Kishor vs The State

B. Sreenivas Gowda, J.—The petitioner in this petition filed under Section 397 of the Criminal Procedure Code seeks to set aside the order of conviction and sentence dated 15.10.2014 passed in Sessions Case No. 41/2013 by the Prl. Sessions Judge, Bidar and to acquit the petitioner.

Learned counsel for the petitioner submits the impugned order passed by the trial Court sentencing the petitioner to undergo imprisonment of three months is contrary to well established principles governing the criminal law and hence deserves to be set aside.

He submits the trial Court has given a complete go-bye to all known cannons of criminal jurisprudence and established procedures of Criminal law in sentencing the petitioner for the offence under Section 228 of IPC in violation of article 21 of the Indian Constitution. With the above grounds, he prays for allowing the revision petition by setting aside the impugned order passed by the Trial Court.

The learned Additional SPP appearing for the respondent-State submits the petitioner who had gone to the Court below to give evidence as C.W. 13 by consuming alcohol had misbehaved with the Public Prosecutor and the Police and caused interruption to the judicial proceedings which was witnessed by the Public Prosecutor, advocates and police who were present in the Court hall. The conduct of the petitioner in the open Court was highly condemnable. Therefore, the Sessions Court was justified in holding that the ingredients of Section 228 of IPC are proved and attracted and sentencing the petitioner to undergo imprisonment for a period of three months. Hence, the impugned order does not call for interference of this Court. With this, he prays for dismissal of the petition.

That after hearing the learned counsel for the parties and after perusing the impugned order passed by the Court below, the point that arises for consideration is;

"Whether the Court below was justified in sentencing the petitioner to undergo imprisonment for a period of three months?"

The impugned order dated 15.10.2014 reads as follows;

"C.W. 13 Kishor son of Baburao is present before the Court as he has been taken by the police. Virtually, the evidence of C.W. 13 Kishor son of Baburao is on 16/10/2014.

C.W. 13 Kishor son of Baburao entered witness box. In the witness box, C.W. 13 had misbehaved with Public Prosecutor and with police. The Public Prosecutor and police stated the C.W. 13 Kishor son of Baburao had consumed alcohol and he intoxicated position. C.W. 13 Kishor son of Baburao shouted in the Court hall and caused breach of dignity and decorum of the Court. Hence, C.W. 13 intentionally insulted and caused interruption to the judicial proceeding in this case. Therefore, ingredients of section 228 of IPC are proved and attracted. Therefore, C.W. 13 Kishor son of Baburao had committed offence under section 228 of IPC. The behavior and conduct of the C.W. 13 Kishor son of Baburao is witnessed by the Public Prosecutor, advocates and police who are present in the Court hall. Consuming the alcohol and coming to the Court to give evidence is nothing but lowering the decorum and dignity of the Court and also the Court witnessed the C.W. 13 Kishor son of Baburao has misbehaved in the Open Court. Therefore, I pass the following;

ORDER

The C.W. 13 Kishor son of Baburao age: 40 years, Occu: driver, R/o Chandeshwar tq. Aurad, dist. Bidar, is sentenced for a period of 3 months and C.W. 13 Kishor son of Baburao is committed to District Prison for serving sentence for a period of 3 months. The District Prison authorities are directed to house C.W. 13 Kishor son of Baburao in the Prison for a period of 3 months. The PSI, Market Police Station is directed to commit the C.W. 13 to the District Prison, Bidar, and report to the Court. Release C.W. 13 after completion of 3 months period of prison."

When an incident as referred in the impugned order takes place in the view or presence of any Civil, Criminal or Revenue Court, if the said Court is of the opinion that it is a case for imposing fine not exceeding Two Hundred rupees, in such case, it has to follow the procedure as contemplated under Section 345 of Cr.P.C., which reads as under;

Sec. 345. Procedure in certain cases of contempt. (1) When any such offence as is described in Section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code (45) of 1860) 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 may, at any time before the rising of the Court on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, sentence the offender to fine not exceeding two hundred rupees, and, in default of payment of fine, to simple imprisonment for a term which may extended to one month, unless such fine be sooner paid.

(2) In every such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender as well as the finding and sentence.

(3) If the offence is under section 228 of the Indian Penal Code (45 of 1860), the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult."

If the Court is of the opinion that case should not be dealt with under Section 345 of Cr.P.C., then it has to follow the procedure prescribed under Section 346 of Cr.P.C. which reads as under;

"Section 346. Procedure where Court considers that case should not be dealt with under section 345.- (1) If the Court in any case considers that a person accused of any of the offences referred to in section 345 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other reason of opinion that the case should not be disposed of under section 345, such Court, after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of such person before such Magistrate, or if sufficient security is not given shall forward such person in custody to such Magistrate.

(2) The Magistrate to whom any case is forwarded under this section shall proceed to deal with, as far as may be, as if it were instituted on a police report."

In the instant case, the Court below has passed an order sentencing the petitioner to undergo imprisonment for three months holding that the offence committed by the petitioner was witnessed by the Public Prosecutor, Police and the Advocates who were present in the Court at that time and the act of the petitioner attracts the ingredients of Section 228 of IPC.

As already stated, if the Court below was of the opinion that it is a case for imposing fine of not less than two hundred rupees, in such case, it should have followed the procedure prescribed under Section 345 of Cr.P.C. That means, it should have caused the petitioner/offender to be detained in custody and should have taken cognizance of the offence at any time before rising of the Court on the same day and after giving the offender/petitioner a reasonable opportunity of showing cause why he should not be punished i.e., under Section 345 of Cr.P.C. sentence him to fine not exceeding Rs. 200/- (Rupees Two Hundred only). The nature of the order indicates that the Court below had come to an opinion that petitioner should be imprisoned otherwise than imposing fine of Rs. 200/-, then it should have followed the procedure prescribed under Section 346 of Cr.P.C. That means, it should have recorded the facts constituting the offence and the statement of the accused i.e., the petitioner as provided under Section 345 of Cr.P.C. and thereafter, it should have forwarded the case to a Magistrate having jurisdiction to try the same and it should have asked him to furnish security to ensure his appearance before such Magistrate and if sufficient security is not given then should have forwarded such person in custody to such Magistrate. Thereafter, the jurisdictional Magistrate to whom the case is forwarded under sub-section (1) of Section 346 of Cr.P.C. shall proceed to deal with, as far as may be, as if it were instituted on a police report.

Whereas, the Court below neither followed the procedure prescribed under Section 345 nor under Section 346 of Cr.P.C. before passing the impugned order and therefore, impugned order passed by the Court below is in violation of mandatory procedures prescribed in the Code of Criminal Procedure and is liable to be set aside.

Since the petitioner has already undergone imprisonment for more than two months out of three months imposed by the Court below in violation of the mandatory procedures prescribed under Section 345 and 346 of Cr.P.C., no liberty as sought by the learned Addl. SPP is to be granted permitting the Court below to reconsider the matter. Hence, I pass the following;

ORDER

The petition is allowed and the impugned order dated 15.10.2014 passed in Sessions Case No. 41/2013 by the Principal Sessions Judge, Bidar is set aside. The petitioner is ordered to be released forthwith.

Registry of this Court is directed to intimate the Jail authorities of District Jail, Bidar to release the petitioner forthwith if he is not required in any other case.