Shri Heramba Sarma vs Shri Ajoy Sankar Das

S.K. Homchaudhuri, J.—In this petition u/s 482 Code of Criminal Procedure the Petitioner has approached this Court for quashing the proceeding of Case No. CR 655/82 u/s 500 IPC pending in the Court of learned Judicial Magistrate, Tezpur. Both the complainant and the accused Petitioner are members of Tezpur Bar, Allegation in the complaint is that on 6.8.82, in the cross-examination of witnesses in C.R. Case NO. 953/81 in the Court of Addl. Chief Judicial Magistrate, Tezpur, the complainant, the counsel engaged in the said case, having termed a question put in cross - examination by the accused Petitioner the engaged counsel of the opposite party as irrelevant and useless, the accused - Petitioner suddenly become angry and made indecent gesture and dubbed the complainant opposite party ''ignorant", "you do not know anything". Do not teach me boy, I will teach you" etc.

It is alleged in the complaint that these utterances were made by the accused-Petitioner before litigants and public, present in front of the Court room of learned Addl. Chief Judicial Magistrate.

Mr. D.K. Bhattacharjee, the learned Counsel for the Petitioner submits that although it is undesirable however, sometime in the course of conducting cases some advocated lose temper and utter unpalatable words. But such utterance is trivial and too petty to expose an advocate to all the trouble and worry of a criminal trial. Learned counsel submits that the offensive words as alleged in the complaint petition, did not cause any harm nor intended to cause harm but were uttered on the heat of the moment and that too by an aged Advocate of the bar at Anr. advocate namely the complainant who is much younger in age and the offensive words as alleged are governed by exception u/s 95 IPC. As such, the impugned proceeding is tantamount to an abuse of the process of the Court in support of the contention learned Counsel has placed reliance on the decisions in the following cases:

(1) In AIR 1929 234 (Lahore)

(2) Philip Rangel Vs. Emperor,

(3) (sic) Jash v. Sibka Hazra (AIR 1954 Cal 289)

(4) Veeda Menezes Vs. Yusuf Khan and Another,

In the case of Jasraj Jagga Supra, the complainant having suggested to search for his missing book in the bundle of books of accused, the accused, a pleader in reply stated that he was not in the habit of stealing books like the complainant. In a case u/s 500 IPC against that utterance, the High Court at Lahore held that the matter was too petty to base complaint u/s 500 IPC and the utterance was covered by the exception u/s 95 IPC.

In the case of Phillip Rangel Supra in a meeting of Board of Directors of Limited Company consisting of 40 members, the accused uttered at Ors. � "You damn bloddy, bastard and cads", the High Court of Bombay held that, utterance did not amount to insult even though there was technical offence u/s 504 IPC in view of the triviality, the utterance was covered by the Section 95 IPC.

In the case of Sadananda Jash Supra, the accused said to the complainant that "you are telling (sic)", In the said case, it was held by the High Court, (Calcutta) that inter course in civilized society would come to an and, if for certain words uttered, a person found himself exposed to all the trouble and worry of a Criminal trial. The acquittal of the accused Petitioner in a complaint u/s 506 IPC, for the words "you are telling lie", was held to be fully justified as the utterance was covered by Section 95 IPC.

In the case of Ved Meneres Supra, the Hon''ble Supreme Court amongst Ors. held that the provisions of Section 95 IPC apply even to some cases of physical injury and the provision of Section 95 IPC covered cases of deliberate as well as accidental injury.

Mr. J.M. Choudhury, the learned Counsel for the complainant/opp. party submits that the offensive words as stated in the complaint is not covered by provision of Section 95 IPC in as much as these utterances were made by the accused Petitioner before litigants and other public which damaged his reputation and profession of the complainant.

I have considered the submissions made on behalf of the Petitioner as well as on behalf of the opp. party and I have perused the complaint petition filed by the complainant in the court of the Magistrate. I find much force in the submission made on behalf of the Petitioner. An advocate on his legs in a court, to place the case of his client or defend his client, may become charged for the cause of his client which may result in losing temper and in utterance of harsh or unpalatable words towards Anr. fellow advocate engaged in opposite camp. Such unfortunate utterances or abuse cannot normally cause damage to the the reputation as well as professional prospect of an advocate against whom such abusive words are hurled. Even if, in extreme case, It causes come damage to the provisional prospect, appropriate remedy is the suit for damages not initiation of criminal proceedings.

Provisions of Section 95 IPC is based in the principles of "deminimis non (sic)". Section 95 IPC is inserted to prevent prosecution of trivial nature. Whether offensive words or act is negligible or trivial depends on the relation of the parties, their position and the circumstances they are placed at the material time. In the instant case, both the complainant and the accused-Petitioner are advocates and the alleged offensive words were uttered by the Petitioner when both the Petitioner and the complainant were on their legs in a Criminal proceeding before a court and the Petitioner apparently lost his temper while defending his client, although same was not desirable or expected from a learned member of the bar.

Taking into consideration the aforesaid facts and circumstances of the case, I hold that the alleged offensive utterances are trivial in nature and are covered by provision of Section 95 IPC.

That being so, the impugned proceeding of C.R. Case No. 655/82 pending in the Court of learned Judicial Magistrate, Tezpur against the Petitioner is tantamount to abuse of the process of the court and therefore the impugned proceeding of C.R. Case No. 655/82 pending in the Court of Judicial Magistrate, Tezpur is hereby quashed.