M. K. SHAH, J. ( 1 ) THESE two appeals are directed against the order passed by the learned Sessions Judge Surat in sessions case No. 91 of 1978 at Exs. 57 and 58 ordering that two separate complaints be lodged against the appellant before the competent Magistrate for the alleged commission of two offences punishable under sec. 228 of the Indian Penal Code. ( 2 ) A few facts leading to the passing of the said order may be briefly stated. The appellant who was working as an executive Magistrate and City Mamlatdar for Surat was examined as a witness tex. 46) in sessions case No. 91 of 1978 before the learned Sessions Judge Surat on 14 When the appellant was under cross-examination the learned Advocate for the defence put him a question as to what was the distance between his office and the gate of the castle to which he replied that he had not measured the same. On feeling that the witness should not have answered in this fashion the learned Sessions Judge reprimanded the appellate telling him that he was a responsible officer and that he should not answer in a manner in which a layman would answer. On these remarks the appellant is alleged to have uttered the following wordstranslated into English it would mean that the advocate for the defence had put a quesstion without any base () (the learned Sessions Judge has translated it as absurd) and the court supports him. In the opinion of the learned Sessions Judge the appellant by this behaviour and uttering these words intentionally offered insult to court thereby committing an offence punishable under sec. 228 of the Indian Penal Code. He therefore by an order at Ex. 58 issued a notice against the appellant requiring him to show cause as to why he should not be prosecuted for the contempt of court punishable under sec. 228 of the Indian Penal Code. The appellant filed his reply at Ex. 228 of the Indian Penal Code. He therefore by an order at Ex. 58 issued a notice against the appellant requiring him to show cause as to why he should not be prosecuted for the contempt of court punishable under sec. 228 of the Indian Penal Code. The appellant filed his reply at Ex. 68 to the said show cause notice inter alia explaining that he uttered the said words because when he had earlier stated that he had not measured the distance the learned Advocate after expressing sorrow inquired as to what was the distance approximately and he felt that the question was not properly formulated and thereupon when the court passed the said remarks against him reprimanding him and asking him not to answer like a layman he being a responsible officer it all of a sudden came out from his mouth that the court was granting protection to the learned Advocate for the defence and thereafter he immediately answered that the distance was approximately 30 to 35. It is also his explanation that the unfortunate incident happened all of a sudden and he had not the slightest intention of causing any insult to the court nor could there be such an intention on his part. However if the court thought that his behaviour was insulting in this connection then he expressed regret sincerely and asked for pardon assuring that in future he will take care to see that no such incident happens. ( 3 ) IT may also be mentioned at this stage that during the course of the very proceeding as complained by the learned Sessions Judge when his evidence was being recorded on oath when the learned Judge was dictating it to the typist-clerk the appellant had shouted and by taking objection against dictation intentionally caused interruption to the work of dictating the deposition and in the opinion of the learned Sessions Judge this also amounted to an offence under sec. 228 of the Indian Penal Code. He therefore issued another show cause notice as per Ex. 57 against the appellant. The appellant by his reply Ex. 66 explained by saying that irs para 2 of his deposition it was noted that suspected accused were produced before the appellant by the Jailor. His intention in making the statement was that the jailor had sent the suspected accused along with the report. 57 against the appellant. The appellant by his reply Ex. 66 explained by saying that irs para 2 of his deposition it was noted that suspected accused were produced before the appellant by the Jailor. His intention in making the statement was that the jailor had sent the suspected accused along with the report. The appellant was asked the question as to who had brought before him the suspected accused to which his reply was that the policemen had brought the suspected accused and as it was noted in para 2 of his deposition that the suspected accused were produced by the jailor he said that it was not proper to say that the jailor had produced them and that while raising this objection the same seems to have been raised Will a loud voice by him but that was spoken in the natural manner and he had no intention of insulting the court thereby and in raising the objection his intention was not to interrupt the court in the work of dictation of the depositlon nor could such be his intention. However if the court found his behaviour improper he expressed his regrets and asked for pardon and assured that in future he will take care to see that no such thing happens. The learned Sessions Judge passed a common order disposing of both the said notices below Exs. 57 and 58. ( 4 ) IN the opinion of the learned Sessions Judge by the said behaviour the appellant had committed an offence under sec. 