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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: REVASHANKAR

DATE OF JUDGMENT: 24/09/1958

BENCH: DAS, S.K. BENCH: DAS, S.K. IMAM, SYED JAFFER KAPUR, J.L.

CITATION:  1959 AIR  102            1959 SCR  Supl. (1)1367  CITATOR INFO :  RF         1971 SC 221  (16)  R          1972 SC 905  (8)  R          1972 SC 989  (9,10)  R          1974 SC 710  (85)

ACT: Contempt  of Court-Ouster of High Court’s  jurisdiction-Test -Contempt  of  Courts Act, 1952 (XXXII Of  1952),  s.  3(2)- Indian Penal Code, 1860 (XLV of 1860), S. 228.

HEADNOTE: The  respondent, who had filed a complaint in respect of  an alleged offence under s. 500 of the Indian Penal Code in the Court of the Additional District Magistrate of Indore,  made a  number  of  aspersions  against  the  Magistrate  in   an application I74 1368 made to him under s. 528 of the Code of Criminal  Procedure, two  of which were of a serious character.  It  was  alleged that the Magistrate was a party to a conspiracy with certain others the object of which was two implicate the complainant in a false case of theft and that a lawyer appearing for the accused  persons,  to  whom the  Magistrate  was  favourably inclined, had declared that he had paid a sum of Rs. 500  to the Magistrate.  Those allegations were later on repeated in an  affidavit.   The Magistrate reported the matter  to  the Registrar of the High Court for necessary action.  The  High Court called upon the respondent to show cause why he should not  be proceeded against in contempt under the Contempt  of Courts  Act,  1952.  The judges of the  Division  Bench  who heard the matter, without going into the merits of the case, held  that, Prima facie, the offence was one of  intentional insult   under  s.  228  of  the  lndian  Penal  Code   and, consequently, the jurisdiction of the High Court was  ousted under s. 3(2) Of the Contempt of Courts Act, 1952. Held, that the High Court had taken an erroneous view of the matter and its order must be set aside. The  mere existence of an element of insult in  the  alleged act  of contempt was not conclusive as to the  applicability of

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S.  228  Of  the  Indian  Penal  Code  so  as  to  oust  the jurisdiction of the High Court under s. 3(2) of the Contempt of Courts Act. While Judges and Courts are not beyond criticism, and  there are  well-recognised limits to such criticism, and  contempt proceedings  are  not meant to shield judges  from  personal insults,  there  can be no question  that  where  defamatory aspersions  are  cast  upon the  character  and  ability  of individual  judges  or  of  Courts  in  general,  which   in substance scandalise the Court itself and have the effect of undermining  the  confidence of the public in  it  and  thus hinder  due administration of justice, the contempt is of  a kind which exceeds the limits of s. 228 of the Indian  Penal Code. The  true test, therefore, is: is the act complained  of  an offence under s. 228 of the Indian Penal Code, or  something more  than that ? If it is something more, the  jurisdiction of  the High Court is not ousted by S. 3(2) Of the  Contempt of Courts Act. So judged, there could be no doubt that the aspersions  cast in  the  present  case amounted to  scandalising  the  court itself,  and  were no mere personal insults,  and  the  High Court had jurisdiction to take cognizance of the same. Bathina  Ramkrishna Reddy v. The State of Madras, [1952]  S. C.  R. 425 and Brahma Prakash Shayma v. The State  of  Uttar Pradesh, [1953] S.C.R. 1169, relied on. Ambard  v. Attorney-Geneyal for Trinidad and Tobago,  [1936] A.C. 322, referred to. 1369 The  question whether an insult offered to a public  servant is  intentional so as to attract S. 228 of the Indian  Penal Code has to be decided on the facts of each particular  case and  it is neither necessary nor advisable to Jay  down  any hard and fast  rule. Narotam  Das v. Emperor, A.I.R. 1943 All. 97, Queen  Empress v.  Abdullah  Khan, (1898) A.W.N. I45 and Emperor  v.  Murli Dhar, (1916) I.L.R. 38 All. 284, considered.

