JUDGMENT Devinder Gupta, J —Petitioner, Madhu Bala Sharma, was posted as Sub-Divisional Magistrate, Mandi, Himachal Pradesh, in the year 1987. On February 21, 1987, a reference under section 15 of the Contempt of Courts Act, 1971 (hereinafter referred to as "the Act") was forwarded by her to this court for initiating action under the Act against the respondent, who is a practising Advocate in the District Courts, Mandi, for causing obstruction in the judicial proceedings and intentionally insulting the court. A resume of facts necessary for adjudication of the petition are as follows: 2. One Shri Padam Singh filed a petition under section 133 of the Code of Criminal Procedure against one Shri Netra Nand in the court of Sub-Divisional Magistrate, Mandi, complaining obstruction to a public pathway. Though, a statement was made in the court that a civil dispute in respect of the alleged pathway between the parties had been compromised yet the criminal proceedings continued and ultimately at the joint request of the parties, the Sub-Divisional Magistrate on December 24, 1986, directed the spot inspection to be conducted on January 19, 1987 in the presence of the parties and the revenue officials. The record further reveals that in the meanwhile the Sub-Divisional Magistrate (the petitioner) received an intimation from the Additional District Magistrate, Mandi to pay a visit to the site in question and take action on the representation dated December 19, 1986 received from the residents of Upper Palace Colony, Mandi, with respect to the same pathway. On receipt of this communication, the petitioner visited the spot and also called for the report of the Patwari as to whether there was any encroachment on the Government land. On January 2, 1987, the petitioner sent & communication to the Additional District Magistrate, Mandi, pointing out that as per spot inspection and also as per the report of the Patwari there was no encroachment on the Government land and further pointed out that a case under section 133 of the Code of Criminal Procedure is going on in her court between the two parties with respect to the same pathway and that she had satisfied herself that there was no encroachment of Government land. 3. 3. On January 19, 1987, when the aforementioned case titled as Padam Singh v. Netra Nand was called by the petitioner in her court, it appears that the respondent, who was representing the complainant in the said case, objected as to why the petitioner had visited the spot in the absence of the parties. The manner in which the respondent addressed the petitioner and what followed next appears to be the cause for prefering this reference for initiating action under the Act against the respondent. 4. The version of the petitioner is that when the case was called, the parties appeared alongwith their respective Counsel and as the spot had already been inspected on January 1, 1987, in connection with the complaint received from the residents of the area, the parties were being asked as to whether they still wanted the spot to be inspected and that they were being made to understand the details of the spot. At that stage the respondent intervened and started shouting at the top of his voice by saying that the facts of the case were not being appreciated and the respondent continued shouting incessantly. As per the petitioner, she asked the respondent to low down his tone but the respondent shouted again in a threatening tone and insulting manner by saying I am also an officer of the court and you have to listen to whatever I say". At this stage, according to the petitioner, the case was adjourned till after lunch and she asked the court peon to call the other case and when the file of the other case was being examined, the respondent refused to leave the court and continued jeering at her in a most unbecoming manner to the prestige of the court and as a result of the action of the respondent, the other cases could not be properly examined and the court was adjourned till after lunch and even at that stage respondent kept on interfering with the working of the Reader of the court by cracking filthy jokes at the top of his voice. 5. The petitioner has also recorded the aforementioned happening in the order-sheet of Criminal Case No 14 i of 1984, titled as Padam Singh v. Netra Nand, but with some variance. 6. 5. The petitioner has also recorded the aforementioned happening in the order-sheet of Criminal Case No 14 i of 1984, titled as Padam Singh v. Netra Nand, but with some variance. 6. The version of the respondent is that his client had informed him that the petitioner had inspected the spot behind his back without any notice to him and that when the case called the respondent appeared along with his client before the petitioner and pointed out that the spot had been inspected by her without any notice to the parties and behind the back of his client and that the said act of the petitioner was irregular as intimation ought to have been given to the parties regarding the spot inspection. The petitioner without any rhyme or reason asked the respondent to Jow down his voice to which the respondent stated that it was his natural voice and not artificial one, upon which the petitioner became furious and called the court peon and ordered him to expel the respondent from the court room. The respondent at that stage pointed out that he was possessing a valid license to practise as an Advocate and had got a legal right to appear in court but the petitioner did not pay any heed to the request of the respondent. The petitioner thereafter immediately left the court room and went to her chamber. According to the respondent he, alongwith his client, came out of the court room and immediately made a written complaint to the District