Major K. Mathews vs J. Raja Kalifulla

Arumugham, J.—This revision, field under Ss.397 and 401 of the Code of Criminal Procedure, is directed against the judgment of the

learned principal Sessions Judge, Madras rendered in Criminal Appeal No. 18 of 1988 on 2.5.1988, dismissing the same, which was preferred,

challenging the correctness and legality of the order passed by the IV Assistant Judge, City Civil Court Madras, in refusing to entertain the

complaint filed by the petitioner herein, against the respondent, filed under S.340 of the Code of Criminal Procedure Code, for the alleged offence

punishable under S.228 of the Indian Penal Code.

Short facts, which are necessary to appreciate and dispose this revision, as gathered from the impugned judgment and the case records are

stated as follows.

The revision petitioner had filed a suit O.S. No. 7671 of 1985 for some civil reliefs on the file of the IV assistant Judge, City Civil Court, Madras,

which came up for trial on 2.12.1987 in which, applications were also heard. During the arguments, the respondent herein, who is the counsel for

the defendant in the said civil proceedings is alleged to have abused the revision petitioner in the open court and in the presence of the learned IV

Assistant Judge and hit him on the left side of his head over the left ear. According to the petitioner, the said action of the respondent had caused

physical and mental agony, pain and dishonour and so much of anguish to the petitioner. Besides, his activities had also caused interruption, insult

and annoyance to the learned Presiding Judge as well as the proceedings. Accordingly, the trial Judge was requested to take action. Besides, the

Police officials of the Esplanade Police Station, though approached they refused to register any case upon the complaint of the revision petitioner

herein. He was admitted in the Government Hospital and consequently, underwent treatment as an inpatient since his blood pressure exceeded the

limit. Then he got discharged against the medical advice but however, continued his treatment in a private nursing home. Even on 24.11.1987, prior

to the actual occurrence, there were abuses prostrated against the revision petitioner herein. Therefore, according to the petitioner, learned IV

Assistant Judge City Civil Court, should have su-motu taken cognizance of an offence and consequently, preferred a complaint in writing to the

concerned criminal court. Since he has not done so, the revision petitioner filed on application before the trial court paying for taking action against

the respondent herein as contemplated under S.340 of the Code of Criminal Procedure but however, the some was returned. Under the

circumstances by virtue of S.341 of the Code of Criminal Procedure an appeal was preferred by the revision petitioner praying for setting aside the

order of refusal passed by the IV Assistant Judge City Civil Court, Madras.

Upon the above facts, learned principal Sessions Judge has framed the following point for consideration:

Whether an enquiry has to be conducted as prayed for? By framing the above point and taking into consideration of the same, the lower appellate

court it appears, was not satisfied that the very non-action of the IV Assistant Judge, City Civil Court, Madras, did not attract S.228 of the Indian

Penal Code and consequently, held that the in-action of the trial Judge not preferring any complaint against the respondent is correct and that

accordingly, while holding so, dismissed the appeal, by passing the impugned judgment. Aggrieved at this, the appellant, namely, the revision

petitioner herein has came forward with this revision, challenging the legality and propriety of the impugned Judgment.

Mr. K. Mathews, the petitioner as party-in-person while canvassing the grounds of revision, drew my attention to S.341 of the Code of

Criminal Procedure, which assumes every significance in this case, to be considered regarding the appeal, which reads as follows:

(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-S. (1) or Sub-S. (2) of

S.340, or against whom such a complaint has been made by such court may appeal to the Court to which such former court is subordinate within

the meaning of sub-S.(4) of S.195, and the superior court may thereupon after notice to the parties concerned, direct the withdrawal of the

complainant, or as the case may be, making of the complaint which such former court might have made under S.340, and if it makes such

complaint, the provisions of that Section shall apply accordingly.

(2) An order under this section, and subject to any such order, an order under S.340, shall be final, and shall not subject to revision.

While relying on the above section of law, the petitioner drew my attention also to S.228 of the Indian Penal Code, which reads as follows:

Whoever intentionally offers any insult, or cause any interruption to any public servant, while such public servant is sitting in any stage of a judicial

proceeding, snail be punished with simple imprisonment for a term which may extend to six months, or with fine which may extent to one thousand

rupees, or wit both.

While pointing out the above sections of law, petitioner would contend that the facts alleged in this case clearly attracts S.228 of the Indian Penal

Code and that therefore, the learned trial Judge ought to have himself conducted the enquiry by entertaining his complaint even after it was filed

praying for taking action against the respondent for his alleged insult and annoyance caused to the public servant, the presiding Officer, who

presided over the proceedings on 2.12.1987 in the IV Assistant Court, City Civil Court Madras Instead, the refusal to take any action and

entertain his complaint by the trial Judge itself is not correct. So much so the appeal preferred by him under S.341 Crl.P.C. was also rejected by

the lower appellate court on the erroneous approach and that as such, the impugned judgment is liable to be set aside for lack of proper

appreciation of the law and facts in this case.