JUDGMENT: CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal No. 103 of 1956. H.   J.  Umrigar and R. H. Dhebar, for the  appellant.   The sole  question arising for determination is whether  on  the facts  and  circumstances  of the case the  High  Court  was correct in holding that the act of the respondent complained of  constituted an offence under s. 228 of the Indian  Penal Code, and the jurisdiction of the High Court was, therefore, ousted by reason of the provision of s. 3(2) of the Contempt of  Courts  Act,  1952.  The High Court in  coming  to  this conclusion  appears to have relied on two decisions  of  the Supreme  Court--[1952]  S.C.R. 425 and [1953]  S.C.R.  1169. The  facts  in  the  two  Supreme  Court  cases  were  quite different and they do not, in any way justify the view taken by  the  High  Court.  It will be  my  submission  that  the allegations  made in the so-called transfer  application  as also  the affidavit are of such a serious nature  that  they are not a mere personal insult to the Magistrate, but go far beyond;  they  scandalise the Court in such a manner  as  to create distrust in the minds of the public, and pollute  the stream of justice, and in such cases the jurisdiction of the High Court is not ousted (Reads out portions of the transfer application  and the affidavit in support).  From a  perusal of  the extracts which have been read, it will be seen  that

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the  aspersions  made against the Magistrate are of  a  very serious  nature alleging criminal conspiracy, and also  that he had taken a bribe of Rs. 500 from the opposite side. So far as the offence under s. 228 of the Indian Penal  Code is  concerned, the first essential ingredient is that  there must be an " intention " to insult.  In the affidavit  filed in the High Court in reply to the 1370 show  cause notice the respondent had stated that there  was no intention to insult or show disrespect to the Magistrate. [Imam J.-I cannot agree with that, the language used in  the application  and affidavit is such that intention to  insult was clearly there.] That may be true, but there are several earlier decisions of the Allahabad High Court which have been referred to in  the case  relied  upon  by the High  Court-Narotam  Das  v.  The Emperor, A.I.R 1943 All. 97, wherein it was held that  where scandalous  allegations  were  incorporated  in  a  transfer application,  there  was  not necessarily  an  intention  to insult, as the primary object was to seek a transfer and not to insult the Court. So  far  as  the decisions are concerned,  they  support  my contention that when scandalous allegations are made against a  Magistrate  in  a transfer  application  they  would  not necessarily constitute an offence under s. 228 of the Indian Penal  Code  and could be punished by the  High  Court.   In I.L.R.  1941  Nagpur 304, the Judge, who was seized  of  the case, made a complaint to the High Court about a letter sent to him by one of the parties, and it was there held that the sender of the letter could be punished for Contempt of Court by  the High Court.  It is true that there is no  discussion about. 228 of the Indian Penal Code but in the course of the judgment  the  case of Emperor v. Jagnath  Prasad  Swadhiry, I.L.R. 1938 All. 548, was mentioned.  In the Allahabad  case a  person during the pendency of a suit sent  communications by post to the Judge containing scandalous allegations.   It appears  that it was urged that s. 228 of the  Indian  Penal Code  would bar the jurisdiction of the High Court under  s. 3(2)  of  the  Contempt  of  Courts  Act,  1926,  but   this contention  was repelled and the High Court stated that  its jurisdiction to punish for contempt was not ousted. [Reference was also made to I.L.R. 12 Patna I and I.L.R.  12 Patna 172]. I submit that where the allegations made go beyond 1371 mere   personal   insult  and  tend  to  bring   the   whole administration  of justice, into disrepute, then the  juris- diction of the High Court would not be ousted by s. 3(2)  of the  Act.   In a case where there is only an insult  to  the Judge by using vulgar abuse such as " rogue or rascal "  and this abuse was made " ex facie curiae ", then it may be said that  the  jurisdiction of the High Court is ousted  as  the offence  falls  within the purview of s. 228 of  the  Indian Penal Code. [Das J.-Also if the abuse relates to the private life of the Judge,  such  as, calling him a drunkard  or  imputing  some immorality to him, unconnected with his judicial duties.] I agree.  In the instant case the Magistrate must have  been fully conscious of the powers possessed by him under s.  228 of the Indian Penal Code as also the relevant provisions  in the  Criminal Procedure Code which permit him to punish  for Contempt of Court, yet he presumably must have felt that the aspersions  made  in the present case were so  grave  as  to transcend mere personal insult and as such it was a fit case to  be  referred  to the High  Court  for  taking  necessary

