1. The petitioner was convicted by the First Class Bench Magistrate's Court of Nellore Town of an offence punishable under Section 504, Indian Penal Code and sentenced to pay a fine of Rs. 10 in default to a week's simple imprisonment.
2. This case is a very good example of the way in which Section 504, Indian Penal Code, is misused. The offence contemplated in Section 504 is a serious one, as is indicated by the fact that it is made punishable with a term of two years' rigorous imprisonment. It is obviously intended to deal with persons who are as responsible for breaches of peace or the commission of offences as those who openly abet or incite them. Despite this, Section 504, Indian Penal Code is being constantly used by Courts of Summary Jurisdiction and by the lower Magistracy to express their disapproval by the imposition of a fine of the use of bad language. I have never seen in the numerous cases that have come before me any sentence more serious than a fine of a few rupees. The case under consideration illustrates the misuse of this section very well. The complaint against the accused was under Section 352, Indian Penal Code, a petty offence that is punishable only up to three months' rigorous imprisonment. The Court disbelieved part of the prosecution case and found that the alleged assault was not true and that something less than an assault had taken place. The residuary offence, after taking away the greater part of this petty offence of assault, was a serious offence under Section 504, Indian Penal Code, punishable with two years' rigorous imprisonment. That the learned Magistrates did not realise the nature of the offence punishable under Section 504, Indian Penal Code, is made clear by the fact that they have nowhere discussed whether the insults of the petitioner were intended to provoke a breach of the peace or the commission of an offence, or whether the petitioner knew that it was likely that such provocation would cause a breach of the peace. The Magistrates evidently thought that an insult--at any rate a gross insult--was an offence in itself. That is not so. What is punished under this section is something very much graver than that. The anomaly of the use of this section for the purpose of punishing filthy abuse is further indicated by the fact that to abuse a rowdy or a bad-tempered person who would be sure to respond with violence is much more likely to be an offence than to abuse a helpless woman.
3. Another indication that the Magistrates did not realise the nature of the offence with which the accused was charged is the procedure that they adopted. The offence punishable under S. 004, can be tried by the summary procedure; but the rules laid down for the trial of warrant cases must be adopted, unless there are any rules under the summary procedure chapter which modify it. One essential of a warrant trial is that the accused persons should be required to state at the commencement of the next hearing of the case (i.e., a special adjournment has to be given for that purpose) whether he wishes to cross-examine, and if so, which of the witnesses of the prosecution whose evidence has been taken. That too was not done in this case. It has been held that the omission to give proper facilities for further cross-examination is an illegality which vitiates the conviction. Although it is not necessary to go as far as some decisions have gone in this direction, yet the omission is undoubtedly a grave one. That, coupled with the fact that the learned Magistrates did not consider the essential ingredients of Section 504, makes it necessary to set aside the conviction and sentence. It is ordered accordingly. The fine, if paid, will be refunded.