Mr. I Mahaboob Sheriff, learned counsel appearing for the respondent, resisted the revision, only on the ground that since both courts below

refused to accede to the request of the revision petitioner, by passing an order, which reached its finality and that in the said context, the said order

shall not be subject once again to the present revision as clearly held in sub-S. (2) of S.341 of the Code of Criminal Procedure. According to the

learned counsel for the respondent sub-S. (2) of S.341 Crl.P.C. is a clear bar for entertaining this revision and as such, the present revision is to be

rejected. This contention was repudiated by the revision petitioner.

In the light of the above rival contentions on the question of law, I have proposed to deal with the same at the first instance.

In Lalit Mohan Mondal and Others Vs. Benoyendra Nath Chatterjee, the Supreme Court has observed as follows:

Although against an order passed in appeal under S.341 of the Criminal Procedure, Code, the order would not be revisable by the High Court

under S.397(2), but High Court is entitled to examine the matter under S.482 which expressly overrules the bar contained in s.341 of the Code.

Mere indication by High Court that this is not a fit case for invoking the inherent power under S.482, is not sufficient. The High Court must be itself

satisfied whether the order directing complaint to be filed is expedient in the interest of justice, so as to attract its inherent jurisdiction under S.482

of the Code.

A learned single Judge of the Patna High Court in Ram Lal Tulsiyan Vs. Satyanarayan Banka and Others, , has observed as follows:

Although an inquiry under S.476 (of the old Code) is a preliminary inquiry, there is nothing in the provisions of the Section to prevent the Court

conducting such inquiry to come out its own finding, after considering all the evidence before it, as to whether the alleged offence has been

committed or not. As the Court has to form an opinion as to whether it is expedient in the interest of justice whether the prosecution should be

launched or note the Court may find it necessary to consider and discuss the entire evidence for the purpose of coming to a finding whether the

alleged offence was committed or not and may then decide whether it would be expedient in the interest of justice to launch a prosecution.

A Division Bench of the Bombay High Court in Balshiram Rambhau Awate Vs. The State of Maharashtra, , while dealing with the duty of the

trial court and under S.340 of the Code of Criminal Procedure, has held as follows:

where the public servants and the victim of the attack committed perjury, the trial court could take action summarily under S.344 and punish them

then and there. He would also hold a summary enquiry under S.340(1) and decide whether a complaint should be filed. Where the trial court did

not take such action it was open to the High Court to act under Sub-S. (2) of S.340.

In AIR 1940 526 (Lahore) a learned Single Judge of the Lahore High Court, has held the view that there is no provision of law that a second

application under S.476 (of the old Code) cannot be made where a first application has been dismissed for non-appearance of the applicant. The

principle of ""nemo debet"" is not applicable where there has been no inquiry on the merits and that even S.476-B gives an appeal against a refusal

to make a complaint, not against a dismissal in default. It has further held as follows:

An application under S.476 is entirely different from a complaint; it is merely the means of drawing the Court''s attention to the fact that an offence

appears to have been committed in proceedings before that court, a fact, which it can in the majority of cases verify even without the help of the

applicant. It is manifestly most improper for the court to think its obvious duly of applying its mind to the question whether it should make a

complaint or not, merely because the applicant does not appear in support of his application.

In the light of the above legal ratios enunciated by the Courts of our land, it is gathered, that to entertain a complaint filed under S.340 of the Code,

the Court is required to conduct an inquiry by gathering all materials and find out whether there was & prima facie case or not to be prosecuted or

to be dropped forthwith, even by suo-motu or upon the complaint by the aggrieved person and failure to do so will entail the invoking of the power

under S.341 of the Code of Criminal Procedure, by means of an appeal. The High Court, while sitting in revision under Ss.397 and 401 of the

Code, when it is able to identify the impropriety or illegality committed by a subordinate Judge who passed the impugned judgment or order, which

causes miscarriage of justice or denial of justice, then, the accepted position is, that irrespective of the bar provided under sub-S. (2) of S.341 of

the Code, can intervene, by virtue of the inherent power made available under S.482 of the Code and it is the well settled principle of law in this

regard. This being the position, then, I have to consider whether the instant revision can be allowed having regard to the alleged facts and

circumstances of the case or not.

