the offensive wordswere 'Harum-Jadi', 'Bhusuri', Chief Justice Panigrahi in his judgment considered the words attributed to the accused, the gestures accompanying the words used, the object of insult, the company and the occasion when these words were used which, according to His Lordship's view have all to be taken into consideration in deciding whether the words were such as to provoke a breach of peace.

In the judgment it was observed that if the complainant had been of the other sex or had been accompanied by any of her servants there would have been an instance of retaliation resulting in a breach of the peace. The fact that the complainant was a respectable lady and could control herself, in spite of the provocation was no reason why the act of the accused should be held as not amounting to an offence under Section 504, Indian Penal Code. In the judgment, it was clearly expressed on the facts of that case that it could not be brushed away as an incident involving no more than the use of abusive language, and accordingly, the order of acquittal was set aside. I do not see how this decision can help the accused-petitioner. The words in the present case are more offensive than in the case just discussed above.

In recent decision of this Court in Nityananda Mohanta v. State, 24 Cut LT 299, were the words which had been taken exception to were 'Nankapuda', 'Badmas', 'Joginikhia', 'Ghuakha' and ''Mutakha'. Rao, J. in his judgment observed that these words are generally used wherever persons quarrel. It cannot be said that by using those words, the persons using those words really intend that the persons abused by those words are really such persons as conveyed by the words. With these observations, His Lordship came to the conclusion that the words used by the petitioners were merely vulgar abuse and they did not intend to insult the complainant and that the prosecution failed to prove that the words were used with the intention or with the knowledge that a breach of the peace will be likely.

It was held on the facts of that case that the words in question did not constitute intentional insult with intent to provoke breach of the peace under Section 504, I. P. C. This decision is however, distinguishable on the facts of the present case before me. Here by reason of the expression of the abusive words, in the back-ground, atmosphere and circumstances in which they were used, there was every likelihood of a breach of the peace which is the determining test. Where there is no likelihood of a breach of the public peace, it is no offence under Section 504: but where there is proof of such likelihood, it is an offence under the said section. In a decision of the Bombay High Court in Philip Rangel v. Emperor, AIR 1932 Bom 193, the objectionable words were -- 'You damn bloody bastards and cads'. It appears from the facts of this case, these words were muttered by one of the share-holders in a meeting of a certain Limited Company consisting of about forty members present.

Chief Justice Beaumont in his judgment while explaining the view he took of the situation in which the objectionable words were expressed by the accused, particularly noted that the accused did not adopt a loud and insolent tone and indeed did not intend his remarks to be heard. The accused had no intention to insult. Then His Lordship further took the view that the insult, if any was not intended or known by the accused to be likely to lead to a breach of the public peace or any other offence. It was no doubt natural for the shareholder to resent the use of such rude language but it could not be conceived that it was likely that the persons present at the meeting would so far lose control of themselves as to commit a breach of the public peace when they had got the Chairman of the meeting in control and capable of dealing with the matter.

In the result the accused was acquitted. This case on facts is also clearly distinguishable from the present case before me which arose out of an incident in a village where parties involved were ordinary common folk with hardly any such education or culture as could be expected of them or sufficient power of self control as to be able to control themselves in such an explosive situation caused by 'the abusive words which could have led to a breach of the public peace or any other offence arising from these abuses.

This incident in the villages cannot be compared on facts with what happened at a share-holders' meeting of a limited company presided over by a chairman in the City of Bombay. In the decision of the Assam High Court in Muhammad Sabed Ali v. Thulesver Borah, AIR 1955 Assam 211, where the facts shortly were that a constable from a Police Station informed the complainant that he should keep witnesses in a murder case ready as the Inspector of Police (the accused) would be coming to investigate the case. The witnesses were, therefore, kept ready. Therefore, another constable asked the complainant to take the witnesses to a neighbouring village. The complainant could not comply with the direction. Accordingly to him, the witnesses declined to go to that village out of fear.

