Debendra Nath Maitra v. Emperor — 1947 DIGILAW 133 (CAL)

JUDGMENT Sen, J. - In my opinion this Rule must be made absolute and for several reasons. The Petitioner, Debendra Nath Maitra, has been convicted by the learned Chief Presidency Magistrate of having committed an offence punishable u/s 228 of the Indian Penal Code and sentenced to pay a fine of Rs. 200 in default to undergo simple imprisonment for a period of one month. The record of this case is most unsatisfactory and throws no light on what procedure was followed by the learned Magistrate. The entire record consists of an entry in the order-sheet, dated January 23, 1947 and is in the following terms: At 12-30 p.m., as the accused were brought to Court, they disturbed the work by shouting slogans. These five, Nimay Chand Nath, Jugal Chandra Das Gupta, Ram Krishna Pal, Debendra Nath Maitra, Pranab Kumar Sen, were the leaders. They have no cause to show. Fined Rs. 200 each or one month's simple imprisonment u/s 228, Indian Penal Code (480 Code of Criminal Procedure). 2. Now, the case was a summons case. That being so, it was incumbent upon the learned Magistrate to follow the provisions of Section 242 of the Code of Criminal Procedure and to explain to the accused the particulars of the offence of which he was accused. There is nothing to show that this was done. All that the learned Magistrate says is that the accused had no cause to show. A statement that the accused had no cause to show does not indicate sufficient compliance with the provisions of Section 242 of the Code of Criminal Procedure. The section demands that the accused should be apprised of what exactly his offence is. This is particularly important in a case of this description where a person is charged with having committed contempt of Court and where the facts may well indicate that there was no intention either to interrupt the Court or to insult it. I feel that if the accused were asked whether he intended to interrupt the Court in its judicial work or whether he intended to insult the Court, he would have denied both insinuations. The learned Magistrate has given a very long explanation and I am bound to accept what he says as being absolutely correct. I feel that if the accused were asked whether he intended to interrupt the Court in its judicial work or whether he intended to insult the Court, he would have denied both insinuations. The learned Magistrate has given a very long explanation and I am bound to accept what he says as being absolutely correct. The accused together with others had been arrested in connection with some political procession; when they were brought down from the police van to the Court-compound they were shouting certain slogans. What those slogans were has not been stated any where. For all I know, the accused might have shouted "God save the King," or "Long" live the Chief Presidency Magistrate," in which case, I think, an intention to insult or interrupt could not necessarily be deduced from his conduct. The learned Magistrate has made no record of any evidence; I realise that being a Presidency Magistrate he is not bound to do so. He has not even said in his order-sheet that he examined any person as a witness. One would have expected an entry to that effect in the order-sheet. However, I have no hesitation in accepting the statement of the learned Magistrate in his explanation submitted to this Court that he did examine a sergeant as a witness. He should, however, record the fact of his having examined a witness although he need not record the statement of the witness. He says that the sergeant told him that the accused was one of the ring-leaders who were doing the shouting. I accept that evidence. But the evidence does not disclose that there was any intention on the part of the accused either to insult the Court or to interrupt its work. Section 228 of the Indian Penal Code makes it quite clear that the insist or interruption must be intentional. The learned Magistrate says that his work was in fact interrupted; that is not enough; there must be a finding that the interruption was intentional. In other words, it must be shown that the accused knew that the learned Magistrate was at that time doing judicial work and that, having this knowledge, he intentionally shouted in order to interrupt that work. Now, there is not an iota of evidence to prove either such intention or such knowledge. In other words, it must be shown that the accused knew that the learned Magistrate was at that time doing judicial work and that, having this knowledge, he intentionally shouted in order to interrupt that work. Now, there is not an iota of evidence to prove either such intention or such knowledge. To say in the circumstances of this case that the accused is presumed to intend the natural consequences of his act and--to convict him upon a dictum of this kind is to say the least, absurd. The offence of contempt is a peculiar one and the Court ' should be extremely careful when convicting persons of this