DADIA OTTAMCHAND MOTICHAND Vs. HEMKUNVER POPATLAL

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Jamnagar recommending that the conviction of two persons Dadia Ottamchand Motichand and Dadia Manharlal Ottamchand under sec. 504 Indian Penal Code by the Judicial Magistrate First Class Jamnagar be set aside. The two persons were also convicted under sec. 323 Indian Penal Code by the learned Magistrate and the learned Sessions Judge observed that the conviction under sec. 323 Indian Penal Code was quite proper and did not justify any reference to the High Court. But in regard to conviction under sec. 504 Indian Penal Code he made a reference holding that all that is proved is that the complainant who is woman by name Hemkunver who is a tenant of the applicants was going to bring water from a common tap and at that time Ottamchand tried to close the dour and refused to allow her to go by that way. The woman however began to go inspite of the obstruction and thereupon both the applicants abused her using obscene words. The learned Sessions Judge therefore thought that abuses were given on a sudden petty quarrel between a landlord and a tenant in connection with drawing of water and that the intention in giving the abuses was not to insult the complainant and to provoke her into committing breach of public peace. He relied upon the case of Vaz v. Dias 32 Bombay Law Reporter 103 and held that the ingredient of intention to insult was lacking in the case. He also held that the nature of the abuses was not known but observed that it is true that it would be virtually impossible for a woman to reproduce the exact words uttered in Court of Law. He observed that the Court must be placed in possession of material showing the nature of abuses used. The learned Sessions Judge further observed that merely from the fact that obscene abuses had been given it was not possible for the Court to infer that the nature of the insult was such as to give provocation to the person insulted to cause breach of public peace. He therefore thought that the conviction under sec. 504 Indian Penal Code is wrong and has therefore made a reference to the High Court to set aside the conviction under sec. 504 Indian Penal Code.

(2.) For the commission of an offence under sec. 504 Indian Penal Code (1) there must be insult (2) the insult must be intentional (3) by the insult the person insulting must give provocation to any other person and (4) he must have also intended or known it to be likely that such provocation will cause the person insulted to break the public peace or to commit any other offence. The insult may be by words or by conduct. Abusive words may amount to an offence under sec. 504 Indian Penal Code if the other ingredients are present. If the other ingredients are not present mere abuses would not amount to an offence under sec. 504 Indian Penal Code. This is merely what was held in 32 Bombay Law Reporter 103 where it has been observed that mere abuse unaccompanied by an intention to cause a breach of public peace or knowledge that a breach of peace is likely does not come within sec. 504. The section itself provides that in addition to intentionally insulting the person insulting must there by give provocation to another person intending or knowing it to be likely that such provocation will cause the person insulted to break the public peace or to commit any other offence. It is an important ingredient of the offence that the person must give provocation to another intending or knowing it to be likely that such provocation will cause him to break the public peace or to commit any other offence. In 32 Bombay Law Reporter 103 the fact that this is one of the ingredients of sec. 504 Indian Penal Code was emphasised In addition it is observed that the insult may be of such a character that a person of ordinary temperament would not complain of the abuse and the abuse might come within the terms of sec. 95 of the Indian Penal Code. Section 95 Indian Penal Code is a general exception and qualifies the provisions of all the sections of the Penal Code. In Emperor v. Rangel 34 Bombay Law Reporter 282 the abusive words used were you damn bloody bastards and cads. The accused is stated to have used these words while leaving a meeting of the share-holders of a Co-operative Bank. It was held that the insult was not intentional but the abusive words were words of mere vulgar abuse. It was observed that the accused did not intend the abusive words to be heard and therefore it was held that there was no intention to insult. But the learned Judges of the Bombay High Court did not lay down any general proposition that the words you damn bloody bastards and cads can never be used without intention to insult. This decision is only helpful to show that even such words may in certain circumstances not amount to intentional insult. In the Bombay case (34 Bombay Law Reporter 282) reference was also made to a Full Bench decision of the Calcutta High Court (Indian Law Reporter 26 Calcutta 653 where a person was convicted under sec. 504 Indian Penal Code for using abusive words such as Sala Haramzada Soor Baper-beta etc. These two cases therefore do not lay down any general principle but are decisions depending on the particular facts of the cases decided. Section 504 Indian Penal Code clearly lays down the ingredients to be proved before a person can be convicted under that section which are: (1) There must be an insult; (2) the insult must be intentional; (3) The person insulting must thereby give provocation to another person and (4) He must have intended or known it to be likely that such provocation will cause the person insulted to break the public peace or to commit any other offence.

(3.) In the instant case no doubt the precise abusive words stated to have been used are not on record. But there is no reason to reject the evidence of the woman that she was abused in obscene terms. If obscene words are used to a woman by a man who is her landlord it is difficult to avoid the conclusion that the man did intend to insult the woman and that he did give provocation to the woman or that he did intend or did know it to be likely that the provocation given will cause her to break the public peace. I cannot therefore agree with the learned Sessions Judge.