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action.  In conclusion, it is submitted that the view  taken by  the  High  Court  is much  too  narrow.  and  cannot  be supported either in principle or by the, authorities cited. J.   B.  Dadachanji  and S. N. Andley, for  the  respondent. The  view  taken  by the High Court is  correct  and  is  in accordance  with the judgments of the Supreme Court  in  the cases reported in [1952] S.C.R. and [1953] S.C.R. If the act complained of intentionally offers a personal insult to  the Magistrate   concerned,  it  may  tend  to   undermine   the administration of justice thereby, but it will  nevertheless amount  to an offence under s. 228 of the Indian Penal  Code and  as  such  the jurisdiction of the High  Court  will  be ousted  by  s. 3(2) of the Act.  It is unsound to  say  that there  are  two kinds of contempt, and the  lesser  kind  of contempt will come under s. 228 of the Indian Penal Code and the  grosser kind will not come under s. 228 ; every  insult to a Court, whatever its nature, is contempt and  punishable under s. 228 of the Indian Penal Code. 1372 [Kapur J.-Every insult to a Judge will not necessarily be  a contempt.   A libel attacking the integrity of a  Judge  may not, in the circumstances of a particular case, amount to  a contempt at all, although it may be the subject matter of  a libel proceeding.] [Das  J.-It  appears that there is a further  difficulty  in your way, that is, whether the Magistrate was sitting in any stage of a judicial proceeding when the application and  the affidavit  were  filed;  if  he was not,  then  one  of  the essential ingredients of s. 228 of the Indian Penal Code was not satisfied.] The  High Court has assumed that the Magistrate was  sitting as  a Court at that time and this was also borne out by  the facts  stated  in the petition for special leave  to  appeal filed   by  the  appellant  wherein  it  is  stated  "   the application having been presented during the sitting of  the Court  was  clearly calculated to lower the dignity  of  the Court in the public mind ". Section  480 of the Code of Criminal Procedure  specifically mentions s. 228 of the Indian Penal Code and treats it as  a form  of  contempt,  therefore, it will  be  an  offence  of contempt punishable under the Indian Penal Code and as  such the jurisdiction of the High Court would be ousted under  s. 3(2) of the Act. I  submit  that  the view taken by the  High  Court  is  the correct  view and is supported by the two decisions  of  the Supreme Court as also the judgment of the Bombay High  Court in (1922) I.L.R. 46 Bom. 973. Umrigar  in reply.  During the course of discussion,  doubts have  arisen whether there was any intention to  insult,  or whether  what was said was an insult, or whether the  insult was  offered in any stage of a judicial proceeding.  If  any one  of these three essentials is lacking, then,  obviously, there  is no offence under s. 228 of the Indian Penal  Code. Where there is so much doubt as to whether an offence  under s.  228 of the Indian Penal Code has been committed or  not, and  there  is no doubt that " prima facie " a  Contempt  of Court  apart  from  the  provisions  of  s.  228  has   been committed,  it is wrong to say that the jurisdiction of  the High Court is ousted. 1373 I  submit  that  the case relied upon  by  the  High  Court, Narotam  Das  v. Emperor, A. 1. R. 1943 All.  97,  correctly lays  down the law so far as the question of intention "  is concerned. 1958.   September  24.   The  Judgment  of  the  Court   was