offence to satisfy itself that there was an intentional insult or interruption. If the circumstances attending the shouting of slogans are consistent with the theory that there was no intention on the part of the accused to interrupt or insult the Court, then the Court should accept that theory and acquit the accused; and in my opinion, upon the facts disclosed the Court was not justified in finding the accused guilty of harboring any intention of interrupting the Court's judicial work. 3. Next, I am of opinion that the Court had no jurisdiction to proceed with the trial of the accused by having recourse to the provisions of Section 480 of the Code of Criminal Procedure. That section comes into operation only where the contempt is committed in the view of or, in the presence of, the Court. In this case the contempt, if any, was not committed in the presence of the Court nor was it committed in its view. This does not mean that the Court is powerless. If someone behaves contemptuously out of the view and not in the presence of the Court he may still be punished for contempt of Court, but, in that case, the special provisions of Section 480 of the Code of Criminal Procedure will not apply and the trial will have to take place in accordance with the usual procedure laid down for the trial of other offences. 4. There is another error committed by the learned Chief Presidency Magistrate. Section 481 of the Code of Criminal Procedure enacts what sort of record the Court should keep when proceeding in accordance with the provisions of Section 480 of the said Code. 4. There is another error committed by the learned Chief Presidency Magistrate. Section 481 of the Code of Criminal Procedure enacts what sort of record the Court should keep when proceeding in accordance with the provisions of Section 480 of the said Code. This section applies to all Courts, including those of Presidency Magistrate; it is, therefore, incumbent upon the Chief Presidency Magistrate to follow the provisions of this section. No attempt whatsoever has been made by the learned Chief Presidency Magistrate to follow the section. It says that the Court shall record not only the facts constituting the offence but also the statement, if any, made by the offender. It goes on to say in Sub-section (2) that, if the offence is one punishable u/s 228 of the Indian Penal Code, the record shall show the nature and stage of the judicial proceedings in which the Court interrupted or insulted was sitting and the nature of the interruption or insult. Now, in this case, the record does not show any of these things. The learned, advocate appearing for the Crown draws my attention to Section 441 of the Code of Criminal Procedure, which attaches certain values to the explanation offered by Presidency Magistrates in answer to Rules issued by this Court. It says that a Presidency Magistrate, when sending, the record, may submit with it a statement setting forth the grounds of his decision or order and any facts which he thinks material to the issue and that the revising Court shall consider the statement before overruling or setting aside the decision or orders. Learned advocate for the Crown argues that the failure to comply with the provision of Section 481 of the Code of Criminal Procedure has been cured by the full explanation of the Magistrate made in answer to this Rule. I am unable to accept this contention; Section 441 of the Code of Criminal Procedure does not in any way govern, modify of take away from the effect of the mandatory provisions of Section 481 of the Code of Criminal Procedure. The provisions of Section 441 are necessary, because, in ordinary cases, the Presidency Magistrate's record is far from full by reason of the fact that the law specifically allows a Presidency Magistrate to omit many things from his record. The provisions of Section 441 are necessary, because, in ordinary cases, the Presidency Magistrate's record is far from full by reason of the fact that the law specifically allows a Presidency Magistrate to omit many things from his record. Section 441 allows a Presidency Magistrate to explain his record by his statement in answer to a Rule so as to enable the revising Court to know what occurred at the trial. But, where the law specifically provides, as it does in Section 481 of the Code of Criminal Procedure, that the record of a trial in a particular class of cases must contain certain materials and where it does not exempt Presidency Magistrates from complying with the provisions of that law in respect of such cases, Section 441 of the Code of Criminal Procedure can be of no help and a Presidency Magistrate, whose record does not contain those materials, cannot rectify his disobedience of the provisions of that law by supplying those materials in his explanation to the revising Court. 5. For the various reasons stated above, I hold that the order of conviction and sentence must be set aside and the Rule must be made absolute. The fine, if paid, shall be refunded.