IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27. 06.2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.4003 of 2008 S.Rajanikanth ... Petitioner Vs. Tmt.C.Thirumagal VII Metropolitan Magistrate George Town Chennai 600 001 ... Respondent Petition filed under Section 482 Cr.P.C, to call for the entire records connected with the order made in Crl.M.P.No.209 of 2008 dated 08.02.2008 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai and set aside the same. For Petitioner : Mr.R.C.Paul Kanagaraj For Respondent : Mr.R.Margabandhu ----- O R D E R This petition has been filed under Section 482 Cr.P.C to call for the records connected to the order dated 08.02.2008 of the learned VII Metropolitan Magistrate, George Town, Chennai in Crl.M.P.No.209 of 2008 on the file of the said court, set aside the same and pass such further or other orders as this Hon'ble may deem fit. 2. The brief facts and circumstances under which the petition invoking the inherent powers of the High Court came to be filed are as follows: i) Two persons by names Thoufeek and Vetriveerapandian were arrested as a preventive measure by the Sub Inspector of Police, B2-Esplanade Police Station, Chennai on 12.01.2008 under Section 151 Cr.P.C r/w Section 7(1)(a) Criminal Law Amendment Act after registering a case in Crime No.19/2008 on the file of the said police station in view of the proposed visit of Thiru.Narendira Modi, Hon'ble Chief Minister of Gujarat on 14.01.2008. They were produced before the VII Metropolitan Magistrate, Chennai on 13.01.2008 and were remanded to judicial custody by the said Metropolitan Magistrate. The Gujarat Chief Minister came to Chennai on 14.01.2008 and returned safely on the very same day. https://hcservices.ecourts.gov.in/hcservices/ Due to intervening pongal holidays, no bail application was moved till 21.01.2008. On 21.01.2008 a bail application was filed before the VII Metropolitan Magistrate, George Town, Chennai as Crl.M.P.No.146/2008 in Crime No.19/2008 of B2 Esplanade Police Station. The learned VII Metropolitan Magistrate, George Town, Chennai adjourned the bail application to 24.01.2008. Hence a Criminal Original Petition in Crl.O.P.No.1257 of 2008 was filed on the file of this court, seeking a direction to the VII Metropolitan Magistrate, George Town, Chennai to dispose of the bail application immediately. A learned single judge of this court (Hon'ble Mr.Justice M.Jeyapal) passed an order on 22.01.2008 directing the VII Metropolitan Magistrate, George Town, Chennai to advance the hearing of the bail petition in Crl.M.P.No.146/2008 to 23.01.2008 and dispose of the same in accordance with law on the very same day. Pursuant to the said order of this court, the learned VII Metropolitan Magistrate advanced the hearing of the bail petition Crl.M.P.No.146/2008 to 23.01.2008 from 24.01.2008. After hearing, the learned VII Metropolitan Magistrate passed an order on 23.01.2008 dismissing the said petition. Pursuant to the dismissal of the said bail petition, a bail petition was moved before the learned Principal Sessions Judge, Chennai in Crl.M.P.No.709/2008. The learned Principal Sessions Judge, Chennai, after hearing, passed an order on 25.01.2008 allowing the said petition and granting bail in the above said case with certain conditions. Thiruvalargal Sankarasubbu and Rajanikanth (the petitioner herein) and Ms.S.Sengodi were the counsel for the above said Thoufeek and Vetriveerapandian before the Principal Sessions Judge in the bail petition. After getting a copy of the order of the learned Principal Sessions Judge, Ms.S.Sengodi, one of the counsel on record for the accused persons in Crime No.19/2008 of B2 Esplanade Police Station, presented the same along with surety papers to the learned VII Metropolitan Magistrate, George Town, Chennai on 28.01.2008. ii) The respondent herein, who was the then VII Metropolitan Magistrate, George Town refused to take up the matter for verification of surety papers and insisted upon the presence of the petitioner Rajanikanth, who was also a counsel on record for the said accused persons. As the surety papers were not scrutinized till 4.30 p.m, the petitioner Rajani Kanth, after winding up his work in the High Court, went to the court of the VII Metropolitan Magistrate, George Town, Chennai. Before that there was some altercation between Ms.S.Sengodi, advocate and the respondent herein as the said advocate alleged that the respondent used disrespectful and unparliamentary words against petitioner Rajani Kanth. On the arrival of the petitioner in the court of the VII Metropolitan Magistrate, George Town, chennai again there was an altercation between the petitioner Rajani Kanth and the respondent herein, since the petitioner questioned the respondent as to the propriety of her addressing him singularly and with unparliamentary words. Pursuant to the same, alleging that at about 4.30 p.m on 28.01.2008, Rajani Kanth, the petitioner herein, had wantonly and intentionally insulted the second respondent using unparliamentary words and threatening that a private