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delivered by S.   K. DAS, J.-This is an appeal by special leave from  the judgment  and  order of the then Madhya Bharat  High  Court, dated   February   9,  1955,   in   Criminal   Miscellaneous Application no. 2 of 1954.  Originally, the appeal was filed on behalf of the State of Madhya Bharat, now substituted  by the State of Madhya Pradesh.  The appeal raises an important question with regard to the interpretation of s. 3(2) of the Contempt  of Courts Act, 1952 (XXXII of  1952),  hereinafter referred to as the Act, which repealed the earlier  Contempt of  Courts  Act,  1926 (XII of 1926),  as  also  the  Indore Contempt  of  Courts Act (V of 1930) which  was  earlier  in force in the State of Madhya Bharat. The  facts  so far as they are relevant to this  appeal  are these.   One  Ganga Ram, stated to be the  landlord  of  the respondent   Revashankar,  instituted  a  suit,  which   was numbered as 1383 of 1952 in the court of the Additional City Civil  Judge,  Indore,  for ejectment and  arrears  of  rent against Revashankar.  It was stated that the suit was  filed in the name of Ganga Ram and his wife Chandra Mukhi Bai.  It was  further alleged that one Mr. Uma Shankar Chaturvedi,  a lawyer acting on behalf of Ganga Ram, advised the latter  to sign  the name of his wife Chandra Mukhi Bai though  Chandra Mukhi   Bai  herself  did  not  sign  the  plaint   or   the vakalatnama.   In  this  suit Chandra  Mukhi  Bai  filed  an application  for  permission to prosecute  her  husband  for forgery.   Another  application was filed by  certain  other persons said to be other tenants of Ganga Ram in which  some allegations  were  made against Revashankar.   On  June  29, 1953, Revashankar filed a complaint against five persons for an  alleged offence under s. 500, Indian Penal  Code.   This complaint was verified on July 13, 1953, and was  registered as Criminal Case no. 637 of 1953 in the court of one 1374 Mr.  N. K. Acharya, Additional District Magistrate,  Indore. In  that  case one Mr. Kulkarni appeared on  behalf  of  the complainant  Revashankar.  The accused persons  appeared  on August 8, 1953, through Messrs.  Mohan Singh and Uma Shankar Chaturvedi.   An  objection  was raised  on  behalf  of  the accused  persons  to the appearance of Mr. Kulkarni  as  the latter’s  name appeared in the list of witnesses.  This  was followed by a spate of applications and counter applications and  on  October 12, 1953, the learned  Additional  District Magistrate passed an order to the effect that the copies  of the applications as well as of the affidavits filed by  both parties  should be sent to the District Judge for  necessary action  against  the lawyers concerned.  In  the-meantime  a criminal  case was started against Revashankar in the  court of  the  Additional City Magistrate, Circle No.  2,  for  an alleged  offence under s. 497, Indian Penal Code.  The  case was  started on the complaint of Ganga Ram.  That  case  was numbered as 644 of 1953.  We then come to the crucial  date, namely,  December 17, 1953.  On that date Revashankar  filed an  application  in  the court of  the  Additional  District Magistrate  who  was in seizin of Criminal Case no.  637  of 1953.   The  application purported to be one under  s.  528, Code of Criminal Procedure.  This application contained some serious  aspersions  against  the  Magistrate,  Mr.  N.   K. Acharya.   The  aspersions were summarised  by  the  learned Judges   of  the  High  Court  under  the   following   four categories.   The  first aspersion was that from  the  order dated  October 12, 1953 it appeared that Mr. N.  K.  Acharya wanted  to  favour Mr. Uma Shankar Chaturvedi.   The  second aspersion  was that from certain opinions expressed  by  the Magistrate,  Revashankar asserted that he was sure  that  he

