Sambhunath Puhan vs State of Orissa

B.K. Behera, J.—Upon hearing Mr. M.N. Das for the Petitioner and Mr. A. Rath, the learned Additional Standing Counsel, I find, for the reasons to follow, that the order of conviction recorded against the Petitioner by Mr. K.S. Misra, Sessions Judge, Balasore, u/s 504 of the Indian Penal Code (for short, the ''Code''), sentencing him to pay a fine of Rs. 100/- and in default of payment thereof, to suffer simple imprisonment for a period of fifteen days, of which the Petitioner had no notice, as the charge framed against him in the trial court was only u/s 324 of the Code for which he stood convicted, cannot be sustained in law and has caused serious prejudice to the Petitioner, as rightly contended on behalf of the Petitioner and fairly submitted on behalf of the State.

The case against the Petitioner was that on the 15th June, 1979, he entered Harihat house, abused the first-informant (P.W. 1) and his companions in filthy languages and assaulted two of them namely, P.Ws. 1 and 2. The appellate court held that the case u/s 324 of the Code had not been established and while setting aside the order of conviction and sentence recorded by the trial court for that charge, convicted the Petitioner u/s 504 of the Code.

In order to attract Section 504, of the Code, the accused person must have intentionally insulted thereby giving provocation to any person, intending or knowing it to be likely that such provocation would cause him to break the public peace or to commit any other offence. The appellate court did not even keep on record as to what language had been used by the Petitioner. Its judgment does not indicate that there was evidence that the words uttered by the Petitioner had caused any provocation. On the other hand, the finding of the learned appellate Judge is that there had been a ''clash'' and an exchange of words between the parties. Without referring to the evidence and scanning it and without proper application of mind, the learned Judge recorded the impugned order by coming to an abrupt and unfounded conclusion that the Petitioner had ''insulted'' P.Ws. 1 and 2 and their companions and holding that the commission of an offence punishable u/s 504 of the Code had been established.

The appellate judgment does not include that the learned Public Prosecutor had contended that an order of conviction u/s 504 of the Code could be recorded. There is nothing in it to show that the learned Counsel for the Petitioner had been put to notice by the appellate court to submit as to why the Petitioner should not be convicted u/s 504 of the Code.

In view of what has been stated above, the order of conviction recorded by the appellate court cannot be allowed to stand.

I would allow the revision, and set aside the order of conviction and sentence passed by the appellate court.