There was no dispute or controversy regarding some incident that happened on 2.12.1987 in the open Court of the IV Assistant Judge, City

Civil Court, Madras, while the applications above referred were being heard by the learned Judge. Pertinent at this stage, to extract the relevant

passages found in the remarks called for and sent by the learned trial Judge dated 8.12.1987 and addressed to the Principal Judge, City Civil

court, Madras, within six days after the alleged occurrence, which is, as follows:

I submit that on 2.12.1987 the matter was heard by me from 2.55 p.m. to 3.15 p.m. and again from 4. p.m. to 4.30 p.m. on 2.12.1987, in the

midst of arguments by Major K. Mathews, there were altercations between the plaintiff and Mr. J. Raja Kalifulla and I could hear both of them

saying shut up. In the next moment, I saw Mr. J. Raja Kalifulla, the advocate for the defendants slapping Mr. Major K. Mathews on his cheek in

the open court hall. Major K. Mathews immediately said that he is also capable of assaulting the said advocate but he would not stoop to that

level. In the meantime, one advocate, Mr. A. Muthu who was present in the court-hall in connection with an emergent application in I.A. No.

22444/87 in O.S. No. 10809/87 intervened and pacified Mr. J. Raja Kalifulla and Major K. Mathews. I submit that the action of advocate, Mr.

Raja Kalifulla amounted to contempt of Court but since he apologised to me at once for his behaviour, I did not take any action against him for

contempt.

Then with regard to the counter allegations made by the respondent against the revision Petitioner herein, the remarks submitted by the earned trial

Judge speaks the truth. Thus, a plain reading and understanding of the above passage extracted clearly demonstrates the fact that the incident

happened on the relevant day in the open court requires an inquiry to be conducted and proceeded with in accordance with law.

Then, it appears upon the written complaint given by the revision petitioner before the earned trial Judge, praying for action to be taken against

the respondent, while refusing to entertain the same, the learned IV Assistant Judge, City Civil Court, Madras, has made the following order:

Returned

Regarding the occurrence, this court has already submitted a report to the principal Judge, City Civil Court, Madras. Hence in the interest of

justice I consider that an enquiry by myself is not proper

(Sd.)... ...

23.1.1988

I.V. Assistant Judge

C.C.C. Madras.

This order, in my considered view, amounts to a clear refusal of entertaining the complaint on the ground that to entertain the said complaint by

himself, namely, IV Assistant Judge, City Civil Court, Madras, who presided over the Court on 2.12.1987 since a party, was not proper but not

on the ground that since the respondent had tendered apology, he is declined to entertain the said complaint. The above order does not amount to

a speaking order while refusing to entertain the complaint on merits, as pointed out by the learned Sessions Judge, in the appeal. It has to be noted,

that since the learned IV Assistant Judge, was present and in whose presence, the alleged incident had happened on 2.12.1987 and as called for

by the Principal Judge, he has sent the remarks already and that for the above said reasoning, he has returned the complaint stating that in the

interests of justice conducting by himself an enquiry was not proper, which, in my considered view, amounts to a candid refusal for entertaining the

complaint. A careful perusal of the impugned judgment rendered by the principal Sessions Judge, clearly discloses that the above said factum has

been totally overlooked and has not been considered at all.

This is a case where a person while projecting his grievances before a court of law, by means of an argument, was attacked in the presence of

the learned IV Assistant Judge, City Civil Court, Madras as evident form his report sent to the Principal Judge, City Civil Court, Madras, at the

earliest point of time. According to the same Judge, it clearly amounts to contempt of court and further it is seen, that he himself felt that it was not

proper for him to conduct an inquiry for the above said reason and thus, by an indirect way, the complaint lodged under S.340 of the Code of

Criminal Procedure, has been controverted or refused, which, in my clear view, causes a great injustice and serious prejudice to the revision

petitioner herein. Thus, in the context of the above clear picture and established circumstances, the very finding of the lower appellate Judge in

rejecting the appeal on the ground that S.228 of the Indian Penal Code has not been attracted and accordingly, the rejection of the appeal is totally

erroneous, unknown to law and it suffers want of legal competence, namely, ''and propriety''. In short, the earned Principal Sessions Judge has

clearly overlooked all legal principles and the justice to be done to the parties by conducting an inquiry, in the context of the facts and

circumstances like the one, involved in the present case. Thus, having considered, I feel, that this revision can be entertained for the above said

reasons and it has got every merits and accordingly, this impugned order is liable to be interfered with in this revision. In the interests of justice, I

deem it necessary to set aside the impugned judgment and accordingly, direct the IV Assistant Judge, City Civil Court, Madras to entertain the

complaint given by the petitioner and conduct an inquiry thereupon by giving an opportunity for both parties to adduce evidence, both oral and

documentary and that direction will meet the ends of justice.

In the result, the revision succeeds. The impugned judgment rendered by the Principal Sessions Judge, in C.A. 18 of 1988 dated 2.5.1988, is

hereby set aside. Accordingly, the present IV Assistant Judge, City Civil Court, Madras, is directed to comply the inquiry and dispose of the same

in accordance with the law, as expeditiously as possible.