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would   not  get  impartial  and  legal  justice  from   the Magistrate.   The  third  aspersion was of  a  more  serious character  and  it was that the Magistrate had a hand  in  a conspiracy  hatched by Messrs.  Mohan Singh and Uma  Shankar Chaturvedi regarding certain ornaments of Chandra Mukhi  Bai with  the object of involving, Revashankar and  his  brother Sushil  Kumar  in a false case of theft of  ornaments.   The fourth aspersion was that Mr. Uma 1375 Shankar Chaturvedi had declared that he had paid Rs. 500  to the  Magistrate  through Ganga Ram.  These  aspersions  were later  repeated  in an affidavit on December 21,  1953.   On January  11,  1954,  the  learned  Magistrate  reported  the aforesaid  facts to the Registrar of the Madhya Bharat  High Court,  and prayed for necessary action against  Revashankar for  contempt  of  court.  On this  report  the  High  Court directed  the issue of notice to Revashankar to  show  cause why  action  should  not  be taken  against  him  under  the Contempt  of  Courts Act, 1952  and  Criminal  Miscellaneous Application  no. 2 of 1954 was accordingly  started  against Revashankar.   On March 3, 1954, Revashankar  showed  cause. The case was then heard by a Division Bench consisting of V. R.  Newaskar and S. M. Samvatsar, JJ. and by an order  dated February 9, 1955, the learned Judges held that by reason  of the provisions in s. 3(2) of the Act the jurisdiction of the High  Court  was ousted inasmuch as the  act  complained  of constituted  an  offence under s. 228 of  the  Indian  Penal Code.  The question for consideration in the present  appeal is if the aforesaid view of the High Court is correct. Mr.  H.  J.  Umrigar,  who has appeared  on  behalf  of  the appellant,  has very strongly submitted before us  that  the High  Court  has  erred  in holding  that  the  act  of  the respondent  complained  of constituted an offence  under  s. 228,  Indian  Penal Code, and the jurisdiction of  the  High Court was, therefore, ousted by reason of the provisions  in s. 3(2) of the Act.  It is necessary to read first s.  :3(2) of  the  Act.   We may state  here  that  the  corresponding section  in the earlier Contempt of Courts Act, 1926 was  s. 2(3)  and in the judgment under consideration there is  some confusion  as  to  the correct number  of  the  sub-section. Section 3(2) of the Act is in these terms :- " No High Court shall take cognizance of a contempt  alleged to have been committed in respect of a Court subordinate  to it  where such contempt is an offence punishable  under  the Indian Penal Code (Act XLV of 1860)." 175 1376 The  sub-section  was considered in two  decisions  of  this Court, Bathina Ramakrishna Reddy v. The State of Madras  (1) and Brahma Prakash Sharma v. The State of Uttar Pradesh (2). In  the earlier case of Ramakrishna Reddy (1) the  appellant was  the  publisher and managing editor of a  Telugu  Weekly known  as  " Praja Rajyam ". In an issue of the  said  paper dated February 10, 1949, an article appeared which contained defamatory  statements about the stationary  sub-Magistrate, Kovvur,   and  the  point  for  consideration  was  if   the jurisdiction of the High Court to take cognisance of such  a case  was  expressly  barred under s. 2(3)  of  the  earlier Contempt  of  Courts Act, when the allegations made  in  the article  in  question constituted an offence under  s.  499, Indian Penal Code.  On behalf of the appellant it was argued that what the subsection meant was that if the act by  which the  party  was alleged to have committed contempt  of  a  s subordinate  court  constituted offence of  any  description whatsoever punishable under the Indian Penal Code, the  High

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Court  was  precluded from taking cognizance  of  it.   This argument was repelled and this Court said (at page 429):- " In our opinion, the sub-section referred to above excludes the jurisdiction of High Court only in cases where the  acts alleged  to constitute contempt of a subordinate  court  are punishable  as  contempt under specific  provisions  of  the Indian Penal Code but not where these acts merely amount  to offences of other description for which punishment has  been provided for in the Indian Penal Code.  This would be  clear from the language of the sub-section which uses the words  " where such contempt is an offence " and does not say " where the act alleged to constitute such contempt is an offence ". On an examination of the decisions of several High Courts in India it was laid down that the High Court had the right  to protect  subordinate courts against contempt but subject  to this restriction, that cases of contempt which have  already been  provided  for in the Indian Penal Code should  not  be taken cognizance of (1) [1952] S.C.R. 425. (2) [1953] S.C.R. 1169. 1377 by  the High Court.  This, it was stated, was the  principle underlying  s.  2(3) of the Contempt of  Courts  Act,  1926. This  Court  then  observed that it  was  not  necessary  to determine exhaustively what were the cases of contempt which had  been already provided for in the Indian Penal Code;  it was pointed out, however, that some light was thrown on  the matter  by the provision of s. 480 of the Code  of  Criminal Procedure  which  empowers any civil,  criminal  or  revenue court  to punish summarily a person who is found  guilty  of committing  any offence under ss. 175, 178, 179, 180  or  s. 228 of the Indian Penal Code in the view or presence of  the court.   The  later decision of Brahma  Prakash  Sharma  (1) explained   the   true  object  of   contempt   proceedings. Mukherjea  J. who delivered the judgment of the  Court  said (at page 1 176) : " It would be only repeating what has been said so often  by various  Judges that the object of contempt  proceedings  is not   to  afford  protection  to  Judges   personally   from imputations to which they may be exposed as individuals;  it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of  any party,  the authority of the court is lowered and the  sense of  confidence  which people have in the  administration  of justice by it is weakened ". It was also pointed out that there were innumerable ways  by which  attempts could be made to hinder or obstruct the  due administration  of  justice in courts and one type  of  such interference was found in cases where there was an act which amounted  to  "  scandalising  the  court  itself  ":   this scandalising  might manifest itself in various ways  but  in substance it was an attack on individual Judges or the court as  a whole with or without reference to  particular  cases, causing  unwarranted  and  defamatory  aspersions  upon  the character  and  ability  of the  Judges.   Such  conduct  is punished as contempt for the reason that it tends to  create distrust  in the popular mind and impair the  confidence  of the  people in the courts which are of prime  importance  to the  litigants  in  the  protection  of  their  rights   and liberties. (1)  [1953] S.C.R. 1169. 1378 Bearing the aforesaid principles in mind, let us now examine the case under consideration.  The High Court expressed  the view  that  the act of the respondent complained  of  merely

