K P SINHA Vs. AFTABUDDIN

JUDGEMENT

(1.) . The petitioner has been summoned to take his trial under Sections 384 and. 504 of the Penal Code by the District Magistrate, Purnea, by his order dated 23-3-1954.

(2.) THE opposite party, Aftabuddin, son of Ashghar Ali, filed a complaint on 7-2-1952, for offences having been committed by the petitioner on 5-2-1952. From the petition of complaint, which is on record, it appears that a party of police men, including the petitioner, who was at that time a Sub-Inspector of Police of Police Station, Islampur, came to the house of the complainant and enquired about an absconder, Faziruddin, who had been implicated in a dacoity ease, and as he bad been evading arrest, proceedings under Sections 87 and 88 of the Criminal P.C. appear to have been taken against him; and this party of police men wanted to attach the properties belonging to Faziruddin. THE opposite party, who is brother of Faziruddin, objected to the attachment of the properties; on the ground that the properties did not belong, to the absconder but they belonged to the opposite party. THE Sub-Inspector of Police, the petitioner before this Court, did not attach any importance to the objection raised by the complainant but proceeded to attach the properties and to load them, in a truck for the purpose of being carried to court. According to the complainant, he had to pay Rs. 500/- in cash and to deliver to the Sub-Inspector of Police two big gold ear-rings as security for payment of another five hundred rupees in cash sometime later. THE properties were then released. It is said in the petition of complaint that the complainant was threatened with criminal prosecution and farther that he would be put in 'hajat'. On the payment being made to the Sub-Inspector of Police, as I have said, the properties which had been seized were released. Whether the properties had been-attached or not docs not appear from the complaint but reading the complaint and the statement of the complainant on solemn affirmation that position appears to be clear that the properties had been attached according to the complainant's allegations. Two days after, the complaint in question was filed. THE Sub-divisional Officer, acting under Section 202 of the Criminal P.C., made over the case for enquiry to a Deputy Magistrate, one Mr. D.P. Singh. On 24-3-1952, the report was received by the learned Sub-divisional Officer and, on 28-4-1952, he dismissed the complaint. On an application to the learned Sessions Judge by the complainant, the learned Judge ordered further enquiry on 16-8-1952. When the matter went back to the learned Sub-divisional Officer, he again dismissed the complaint on 30-4-1053. THE learned Sessions fudge was again moved, and he again ordered further enquiry on 24-9-1953, and by the order of that date he directed that the District Magistrate himself should make the enquiry or have the matter further-enquired into by a Magistrate other than the Sub-divisional Officer. One Mr. A. L. Shaw, a Magistrate, was entrusted with this enquiry, but before him the complainant refused to produce witnesses and he made, an application to the District Magistrate under Section 528 of the Criminal P.C. THEreupon, the District Magistrate recalled the case to his own file on 23-3-1954, and on that date he issued processes under Sections 384 and 504 of the Penal Code against the petitioner. THE petitioner has now moved this Court for quashing of the proceedings started against him. His main ground is that the offence which the complaint disclosed was an offence also under Section 161 of the Penal Code and, therefore, no cognizance ought to have been taken" in law by the District Magistrate without proper sanction, as required by Section 6 of Act II of 1947 (THE Prevention of Corruption Act, 1947). His other contention is that, as the actual words used have not been mentioned in the complaint, the petitioner could not be prosecuted for an offence under Section 504 of the Penal Code; and further that the allegations contained in the petition of complaint do not amount to an offence under Section 504.

(3.) COGNIZANCE has also been taken under Section 504 of the Penal Code which runs thus: "Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." In the first place, the words used or supposed, to have been used by the petitioner which the complainant understood to be words of insult have not been mentioned in the complaint. It is necessary in a case like this to give out the actual words used, otherwise the Court would not be in a position to decide whether the words used amounted to intentional insult. In the second place, the words used which amounted to intentional insult should be such as to give provocation for the commission of a breach of the peace. No allegation has been made in the complaint that the intentional insult was such as to give provocation for any breach of the peace. In my judgment, therefore, Section 504 of the Penal Code has no application at all to the facts given out in the complaint.