1. Heard learned counsel for the petitioner and the learned AGA and perused the record.
2. This is a writ petition under Article 226 of the Constitution of India for quashing the order dated 15.07.2010 passed by the learned Additional Sessions Judge, Court No. 2, Aligarh in Criminal Revision No. 222 of 2009 (Shankar Swaroop v State of U.P.) as well as the order dated 13.05.2009 passed learned Judge, Small Causes Court, Aligarh in Criminal Misc. Case No. 9 of 2005 (State v Shankar Swaroop).
3. It appears that in Original Suit No. 595 of 1992 pending in the court of the Judge, Small Causes Court, Aligarh the then Presiding Officer Mr. Sushil Kumar was involved in discharging judicial functions on 28.10.2003. The petitioner told the said Presiding Officer that "Aap dictator hain tatha sach aur jhooth ka kaala parda daalne waale judge hain. Isliye mai jireh nahi karunga". The Presiding Officer considered the statement as derogatory and contemptuous, therefore, he held that the offence under section 228 IPC was committed within the view of the court and accordingly served a show cause notice to the revisionist under section 345 of the Code of Criminal Procedure (in short "the Code") against which the revisionist furnished his reply. The Presiding Officer found that the revisionist admitted his guilt but did not tender any pardon. The learned Presiding Officer further found that the offence was serious in nature, therefore, the punishment provided in section 345 of the Code was not adequate, thus he decided to refer the matter to the learned Chief Judicial Magistrate, Aligarh under section 346 of the Code vide his order dated 13.05.2009. The petitioner filed Criminal Revision No. 222 of 2009 (Shankar Swaroop v State of U.P.) in the court of the Sessions Judge, Aligarh which was dismissed by the learned Additional Sessions Judge, Court No. 2, Aligarh vide the order dated 15.07.2010.
4. The learned counsel for the revisionist submitted that the matter was not so serious as is referred to the learned Chief Judicial Magistrate under section 346 of the Code for the sentence of imprisonment. The Judge, Small Causes Court should have himself dealt with the matter under section 345 of the Code.
5. In order to adjudicate upon the controversy involved in this case, it seems to be just and expedient to look into the provisions of sections 345 and 346 of the Code, which reads as follows:
"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 extend 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.
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 for as may be, as if it were instituted on a police report."
6. When any offence as is described under sections 175, 178, 179, 180 or 228 IPC is committed in the view or presence of any civil, criminal or revenue court, the court concerned has power to cause the offender to be detained in custody and has also power to take cognizance of the offence at any time on the same day before rising of the court. The court concerned has also power to punish the person who has committed any of the aforesaid offences after providing him a reasonable opportunity of showing cause why he should not be punished under section 345 of the Code. Therefore, the opportunity of showing cause to the person who has committed any of the offences described in section 345 of the Code is necessary before imposing any punishment on him under section 345 of the Code but the sentence to be passed in such matter shall be of fine only which shall not exceed in any case Rs. two hundred. In default of payment of fine only simple imprisonment can be inflicted which may extend to one month only unless the fine is sooner paid. The Code further requires the court, under section 345 of the Code, to record the facts constituting the offence with the statement, if any, made by the offender as well as its finding and sentence. In regard to the offence under section 228 IPC, the record of the court concerned shall also show the nature and stage of the proceeding in which the interruption or insult was made and its nature. Under section 346 of the Code, the court has power to refer the matter to the Magistrate having jurisdiction to try the case instead of deciding the matter under section 345 of the Code, but that power has to be exercised only when the court considers that the person accused of any of the offences referred to in section 345 should be imprisoned otherwise than in default of payment of fine or a fine exceeding Rs. Two hundred should be imposed upon him or the case should not be disposed of under section 345 of the Code. While referring the matter to the Magistrate under section 346 of the Code, the court has to record the facts constituting the offence and the statement of the accused. Therefore, the court, who takes cognizance under section 345 of the Code, has power to refer the matter under section 346 of the Code to the Magistrate having jurisdiction to try the case, on the ground of existence of any of the conditions referred to above. In this view of the matter, the order of the learned Judge, Small Causes Court, Aligarh referring the matter to the Chief Judicial Magistrate, Aligarh under section 346 of the Code is well within the four corners of law. Therefore, it can not be interfered with by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India, specially when the revisional court was also of the same view.
7. In view of the aforesaid, the petition has no merit and is accordingly dismissed.
Order Date :- 20.9.2010 shailesh