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amounted  to  an offence under s. 228,  Indian  Penal  Code. Nevaskar J. said: "  It  appears  to me that the application,  though  it  was stated  to be an application for transfer, was  intended  to offend and insult the Magistrate.  A man’s intention can  be judged by the nature of the act he commits.  The application directly and in face attributes partiality and corruption to the Magistrate.  It was not an application made bona fide to a  court having jurisdiction to transfer the case from  that Court to some other Court.  It was an application thrown  in the face of the Magistrate himself.  The action is no better than telling the Magistrate in face that he was partial  and corrupt.   The allegations in the application no  doubt  are insulting to the Magistrate and he felt them to be so and at the  time  the application was submitted on  17th  December, 1953,  when he was sitting as a Court and dealing  with  the case of the opponent." "  Thus,  since I hold that the opponent intended  to  offer insult  to the Magistrate concerned there is no  doubt  that the act would fall within the purview of section 228, Indian Penal  Code,  and this Court will be precluded  from  taking action  for the contempt committed before the Court  of  the Magistrate  by  reason of section 2(3) of  the  Contempt  of Courts Act ". The other learned Judge also expressed the same view in  the following words: "  The subordinate Courts can sufficiently  vindicate  their dignity  by  proceeding  against  the  offenders  under  the provisions  of criminal law in such cases.  Legislature  has deemed it proper to exclude such cases from the jurisdiction of  the  High Court under section 2(3) of  the  Contempt  of Courts Act.  This, however, does not mean that High  Court’s jurisdiction  is  excluded  even  in  cases  where  the  act complained  of, which is alleged to constitute contempt,  is otherwise an offence under the Indian Penal Code." "The question to be considered in this case is 1379 whether  the  act complained of is  punishable  as  contempt under any one of the specific provisions of the Indian Penal Code.  In other words whether it falls under any one of  the sections  175,  178,  179, 180 or 228 of  the  Indian  Penal Code." " If the act complained of constitutes an offence under  any of  these sections, it can be dealt with by the  subordinate Court  itself  under section 480 of the  Criminal  Procedure Code  and  the  High  Court  will  have  no  power  to  take cognizance of it under the Contempt of Courts Act." We are of the opinion that the learned Judges were wrong  in their  view that prima facie the act complained of  amounted to an offence under s. 228, Indian Penal Code, and no  more. We are advisedly saying prima facie, because the High  Court did not go into the merits and we have no desire to make any final pronouncement at this stage on the merits of the case. Section 228, Indian Penal Code, is in these terms: "  Whoever  intentionally offers any insult, or  causes  any interruption  to  any  public  servant,  while  such  public servant  is sitting in any stage of a  judicial  proceeding, shall be punished with simple imprisonment for a term  which may  extend to six months, or with fine which may extend  to one thousand rupees, or with both." The essential ingredients of the offence are (1)  intention, (2)  insult or interruption to a public servant and (3)  the public  servant insulted or interrupted must be  sitting  in any  stage  of a judicial proceeding.  In the  present  case there is an initial difficulty which has been pointed out to