Bar Association for the alleged misbehaviour of the petitioner with him, upon which the Bar Association, Mandi, passed a resolution pertaining to the alleged unbecoming and insulting behaviour of the petitioner with one of their colleagues and resolved to abstain from the court of the petitioner till the settlement of the matter and to take legal action against the petitioner for her insulting behaviour, 7. There is a serious dispute as to what actually happened in the court room. The version of the petitioner is supported by Shri V. N. Sharma, Advocate and Shri Netra Nand who ha ye filed their respective affidavits. There is a serious dispute as to what actually happened in the court room. The version of the petitioner is supported by Shri V. N. Sharma, Advocate and Shri Netra Nand who ha ye filed their respective affidavits. In support of the version of the respondent, there are affidavits of Shri Gajinder Pal Guleria, Advocate, Shri Gobind Ram, Munshi of Shri Ghanshyam Das Saini, Advocate, and Shri Padam Singh Besides this, the respondent has placed on record a copy of the criminal complaint filed by him on January 28, 1987 in the court of the Chief Judicial Magistrate, Mandi, against the petitioner with respect to the incident in question for offences under section 323/504 and 500, I. P. C. alongwith copies of statements made by him, Shri G. P. Guleria and Shri M. P. Kaushal before the Judicial Magistrate, 1st Class, Court No. II, Mandi, in the said criminal complaint. 8. From the perusal of the pleadings and the affidavits filed by the parties it appears that the situation developed when objection was taken by the respondent as to the spot inspection by the petitioner without notice to the parties. It appears that the objection to this kind of course was made with sufficient vehemence and it may be possible that the respondent may have pressed his objection with high tone whereby the petitioner apprehended misbehaviour and insult to the court and further insistence on the part of respondent to be obstruction in the judicial proceedings. It is not possible to say with exactitude what the petitioner actually said for reason of divergence in the versions of the witnesses. Some have gone even to the extent of saying that the words spoken were in Punjabi which fact has been repudiated by others stating that the respondent does not speak Punjabi at all. 9. Then it is not clear as to who was actually present in the court at the time of this incident Parties have named different sets of Advocates but even those who can be said to be the probables, even they have stated differently. 10. It is undeniable that the respondent is a, practising Advocate at the District Courts Mandi for the last 15 years and the petitioner has taken to the service of Magistracy in recent past but after all she was the Presiding Officer and the respondent a court officer. 10. It is undeniable that the respondent is a, practising Advocate at the District Courts Mandi for the last 15 years and the petitioner has taken to the service of Magistracy in recent past but after all she was the Presiding Officer and the respondent a court officer. It is unfortunate that such an incident which could be avoided has taken place. Parties appear to have mis-understood each other, However, the work they were discharging was solemn which could be done with each others endeavour and co-operation. After all both the parties were engaged in the task of administering justice to the litigants. There was no need to take stiffening stands. If it had happened with the one, the other could display calm, compassion and poise. That would have not only saved the situation but also created good impression Amongst the litigants or atleast among themselves for future. 11. It is the pious duty of a lawyer to extend regard and assistance to the court in a dignified manner and in return the Presiding Officer should extend courtesy and accommodation. There should be no cause for commotion and impropriety and it is expected particularly from senior lawyers that they are respectful and dignified to the court thus setting an example for young ones at the Bar. The Presiding Officers on the other hand should also realise the difficulties of the Bar Members who are after all exposing the cause of clients and sometimes when they feel that their point of view is not being taken note of seriously and carefully, they, in order to emphasise it. start raising their voice which may be mistaken to be not in tone with the court atmosphere and the temperament of the Presiding Officer, but there are also others who address the court with high pitch voice which should not be mistaken to be against the decorum of the court, insulting to the Presiding Officer and causing obstruction to the court proceedings. Presiding Officer should not be too sensitive in these circumstances. He should try to bear till the behaviour is dignified, reasonable and within limits of decency. 12. As earlier observed, we have allegation against petitioner. Presiding Officer should not be too sensitive in these circumstances. He should try to bear till the behaviour is dignified, reasonable and within limits of decency. 12. As earlier observed, we have allegation against petitioner. In face of this kind of dispute on facts, it is not possible for us to come to a definite conclusion as to the fault of the respective parties to this incident and no action can, therefore, be taken for contempt as prayed by the petitioner. 