228 of the Indian Penal Code and he must suffer the consequences for the same. Taking the view that the appellant would get an opportunity to tender apology to the satisfaction of the court in the prosecution proposed to be launched as provided by the provisions contained in sec. 348 of the Code of Criminal Procedure the learned Judge observed that at that stage if a prima-facie case was made out he must face the prosecution. He therefore passed the impugned order dated 12th September 1978 directing the Public Prosecutor Surat to lodge two separate complaints before the competent Magistrate for the alleged commission of two offences punishable under sec. He therefore passed the impugned order dated 12th September 1978 directing the Public Prosecutor Surat to lodge two separate complaints before the competent Magistrate for the alleged commission of two offences punishable under sec. 228 of the Indian Penal Code against the appellant and in pursuance of this order both the complaints on behalf of the learned Sessions Judge were filed before the court of the Judicial Magistrate First Class Surat being criminal case No. 5470 of 1978 arising out of the order below Ex. 58 and criminal case No. 5469 of 1978 arising out of the order below Ex. 57. Hence criminal appeal No. 1033 of 1978 praying for an order directing withdrawal of the complaint in criminal case No. 5470 of 1978 and criminal appeal No. 1034 of 1978 praying for an order directing withdrawal of the complaint in criminal case No. 5469 of 1978. ( 5 ) MR. K. J. Shethna the learned Advocate appearing for the appellant in both the matters has first of all contended that in the instant cases the first requirement of sec. 340 (1) of the Code of Criminal Procedure 1973 (the Code) has not been complied with and hence the complaints are not tenable and they should therefore be ordered to be withdrawn as provided in sec. 341 of the Code. The material portion of sec. 340 (1) reads thus when upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-sec. (1) of sec. 341 of the Code. The material portion of sec. 340 (1) reads thus when upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-sec. (1) of sec. 195 which appears to have been committed in or in relation to a proceeding in that court or as the case may be in respect of a document produced or given in evidence in a proceeding in that court such court may after such preliminary inquiry if any as it thinks necessary (A) record a finding to that effect; (B) make a complaint thereof in writing; (C) send it to a Magistrate of the first class having jurisdiction; (D) x x x (E) x x xtherefore the first requirement under this section is that the Court must form an opinion that it is expedient in the interests of justice that an inquiry should be made into any of the offences as are referred to in clause (b) of sub-sec. (1) of sec. 195 and it is only after the formation of such an opinion that the court can hold a preliminary inquiry and record a finding to that effect. ( 6 ) NOW in the long order which the learned Sessions Judge has made running into 17 pages it is nowhere to be found that this requirement of sec. 340 (1) is satisfied. Though the learned Sessions Judge has set out his opinion that the appellant appears to have committed such an offence as is referred to in clause (b) of sub-sec. (1) of sec. 195 there is nothing to be found in any part of his order showing that the court is of the opinion that it is expedient in the interests of justice that an inquiry should be made into any such offence. This is a condition precedent to the exercise of jurisdiction vested in the court under sec. 340 (1) and in this view of the matter the complaint made by the learned Sessions Judge in writing in pursuance of the order passed in this behalf below Exs. 58 and 57 is not according to law and the complaints therefore filed and the proceedings instituted as submitted by Mr. Shethna require to be withdrawn and quashed. 340 (1) and in this view of the matter the complaint made by the learned Sessions Judge in writing in pursuance of the order passed in this behalf below Exs. 58 and 57 is not according to law and the complaints therefore filed and the proceedings instituted as submitted by Mr. Shethna require to be withdrawn and quashed. ( 7 ) AGAIN if one goes through the complaint and the order passed on Exs. 57 and 58 it is apparent that this was not a case in which the learned Sessions Judge should have exercised his powers under sec. 346 (1) of the Code. It seems the learned Sessions Judge has become unnecessarily touchy about certain remarks alleged to have been made by the appellant and about the loud voice in which he raised objection with regard to a particular part of his deposition which was being recorded by the learned Sessions Judge. In any event as is evident from his subsequent conduct in expressing apology asking for pardon and giving assurance that no such conduct will be repeated on his part in future there was no room for taking a serious view of the matter and for exercising the power under sec. 346 (1) of the Code of forwarding the case to a Magistrate for trial on the ground that the offence committed in the presence of the learned Sessions Judge was such that the offender should be imprisoned otherwise than in default of payment of fine or that a fine exceeding two hundred rupees should be imposed upon him. ( 8 ) IN the first case when the appellant was asked the question as to what was the distance between his office