A short while later, the accused Inspector of Police came there with a Daroga and two constables and the complainant approached him. The accused Inspector of Police started abusing him, called him a dog and addressed him as follows; 'You man, what is your name? Are you Ahed Munshi by name? You dog how long have you been in Assam? You want to teach me law. I can make one hundred Munshis like you, come and go by seising them by the ears'. On these facts, the Assam High Court, in revision directed against an order of acquittal passed by the Magistrate, held that mere abuse or even hurling of intentional insults and causing provocation thereby would not constitute an offence under Section 504, I. P. C. In the judgment, it was observed that the complainant's reaction to the insult was not material. He may be a law abiding citizen.

He may have been terror-struck. He may have found it difficult to retaliate. These circumstances do not determine whether it was known that the insult would be likely to lead to a breach of the peace or not. The High Court held in conclusion that the order of acquittal should not be interfered with in revision but that it should be declared that the order was erroneous. This decision, -- on the principles fully discussed therein, -- supports the prosecution point of view and not the defence contention with the present case before me. I had an occasion to decide a revision application in this Court in Sisir Kumar Roy v. Udayanath Mallik, Criminal Revn. No. 227 of 1957 D/- 25-7-1958 (unreported).

In that case, the objectionable words were 'Chotha, Chhokara and Badmash'. These words are very commonly used in an ordinary quarrel in this country and are not such provocative as to be likely to cause breach of the public peace. That was a case where the accused S and complainant U were both young graduates : and of course, should certainly have had some self control and restraint over their tongue. S and U were returning home from Court where they had a criminal case in which U had obtained a favourable order against the Section U having had a favourable order was naturally in a jubilant mood and in his exuberance of youth at his age he could not restrain himself from expressing in some way the joy of having had a favourable order, -- a victory over his rival in the criminal case. S naturally in a pensive mood was returning home from court.

On the way, there was a verbal altercation between the parties. S in course of this verbal altercation had been provoked to use those abusive words 'Chotha, Chhokra and Badmash'. S however, contended that those words were not meant for U. The sequence in which the said verbal duel between S and U took place was not clear from evidence. U appeared to have laughed in his jubilant mood and S could not restrain himself from reacting in the way he did. On the evidence in that case, I was satisfied that there was no likelihood that such alleged provocation would cause any person to break the public peace. Mere angry abuse without intention is not sufficient to bring it within the mischief of Section 504.

The defence of intentional insult punishable under Section 504 derives its criminality from the fact that it is intentional and gives provocation which is likely to lead to retaliation. It is the likelihood of the complainant's re-action to the insult leading to breach of the public peace and not the complainant's actual re-action which is material. It does not punish the use of all insulting expressions. On the facts and in the particular circumstances of the case, I held that the alleged expressions did not constitute an offence under Section 504; and the accused petitioner in revision was acquitted. There were however, some peculiar features which distinguish the said unreported decision just cited above from the present case.

4. Mr. Kanongo, the learned defence counsel then contended that where the petitioner is a victim of high handed oppression and theft, any angry vulgar outburst in such circumstances cannot come within the mischief of Section 504, I. P. C. According to the learned counsel, there was no intention on the part of the accused petitioner to insult, -- it was the helpless outburst of a man purported to be in the exercise of the right of private defence, and it was not an offence by virtue of Section 96, I. P. C.

This, I am afraid, cannot stand in law. The limits and extent to which the right of private defence may be exercised are provided in Ss. 96 to 106, I. P. C. There is no provision in the I. P. C., where an accused person can be excused for such insulting outburst in the exercise of the alleged right of private defence. The accused-petitioner should have self-control at least over his tongue not to indulge in such offensive: outbursts likely to provoke breach of the public peace or commission of any other offence, which falls within the mischief of Section 504, Indian Penal Code. I do not see how the accused can rely on any alleged right of private defence in such a case as he seeks to do in this case. The law does not give him such alleged right.

5. In this view of the matter, I am not satisfied that this is a fit case where this Court should interfere with the concurrent, findings of the two lower Courts on facts.

6. The result, therefore, is that the order of conviction and sentence must be confirmed and this revision dismissed.


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