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us.   The respondent was sought to be proceeded  against  by reason  of the aspersions he made in the  application  dated December  17,  1953, and the affidavit  dated  December  21, 1953.   It is not very clear from the record if the  learned Magistrate was sitting in any stage of a judicial proceeding when the application and the affidavit were filed.  The High Court  no  doubt says that the Magistrate was sitting  as  a court  at  the  time;  but there  is  no  reference  to  the particular work, judicial or otherwise, which the 1380 Magistrate  was doing at the time.  The practice as  to  the filing  of applications and affidavits varies from court  to court  and  in some courts applications and  affidavits  are filed  within  stated hours before the reader or  the  bench clerk;  they are so filed even when the Judge or  Magistrate is  in  chamber  or  preoccupied  with  some  administrative duties.  So far as the present case is concerned, it is  not at  all  clear, from the record as placed before us,  as  to what was the judicial work which the learned Magistrate  was doing when the application and affidavit were filed.  If  he was  not doing any judicial work at the relevant time,  then the  third  essential  ingredient mentioned  above  was  not fulfilled  and the act complained of would not amount to  an offence under s. 228, Indian Penal Code. We are not, however, basing our decision on the mere absence of  materials  to  show what particular  judicial  work  the learned  Magistrate  was doing when the  -application  dated December  17,  1953, and the affidavit  dated  December  21, 1953,  were  filed.  If that were the  only  infirmity,  the proper order would be to ask for a finding on the  question. Our decision is based on a more fundamental ground.  Learned counsel  for the parties have taken us through the  applica- tion  dated  December  17, 1953,  and  the  affidavit  dated December 21, 1953.  The aspersions made therein prima  facie showed  that they were much more than a mere insult  to  the learned  Magistrate ; in effect, they scandalised the  Court in such a way as to create distrust in the popular mind  and impair  the  confidence  of people in Courts.   Two  of  the aspersions  made, taken at their face value, were  (1)  that the  learned  Magistrate  had  joined  in  a  conspiracy  to implicate  the respondent in a false case of theft.  In  the affidavit it was stated that the learned Magistrate had sent for  the  respondent and his brother and had asked  them  to make  a  false report to the police that  the  ornaments  of Chandra  Mukhi Bai had been stolen.  The learned  Magistrate characterised  the aspersion as totally false and said  that he  neither knew the respondent nor his brother and  had  no acquaintance  with  them.  Another aspersion  was  that  the Magistrate had taken a bribe 1381 of  Rs.  500.  This aspersion was also stoutly  denied.   We must make it clear here that at this stage we are expressing no opinion on merits, nor on the correctness or otherwise of the  aspersions  made.  All that we are saying is  that  the aspersions  taken  at their face value amounted to  what  is called scandalising the court itself, manifesting itself  in such  an  attack  on  the Magistrate  as  tended  to  create distrust  in the popular mind and impair the  confidence  of the  people in the courts.  We are aware that confidence  in courts  cannot be created by stifling criticism,  but  there are  criticisms and criticisms.  " The path of criticism  ", said  Lord Atkin in Ambard v. Attorney-General for  Trinidad and  Tobago  (1),  " is a public way:  The  wrongheaded  are permitted  to  err  therein: provided that  members  of  the public  abstain  from  imputing improper  motives  to  those

