N.C. Talukdar, J.
1. This revisional application is against an order dated the 17th January, 1966 passed by Sri H. G. Roy, the learned Sub-Divisional Magistrate, Malda, in case No. 128 C of 1966 summoning the accused petitioner Sahasrangshu Kanti Acharyya under Section 228 of the Indian Penal Code and in drawing up proceedings against him thereunder.
2. The facts of the case are short and ample. On a complaint filed by one Amitava Chattopadhya, the petitioner and the co-accused, one Jnanendra Mohan Misra, were summoned by Sri A. K. Mitra, Sub-Divisional Magistrate, Malda in case No. 2325C of 1965--the former under Section 323 Indian Penal Code and the latter under Section 325 Indian Penal Code. The petitioner and the co-accused, thereafter, appeared before Sri H. G. Roy, the learned Sub-Divisional Magistrate, Malda and were released on bail on the 4th December 1965. On the 17th January 1966, which was the next date fixed, the petitioner as well as the co-accused appeared before Sri H. G. Roy, who was pleased to transfer the case to the file of Sri J. C. Kundu, Magistrate, second class, for favour of disposal. On the same date the learned transferee Magistrate. Sri Kundu, received the case by transfer and passed the following order:
'Case received by transfer. Accused Jnanendra Mohan Misra and Sahasrangshu Acharyya present, may find fresh bail of Rs. 1000/- each I. D. to hajat'.
After the case was transferred to the file of Sri Kundu and the accused-petitioner had left the court of the learned Sub-Divisional Magistrate, he passed the impugned order on the same date, namely, the 17th January 1966. The learned Sub-Divisional Magistrate found therein that while he was transferring the abovementioned cast from his file to the file of Sri Kundu, the learned transferee Magistrate, and that was a stage in the judicial proceeding, the accused petitioner was found by him to keep on wearing a pair of black glasses and that he did not go to the dock and sat without the permission of the court thereby intentionally offering insult to the said court. He took cognizance of the case and summoned the accused under Section 228 Indian Penal Code. The accused appeared being called by his lawyer and he was asked to show cause why he should not be prosecuted under Section 228 Indian Penal Code and the 25th January 1966 was fixed for appearance of the accused.
3. Against this order the accused-petitioner has come up to this court and obtained the present Rule.
4. Mr. Prasun Chandra Ghosh, the learned Advocate appearing for the accused-petitioner, has put forward a three-fold argument in support of the Rule. The first one is regarding the interpretation of Section 228 Indian Penal Code and the other two contentions relate to the procedure that should apply in such cases. Mr. Ghosh argues, in the first instance, that even on the facts and circumstances of the case as mentioned in the impugned order, there was no question of the accused intentionally offering any insult or causing any interruption to the learned Magistrate, in any stage of the judicial proceeding and the circumstances referred to by the learned Magistrate are not only susceptible of a more innocent interpretation but also do not constitute any such insult or interruption, which can form legally the basis of a prosecution under Section 228 Indian Penal Code. It was submitted in this connection that the learned lawyer appearing on behalf of the accused-petitioner had explained to the learned Sub-Divisional Magistrate that the petitioner had to wear coloured glasses for his eye-troubles and not with the intention of offering any intentional insult to the Court as alleged or at all and that the learned Sub-Divisional Magistrate had not indicated in any way, while the petitioner was in the court, that he had so contravened the norms and had in any way offered any insult intentionally or otherwise to the said court. I must observe, however, in this connection that the learned Sub-Divisional Magistrate, Malda, having denied in his report to this Court, any such explanation, purported to have been offered by the learned lawyer appearing on behalf of the petitioner in course of the same day. I cannot at this stage, take the same into consideration for the purpose of the disposal of the present rule.
5. In support of his contention, Mr. Ghosh has referred to a decision of this court, in the case of Debendra Nath Maitra v. Emperor, 52 Cal WN 336, wherein A. N. Sen, J. has held that in order to constitute an offence under Section 228 Indian Penal Code, the insult or interruption must be intentional and that the offence of contempt as envisaged under Section 228 Indian Penal Code is a peculiar one and the court should be extremely careful when convicting persons of this offence to satisfy itself that there was any intentional insult or interruption. Mr. Ghosh further referred to two other cases namely, Chhaganlal Iswardas Shah v. Emperor, AIR 1933 Bom 478 and Dalip Singh v. Emperor, AIR 1921 Lah 102. In the former case, Beaumont C. J. and Wadia, J. have held that in order to bring a case within the ambit of Section 228 Indian Penal Code and Section 480 Criminal Procedure Code, it must be shown that the accused intentionally offered insult to the court. In the latter case Shadi Lal, C. J., who delivered the judgment, held inter alia that judicial officer has no doubt to maintain the dignity of his court but he must not be too sensitive I agree with the said views.