and the gate of the castle he replied that he had not measured that distance. Now this was a perfectly legitimate answer and the remarks of the learned Sessions Judge pulling up the appellant and instructing him that he was a responsible officer and he should not answer in a manner in which a layman should answer was not in proper taste. The appellant was naturally got disturbed and lost control and uttered objectionable words to the effect that the question asked by the learned Advocate for the accused was one without basis and the court was protecting him or supporting him. The appellant was naturally got disturbed and lost control and uttered objectionable words to the effect that the question asked by the learned Advocate for the accused was one without basis and the court was protecting him or supporting him. These words were uttered in the heat of moment all of a sudden and there was nothing to warrant a conclusion that he did so with an intention of offering any insult to the court. It is true a witness has to be respectful to the Court and dignity and decorum of the court must be maintained. But it is equally true that courts have also to show restraint and should treat a witness with the respect he deserves. After all the witness concerned was a responsible Government officer of some status and would naturally get upset if he is roughly handled inspite of the fact that the answer which he gave to the question put was legitimate. Therefore in such circumstances if the witness in the heat of moment loses control and unintentionally behaves in an improper way unless his behaviour is calculated fraudulent intentional and persistent a serious view should not be taken. It seems the incident was of a trivial nature and the court should have risen to the occasion and behaved in a dignified manner displaying a bit of large heartedness and ignored it after drawing the attention of the witness to the improper part of his conduct and after giving him a warning that if such behaviour is repeated a serious view will be taken. In any event when in answer to the show cause notice the appellant came out with an unconditional apology and a prayer for pardon coupled with assurance that he would not repeat this performance in future it was sufficient to purge himself of improper behaviour and the matter should have ended there. Again as earlier stated this was not a case for exercise of jurisdiction under sec. 346 (1) of the Code. The whole incident was of too trivial a nature to merit any serious consideration resulting in the lodging of two prosecutsons against the appellant for an offence under sec. 228 of the Indian Penal Code. . Again as earlier stated this was not a case for exercise of jurisdiction under sec. 346 (1) of the Code. The whole incident was of too trivial a nature to merit any serious consideration resulting in the lodging of two prosecutsons against the appellant for an offence under sec. 228 of the Indian Penal Code. . ( 9 ) SO far as the second incident is concerned in my opinion there does not appear to be any justification for ordering prosecution of the appellant in exercise of jurisdiction under sec. 346 (1 ). The grievance of the learned Sessions Judge was that while he was dictating deposition of the appellant the appellant intentionally caused interruption to the work of dictation by the court by shouting loudly and by taking objection against dictation Now so far as taking of objection is concerned every witness is entitled to draw the attention of the court to a particular part of the evidence which is recorded and to say that the statement which the witness had made while under examination was not correctly recorded. Of course it would be for the court to allow his objection and to correct the record or to reject the objection. But it cannot be said that a witness by taking his objection was causing interruption to the proceeding much less intentionally. With regard to shouting in loud voice the appellant has also in his reply to the show cause notice given his explanation as earlier set out. As stated by him at the time of lodging his objections he seemed to have raised his voice but that was natural and as he says in doing so he had no intention of insulting the court nor had he any intention of interrupting the work of ditcation by the court. He has however expressed regrets asked for pardon and given an assurance that in future he will take care to see that such things are not repeated. This incident was a mere trifle and the learned Judge particularly after the explanation and unconditional apology and assurance for good behaviour in future should have treated the chapter as closed instead of taking a serious view of the matter leading to the launching of the prosecution against the accused. ( 10 ) THESE two cases therefore are fit cases in which this court while exercising its powers under sec. ( 10 ) THESE two cases therefore are fit cases in which this court while exercising its powers under sec. 341 (1) should direct withdrawal of the said two complaints which have been filed against the appellant and which are pending before the learned Magistrate. ( 11 ) BOTH the appeals therefore succeed and are allowed and it is ordered and directed that the complaints in criminal case No. 5470 of 1978 and criminal case No. 1469 of 1978 in the court of the learned Judicial Magistrate First Class first court Surat be withdrawn and the said two proceedings be quashed. Orders accordingly in both the appeals. .