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taking  part  in  the administration  of  justice,  and  are genuinely exercising a right of criticism, and not acting in malice  or  attempting  to  impair  the  administration   of justice,  they are immune ". If, therefore,  the  respondent had  merely criticised the Magistrate, no notice  need  have been  taken of such criticism as contempt of court  whatever action it might have been open to the Magistrate to take  as an  aggrieved  individual; but if the  respondent  acted  in malice  and  attempted  to  impair  the  administration   of justice, the offence committed would be something more  than an offence under s. 228, Indian Penal Code. Learned  counsel for the respondent has contended before  us that  as  soon as there is an element of insult in  the  act complained  of, s. 228, Indian Penal Code, is attracted  and the jurisdiction of the High Court to take cognizance of the contempt is ousted.  We are unable to accept this contention as correct.  Section 228 deals with an intentional insult to a  public servant in certain circumstances.  The  punishment for the offence is simple imprisonment for a term which  may extend  to six months or with fine which may extend  to  one thousand rupees or with both.  Our attention has been  drawn to the circumstance that under s. 4 of (1)  [1936] A. C.322, 335. 1382 the  Act the sentence for contempt of court is more or  less the  same, namely, simple imprisonment for a term which  may extend  to  six months.  The fine is a little more  and  may extend  to  two  thousand  rupees.  Section  4  of  the  Act contains a proviso that the accused person may be discharged or  the punishment awarded may be remitted on apology  being made to the satisfaction of the court.  We do not,  however, think that a similarity of the sentence in the two  sections referred to above is a real test.  The true test is: is  the act  complained  of an offence under s.  228,  Indian  Penal Code,  or  is it something more than that ? If in  its  true nature  and  effect,  the  act complained  of  is  really  " scandalising the court " rather than a mere insult, then  it is  clear that on the ratio of our decision  in  Ramakrishna Reddy’s  case(1) the jurisdiction of the High Court  is  not ousted by reason of the provision in s. 3(2) of the Act. Mr. Umrigar has urged a further point in this connection and has contended that for an offence under s. 228, Indian Penal Code,  the insult must be an intentional insult.  The  first essential  requirement of the offence, according to him,  is that  the  insult  must be offered  intentionally.   He  has pointed out that the application which the respondent  filed purported  to  be  an application  under  s.  528,  Criminal Procedure  Code, and though it is difficult to see how  that section  applied in the present case, the intention  of  the respondent  was not to insult the Magistrate, but merely  to state the ’Circumstances in which the respondent was praying for  a  transfer of the case.  Mr. Umrigar has  pointed  out that  in  the reply which the repondent gave to  the  notice issued from the High Court, he said that he had no intention to insult or show disrespect to the learned Magistrate.  Mr. Umrigar  has further submitted that the decision in  Narotam Das v. Emperor (2) (on which the learned Judges of the  High Court  relied) where in somewhat similiar  circumstances  it was  held that s. 228, Indian Penal Code, applied, does  not correctly lay down the law.  In that case Yorke J.  observed that it would be a matter for (1) [1952] S.C.R. 425. (2) A.I.R. 1943 All. 97. 1383 consideration  in  each individual case how,  insulting  the

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expressions  used were and whether there was  any  necessity for  the applicant to make use of those expressions  in  the application  which  he  was actually making  to  the  court. While we agree that the question of intention must depend on the  facts and circumstances of each case, we are unable  to accept  as correct the other tests laid down by the  learned Judge as finally determinative of the question of intention. In  two earlier decisions of the same High Court,  in  Queen Empress  v. Abdullah Khan(1) and Emperor v. Murli Dhar  (2), it was held that where an accused person made an application for transfer of the case pending against him and inserted in such   application   assertions  of  a   defamatory   nature concerning the Magistrate who was trying the case, there was no  intention  on the part of the applicant  to  insult  the court, but the intention was merely to procure a transfer of the  case.  We do not think that any hard and fast rule  can be  laid down with regard to this matter.  Whether there  is an  intention to offer insult to the Magistrate  trying  the case  or not must depend on the facts and  circumstances  of each  case  and  we  do  not  consider  it  necessary,   nor advisable, to lay down any inflexible rule thereto. Taking  the  aspersions  made  by  the  respondent  in   the application dated December 17, 1953, and the affidavit dated December  21,  1953, at their face value,  we  have  already expressed the view that they amounted to something more than a mere intentional, personal insult to the Magistrate;  they scandalised the court itself and impaired the administration of  justice.  In that view of the matter s. 3(2) of the  Act did not stand in the way and the learned Judges of the  High Court were wrong in their view that the jurisdiction of  the High Court was ousted. We  accordingly allow the appeal and set aside the order  of the  High  Court dated February 9, 1955.  In our  view,  the High  Court had jurisdiction to take cognizance of  the  act complained of and the case must (1) (1898) A.W.N. 145. 176 (2) (1916) 38 All. 284. 1384 now  be  decided by the High Court on merits  in  accordance with  law.   It  is  only necessary  to  add  that  the  act complained  of was committed as far back as 1953 and  it  is desirable   that   the  case  should  be   dealt   with   as expeditiously as possible. Appeal allowed.