6. The provisions of Section 228 Indian Penal Code, in my opinion, have sometimes been misinterpreted. An offence of contempt of court may be tried either under the provisions of the Contempt of Courts Act or 'under Section 228 Indian Penal Code or may be otherwise summarily dealt with by a court of record under its inherent power or under the Code of Criminal Procedure, if it is committed in 'facie-curie' Section 228 Indian Penal Code prescribes the punishment for those cases of contempt of court where the public servant is sitting in any stage of a judicial proceeding Contempt within the meaning of Section 228 Indian Penal Code means intentionally offering any insult or causing any interruption to any public servant, in any stage of a judicial proceeding. A reference may be made to the decision by the Supreme Court in the case of State of Madhya Pradesh v. Reva Shankar, : 1959CriLJ251 . Their Lordships have held that the yard-stick to be applied for finding out as to whether the act complained of amounted to an offence under Section 228 Indian Penal Code is as to whether the three essential ingredients of the offence have been established, namely, (1) Intention (2) Insult or interruption to a public servant and (3) The public servant insulted or interrupted must be sitting in any stage of a judicial proceeding. If any one of these element? be conspicuous by its absence, the offence will not come within the ambit of Section 228 Indian Penal Code. In a recent decision of the Madras High Court in the case of Advocate General of Madras v. Amanull Khan, : AIR1967Mad162 the essential ingredients of an offence, punishable under Section 228 Indian Penal Code, have been reiterated as above by Anantanarayanan C.J. and Ramakrishnan J. following the aforesaid decision of the Supreme Court. It has been further held therein that if the averments go beyond and scandilise the court itself and further impair the administration of justice, that may amount to contempt of court and not merely an offence punishable under Section 228 Indian Penal Code. In my view, the gravamen of the offence is that the offender must do something physical, namely, insult or interrupt a public servant in any stage of a judicial proceeding, but that is not enough. There is a mental part of the offender which should also be taken into consideration and that mental part is that the offender had the intention to cause the said insult or interruption. Both these elements must co-exist in order to constitute an offence under Section 228 Indian Penal Code. The fact that the court feels insulted is no reason for inferring contempt when no insult was so intended. To put it in a short compass, the elements of an offence under Section 228 Indian Penal Code are both objective and subjective--objective in the sense that the factum of insult or interruption must be there and subjective because the same has to be accompanied by an intention on the part of the offender to commit the same--and the entire thing must take place against the back-drop of a judicial proceeding. In this particular case I hold that the various circumstances which have been catalogued by the learned Sub-Divisional Magistrate in the impugned order do not constitute any intentional insult or interruption to a public servant sitting in any stage of a judicial proceeding The majesty of the court is on a pedestal high enough to overlook such pinpricks
7. The next two points urged by Mr. Ghosh are procedural. In the first instance, he has contended that there has been a non-conformance to the procedure as laid down under Section 480 of the Code of Criminal Procedure, relating to such cases of contempt He submitted that when the offence in question was said to have been committed in the view or presence of the learned Sub-Divisional Magistrate, he might have caused the offender to be in custody and before he rose for the day he might have, if he so thought fit and proper to take cognizance of the case, sentenced the offender to a fine not exceeding Rs 200/- I find that the learned Magistrate did neither. The order passed on the said date would show that after the accused was called by his lawyer and appeared before the learned Sub-Divisional Magistrate he only asked him to show cause why he would not be prosecuted under Section 228 Indian Penal Code and fixed the 25th January, 1966 for his appearance once again This is not in conformance to the provisions of Section 480 of the Code of Criminal Procedure. In the next place Mr. Ghosh urges that the said procedure cannot also be construed to have been covered by the provision of Section 482 Criminal Procedure Code. I agree with the said contentions.