13. Similar situation arose in M. R. Prashar and others v. Dr. Farooq Abdullah and others, AIR 1984 SC 615, where the allegation against the Chief Minister was that in a public meeting he uttered certain remarks against the judiciary which, if proved, were contemptuous and thus punishable. However, in the proceedings initiated under the Contempt of Courts Act, 1971, the Chief Minister denied having made such utterences. It was an extempore speech and no record of the same was prepared. The result was that there was no positive proof against the contemner and the court dismissed the petition after applying the principle that in a criminal contempt, the particular statement alleged to be made by the contemner must be proved beyond reasonable doubt. 14. Again in Contempt Petition (Criminal) No. 6 of 1986, Brij Chauhan v. Shania Kumar and others, decided by this court on July 3, 1989, the allegation against the respondent was that in a public speech at Chandigarh, he made certain contemptuous allegations against the then sitting Judge of this court (Justice R. S. Thakur) that in the Inquiry Commission relating to the payment of money to scab affected orchardists (Scab-Scandle), he went out of the terms of reference of the Commission by exonerating the then Chief Minister of/Himachal Pradesh (Virbhadra Singh), and for this kind of report, he was benefited by appointing him a High Court Judge. This speech was published by way of a News-item in the Indian Express, Chandigarh on September 3, 198o. In reply to the contempt notice, it was stated by Shri Shanta Kumar that he had not given any statement in the Press Conference in the manner in which the News-item was published in the News Paper. Shri Rahul Singh, Resident Editor, Indian Express, stated that the information was supplied to him by the Press Correspondent Shri Onkar Nath Garg of Indian Express stationed at Chandigarh. Shri Rahul Singh, Resident Editor, Indian Express, stated that the information was supplied to him by the Press Correspondent Shri Onkar Nath Garg of Indian Express stationed at Chandigarh. Shri (Dakar Nath Garg in his affidavit admitted that he supplied the news but according to him the news supplied by him was correct. Again, in his counter affidavit Shri Shanta Kumar asserted that Shri Onkar Nath Garg was never assigned any duty of reporting in any of his Press Conferences held at Chandigarh and that Shri Ookar Nath Garg was not present in the Conference dated September 2, 1986 Therefore, whatever was reported was incorrect and was based on hearsay and the affidavit filed by Shri Garg was incorrect. In these circumstances the court observed:—- "It is not possible to decide in these proceedings the disputed questions of fact. The matter relates to September 3, 1986 from which about years have elapsed....,. 15. The court taking in view the entire facts and circumstances of the case discharged the notice of contempt and dismissed the petition. 16. During the course of arguments the learned Counsel for the petitioner submitted that the averments made in para 10 of the reply by the respondent, filed on May 3, 1987, allegation of partiality and vindictiveness have been alleged relating to the decision of certain cases mentioned in the paragraph These allegations amount to contempt and the respondent is liable to be punished for the same. Strong reliance was placed onF- M. Sankaran Namboodripad v T. Narayanan Nambiar, AIR 1970 SC 2015 ; Baradakanta Mishra v. Registrar Orissa High Court and another, AIR 1974 SC 710; Ramdayal Markarha v. State of Madhya Pradesh, AIR 1978 SC 921 and Rachapudi Subha Rao v. The Advocate General Andhra Pradesh, AIR 1981 SC 755. We are not convinced by this kind of submission for the reasons that the petitioner made mention of these cases on the basis of his bonafide and reasonable apprehension since these cases had actually been decided. Further, it may be that the petitioner did not decide those cases vindictively and/or partially, but, as a matter of fact, the respondent did not actually address arguments in any of these cases and it is a different thing that the parties may have in some of them desired the petitioner to decide them without waiting for the lawyers. Further, it may be that the petitioner did not decide those cases vindictively and/or partially, but, as a matter of fact, the respondent did not actually address arguments in any of these cases and it is a different thing that the parties may have in some of them desired the petitioner to decide them without waiting for the lawyers. There are cases in this list which were got transferred by their respondent from the court of the petitioner and the version of the petitioner that they were transferred by the Collector and she had also no objection for the transfer of these cases is of little significance since for the transfer of cases one has obviously to approach the higher authority, the Collector and as a normal practice, before passing the final order the authority concerned seeks the report of the Presiding Officer of the court from where the cases are intended to be transferred. Finally, the cases relied upon by the petitioner are cases of gross and proven contempts which is not the position in the present case. Hence, we reject this submission of the learned Counsel for the petitioner. 17. During the course of the arguments, an objection has also been raised by Shri Inder Singh, learned Counsel for the respondent that proviso to section 10 of the Act is a complete bar for this court to take cognizance of contempt alleged to have been committed in respect of the court of the Sub-Divisional Magistrate, Mandi, inasmuch as, the contempt complained of is an offence punishable under section 228 of the Indian Penal Code. This objection has been controverted by Shri Harbhagwan Singh, learned Counsel for the petitioner, by placing reliance upon two decisions of the Supreme Court in Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 and State of Madhya Pradesh v. Revashankar, AIR 1959 SC 102. 18. Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 was a case in which the publisher and Managing Editor of a Telgu weekly was found guilty of contempt of Court by a Division Bench of the Madras High Court for having published in the issue of the weekly an article making insinuous remarks against the Sub Magistrate, Kovvur. Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 was a case in which the publisher and Managing Editor of a Telgu weekly was found guilty of contempt of Court by a Division Bench of the Madras High Court for having published in the issue of the weekly an article making insinuous remarks against the Sub Magistrate, Kovvur. During the appeal before the Supreme Court, an argument was raised that as the contempt in the case was said to have been committed in respect of a court subordinate to the High Court and the allegations made in the article in question constituted an offence under section 49^ of the Indian Penal Code, the jurisdiction of the High Court to take cognizance of such a case is expressly barred under section 2 (3) of the Contempt of Courts Act, 1926 (corresponding to section 10 of 1971 Act). While considering this argument, the Supreme Court held that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate courts can sufficiently vindicate their dignity under the provisions of criminal law in such cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court under section 2 (3) of the Contempt of Courts Act but it would not be correct to say that the High Courts jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code. 19. In the latter case of State of Madhya Pradesh v. Revashankar, AIR 1959 SC 102, the Supreme Court was dealing with almost a similar .question In that case, in an application for transfer of a criminal case, some serious aspersions were made against the Magistrate trying the said case The said aspersions were also repeated in a subsequent affidavit and upon this the Magistrate brought the matter to the notice of the Registrar of the Madhya Bharat High Court about the conduct of one Revashankar for having made such aspersions against him, for necessary action under the Contempt of Courts Act. On receipt of the report, the High Court directed the issue of notice to Revashankar to show cause as to why action should not be taken against him under the Contempt of Courts Act, 1952. On receipt of the report, the High Court directed the issue of notice to Revashankar to show cause as to why action should not be taken against him under the Contempt of Courts Act, 1952. The case was ultimately heard by a Division Bench of the High Court and it held that by reasons of provisions of section 3 (2) of Contempt of Courts Act, the jurisdiction of the High Court was ousted, inasmuch as, the act complained of constituted an offence under section 228 of the Indian Penal Code While interpreting the provisions of section 3 (2) of the Contempt of Courts Act, 1952, the Supreme Court was of the view that the learned Judges of the Madhya Bharat High Court were wrong in their view that prima facie the act complained of amounted to an offence under section 228 of the Indian Penal Code and no more, inasmuch as, the High Court did not go into the merits and ultimately found in the facts and circumstances of the case that the act complained of would not amount to an offence under section 228 of the Indian Penal Code. It ofe* served (in paragraph 7) as under;— .........As soon as there is an element of insult in the act complained of, section 228, Indian Penal Code, is attracted and the jurisdiction of the High Court to take cognizance of the contempt is ousted. We are unable to accept this contention as correct. Section 228 deals with an intentional insult to a public servant in certain circumstances. The punishment for the offence is simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both Our attention has been drawn to the circumstance that under section 4 of the Act the sentence for contempt of court is more or less the same, namely, simple imprisonment for a term which may extend to six months The fine is a little more and may extend to two thousand rupees. Section 4 of the Act contains a proviso that the accused person may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. We do not, however, think that a similarity of the sentence in the two sections referred to above is a real test. Section 4 of the Act contains a proviso that the accused person may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. We do not, however, think that a similarity of the sentence in the two sections referred to above is a real test. The true test is : is the act complained of an offence under section 228 Indian Penal Code, or is it something more than that ? If in its true nature and effect, the act complained of is really scandalizing the court rather than a mere insult," then it is clear that on the ratio of our decision in Ramkriskna Reddy case AIR 1952 SC 149, the jurisdiction of the High Court is not ousted by reason of the provision in section 3 (2) of the Act." 20. We are expressing no opinion on the merits of the case nor on the correctness or otherwise of the aspersions made but the act complained of cannot be said to be falling within the ambit of section 228 of the Indian Penal Code thereby ousting the jurisdiction of this court to take cognizance of the Act complained of and while applying the ratio of the aforementioned decisions of the Supreme Court to the facts and circumstances of the present case we hold that this court has jurisdiction in the matter. 21. The result of the aforesaid discussion is that in view of the facts and the circumstances already discussed above, it is not possible to come to any exact conclusion in the matter, therefore, we think it proper to discharge the notice and close the matter. Order accordingly.-