1. The petitioner is the Chairman of the Wallajabad Union. A bazaar-man complained against him that he used insulting and abusive language in the bazar street. Instead of treating this as an intentional insult with intent to provoke a breach of the peace (Section 504 of the Indian Penal Code), a compoundable offence, the Stationary Second Class Magistrate proceeded to try and convict the accused for the offence of 'indecent be-haviour' under the Towns Nuisances Act, Section 3, Clause 12.
2. His Vakil claims the protection of Section 197 of the Criminal Procedure Code for his client and cites the recent decision of Seshagiri Aiyar, J., in Sankaralinga Tevan v. Avudai Ammal 35 Ind. Cas. 826 as an example of a case where sanction was considered necessary for the prosecution of a public servant accused of an offence committed by him as such public servant. In that case a Village Munsif attached property before judgment in the course of the hearing of certain civil suits filed in his Court. It was held that although he was not empowered to attach property before judgment, yet he had power to try the suits, and, therefore, when, in the course of the trial, he took a step in excess of his legal powers, he was still purporting to exercise the functions of a Village Munsif and so must be deemed to have acted 'as such public servant.' It would seem that he might also have pleaded the latter part of Section 77 of the Indian Penal Code in justification of his act.
3. In the present case when the accused removed the obstruction to the public thoroughfare caused by the complainant leaving carts with unyoked oxen across the street and sent the bulls to the pound, he undoubtedly was purporting to act in his capacity as Chairman. But by no conceivable theory can it be deemed to be a part of the functions of a Union Chairman to use abusive language in a public street and, therefore, I consider that the Deputy Magistrate was right in holding that the accused's act was not one committed 'as such public servant.'
4. A more analogous case than that cited on behalf of the petitioner is that of In re Ghulam Muhammad Sharif-ud-daulah 2 Weir. 213. There a Judge was charged with using defamatory language to a witness during the trial of a suit, and it was held that the complaint could not be entertained, without sanction.
5. The fact that the Judge was actually sitting in Court and officiating as a Judge when the words complained of were used coloured all his words and actions on the Bench with the atmosphere of his office. But the acts of a Union Chairman standing in an open street may either be acts done by him as Chairman or may be acts done in his private capacity. There is no reason to regard ordinary words of abuse as falling under the former description rather than under the latter.
6. At the trial the accused expressed his readiness to apologise to the complainant if he had abused him. The Magistrate rather unfairly used this as an indication of the accused's guilt.
7. I think that an apology would have satisfied the ends of justice, seeing that the complainant's obstructiveness to the lawful exercise of authority was certainly provoking and that these proceedings were evidently instituted in retaliation for the impounding of his bulls.
8. I hold that the accused's act fell within the exception of Section 95 of the Indian Penal Code and I set aside the conviction and direct the fine, if paid, to be refunded.