8. The intention of the legislature is clearly expressed in specific terms as contained in the said section and one need not travel beyond the same for its true meaning and effect. It lays down that if the court in any case considers that the person accused of any of the offences referred to in Section 480 of the Code of Criminal Procedure and committed in its presence or view should be imprisoned, otherwise than in default of payment of fine, or that a fine exceeding the sum of Rs. 200/- should b' imposed upon in view of the facts and circumstances of the case or for any other reason that the court may deem fit and proper, such court should record the facts constituting the offence and the statement of the accused as hereinbefore provided and then may forward the case to a Magistrate having jurisdiction to try the same. One looks in vain through the order-sheet to find any such indication that the learned Sub-Divisional Magistrate had intended to proceed under Section 482 of the Code of Criminal Procedure and not under Section 480 of the said Code. In the absence of any such specific reference to the said effect, the same cannot be read into the order-sheet by way of curing the said proceedings. Mr. Ghosh has in this connection referred to a decision by the Division Bench of the Bombay High Court in the case of Shankar Krishnaji v. Emperor, AIR 1942 Bom. 206 (1), wherein Beaumont, C. J., and Sen, J. have held that in the normal course such a prosecution should be commenced and prosecuted in accordance with the provisions of the Code of Criminal Procedure. Section 480 of the said Code provides, so far as material, that when any such offence as is described in Section 228 I. P. C. is committed in the view or presence of any civil or criminal or revenue court, the court may cause the offender to be detained in custody and at any time before the rising of the court on the same day may, if it thinks fit and proper, take cognizance of the offence and sentence the offender as mentioned therein. This is a special power given to the court to deal with the case of insult offered to the court in its presence. The court can rely on its own opinion as to what had happened and can detain the offender in custody, take cognizance of the offence and sentence him but all that must be done before the rising of the court, that is. in course of the same day. I agree with the said view. A reference in this connection may also be made to the case of Bachai Singh v. State : AIR1959All693 . wherein the procedure as laid down in sections 480 and 482 of the Code of Criminal Procedure has been discussed in details M. C. Desai, J. has held therein that cognizance of an offence punishable under Section 228 of the Indian Penal Code can be taken on a complaint of the court concerned or the offender may be dealt with by the said court as laid down in Section 480 or Section 482 of the Code of Criminal Procedure. Section 480 of the Code of Criminal Procedure is only an enabling section and confers power upon the court concerned to punish an offender summarily instead of having him tried regularly on a complaint. The power conferred under Section 482 of the Code of Criminal Procedure is alternative to the power conferred under Section 480 of the Code of Criminal Procedure of sentencing the offender summarily to a fine not exceeding Rs. 200/-. The power under Section 482 of the Code of Criminal Procedure is to be exercised only when part of the power conferred by Section 480 of the Code of Criminal Procedure, namely, that of detaining the offender in custody has been exercised, although the power of detaining the offend or in custody is not the only power of the court, aggrieved by the offence. I find that in this particular case the learned Sub-Divisional Magistrate has followed a hybrid procedure which is 'de hors' the statute. He has proceeded neither under Section 480 nor under Section 482 of the Code of Criminal Procedure, resulting in a non-conformance not only to the procedure as laid down in law but also in a consequent prejudice to the accused-petitioner. The learned Magistrate has further erred in not following the provisions of Section 242 Criminal Procedure Code, in not explaining to the petitioner the particulars of the offence, of which he was accused.
9. Mr. R. N. Chakrabarty, the learned Advocate appearing on behalf of the State, has opposed the Rule. He has contended that the irregularity, if any, is cured under Section 537 of the Code of Criminal Procedure and he refers to a case, Queen Empress v. Paiambar Baksh, (1889) ILR 11 All 361, wherein Straight, J. has held that the procedure laid down in Section 480 of the Code of Criminal Procedure should be strictly followed but in a case where the learned Magistrate, in whose presence the purported contempt was committed, took cognizance of the offence immediately, hut in order to afford an opportunity to the accused concerned of showing cause deferred his final order for some days, such action though otherwise irregular and not enjoined under Section 480 of the Code of Criminal Procedure, was not illegal and in the absence of prejudice caused to the accused, is curable under Section 537 of the Code of Criminal Procedure, I am afraid that the principles as laid down in the said decision do not apply to the facts of the present case. The differences, in the facts involved in the two cases, stick out for miles, in the instant case, there is no question of merely deferring the matter to a later date for the purpose of passing a final order and as such the resultant non-conformance is not curable under Section 537 Criminal Procedure Code. Moreover the Bench decision of the Bombay High Court reported in AIR 1942 Bom 206 (Ibid) as well as the decision in : AIR1959All693 (Ibid) are cases which are pointers to the other view--and a view with which I am in complete agreement.
10. In view of my above findings, Imake the Rule absolute; set aside the orderdated the 17th January, 1966 passed by thelearned Sub-Divisional Magistrate: andquash the proceedings based thereupon.