Emperor vs Shankar Krishnaji Gavankar

Beaumont, C.J.—This is a revision application which arises in the following circumstances. On November 9, 1940, a criminal case was being tried before Mr. Salvi, Third Class Magistrate at Malvan, and one of the pleaders in the case was the present applicant, Mr. Gavankar. Mr. Gavankar put certain question''s to a witness in cross-examination which the learned Magistrate disallowed. Thereupon Mr. Gavankar seems to have lost his temper and undoubtedly used insulting language to the Court; and I accept the statement of the learned Magistrate as to what took place. The pleader might then have been prosecuted u/s 228 of the Indian Penal Code for offering insult to a public servant while such public servant was sitting for a judicial proceeding. In the normal course such a prosecution would be commenced and prosecuted in accordance with the provisions of the Criminal Procedure Code; there would be a complaint by the Magistrate who had been insulted, and the case would be heard by some other Magistrate. But then Section 480 of the Criminal Procedure Code provides, so far as material, that when any such offence as is described in Section 228 of the Indian Penal Code is committed in the view or presence of any civil, criminal or revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender as therein mentioned. That is a special power given to a Court to deal with a case of insult offered to the Court in its presence. The Court is not bound to hear any evidence. It can rely on its own opinion of what happened, and can detain the offender in custody, take cognizance of the offence and sentence him. But all that must be done before the rising of the Court, i.e., on the same day. Here unfortunately the learned Magistrate seems rather to have confused the procedure u/s 480 with the normal procedure under the Criminal Procedure Code. He purported to act u/s 480, but heard evidence and postponed sentence until two days later, when he imposed a fine of Rs. 200. That he could not do u/s 480.

We have been referred to a case, Queen-Empress v. Paiambar Bakhsk ILR (1889) 11 All. 361, in which Mr. Justice Straight held that a Magistrate proceeding u/s 480 was entitled to postpone passing sentence until some subsequent day if the accused was not thereby prejudiced. His view was that the postponement was a mere irregularity which could be cured u/s 537 of the Code. With all respect to the learned Judge, I am quite unable to accept that view. It is not a question of any distinction between an illegality and an irregularity, or of prejudice to the accused. The Magistrate had no power to impose a fine upon the pleader without a trial except u/s 480, and the only power conferred upon the Court by that section is to take cognizance and impose a sentence on the same day. There is no power to act upon a subsequent day. The order must therefore be set aside.

In this case we might have directed a prosecution u/s 228, but the pleader has tendered a full apology to the learned Magistrate, and to this Court, for what took place. No doubt he lost his temper and said things which afterwards he regretted. As he has apologized, we think it is not a case in which we ought to direct a prosecution u/s 228. We would however make it clear that this Court will always protect subordinate Courts from insult, and if the pleader had not apologized we should undoubtedly have directed a prosecution. As it is, we merely set aside the order of the learned Magistrate. The fine, if paid, should be refunded.