https://hcservices.ecourts.gov.in/hcservices/ affidavit would be filed against her, the respondent herein, the then VII Metropolitan Magistrate, George Town, Chennai decided to initiate criminal proceedings in a summary manner under Section 345(1) Cr.P.C against the petitioner herein for an offence punishable under Section 228 of the Indian Penal Code and issued a show cause notice on 29.01.2008 in Crl.M.P.No.209 of 2008 directing the petitioner to show cause within two days as to why he should not be punished under Section 345(1) Cr.P.C. According to the show cause notice he had committed an offence punishable under Section 228 IPC. iii) The said show cause notice was served on the petitioner on 07.02.2008 at 10.30 a.m. Though 2 days time had been given to show cause, the suo motu criminal proceedings initiated in Crl.M.P.No.209 of 2008 was taken up for hearing on 08.02.2008 at 5.30 p.m itself. The petitioner had not offered any explanation by then. He was also not present in the court on the above said date. Therefore, the respondent, who was the then VII Metropolitan Magistrate, George Town, Chennai, passed the impugned order dated 08.02.2008 convicting the petitioner Rajanikanth (advocate) under Section 345(1) Cr.P.C and sentencing him to pay a fine of Rs.75/- and to undergo simple imprisonment for 5 days in case of default in payment of fine. The said order passed by the respondent while she was functioning as the VII Metropolitan Magistrate, George Town, Chennai is challenged invoking the inherent powers of the High Court under Section 482 Cr.P.C. 3. The respondent has entered appearance through counsel and filed a counter affidavit. In the said counter affidavit, the respondent has stated that, on 23.01.2008 when the bail application Crl.M.P.No.146/2008 was dismissed by her, the petitioner Rajani Kanth threatened to file a private affidavit against the respondent alleging commission of offences under the SC/ST Act; that on 28.01.2008 at 10.30 a.m one lady advocate by name Ms.Sengodi appeared before her and produced the Principal Sessions Court's order and surety papers; that it was the practice of the respondent to take up such matters only at 3.00 p.m; that at 3.00 p.m when the matter was called, the respondent wanted to know why the petitioner Rajani Kanth wanted to file a complaint under SC/ST Act and informed Ms.Sengodi, advocate to make the petitioner Rajani Kanth appear before the respondent; that despite the instructions given by the respondent, Ms.Sengodi alone presented the surety papers; that on seeing the same, the respondent again instructed her to ask the petitioner herein to appear; that Ms. Sengodi, advocate retorted by stating that she was also a counsel on record and that the respondent should not address the other advocate, namely the petitioner herein, in singular "mtd; ,td;@; that shocked over the said behaviour of Ms.Sengodi, advocate, the respondent asked her to wait till she would finish the other court works; that after completing the other works she called Ms.Sengodi, advocate to bring the sureties, but she behaved disrespectfully stating that she need not come as and when the respondent would call her; that the other advocates, https://hcservices.ecourts.gov.in/hcservices/ who were present in the court cautioned Ms.Sengodi over the language used by her for which she retorted stating that she need not beg for orders like others; that immediately the advocates around her started shouting at her and that sensing problem, the respondent called the sureties and verified the papers and that she also instructed the assistant of her court to see that the other advocates were not provoked. It was further contended in the counter affidavit that for about 2 to 3 minutes prior to 4.30 p.m Ms.Sengodi, went out of the court hall and within three minutes i.e. at 4.30 p.m, the petitioner accompanied by 40 to 50 persons including Ms.Sengodi, out of whom some were not in advocate robes, entered the court hall and shouted at the respondent; that at that moment the petitioner Rajani Kanth insulted the respondent by using unparliamentary words like "tho ngho;@; that the said act of the petitioner caused insult and humiliation to the respondent in the presence of a number of advocates, court staff and public who were present in the court; that the said insult was caused to her by the petitioner while the respondent was discharging her official duties as the presiding officer of the court; that hence she properly initiated criminal proceedings under Section 345(1) Cr.P.C by issuing show cause notice on the next day since the occurrence took place at the fag end of the court hours on 28.01.2008 and that therefore, the initiation of the criminal proceedings under Section 345(1) Cr.P.C. on 29.01.2008 cannot be assailed. It is the further contention of the respondent that though the notice issued on 29.01.2008 was sought to be served on the petitioner through the court orderly attached to B1- North Beach Police Station, the petitioner evaded service of the show cause notice till 07.02.2008 and only on 07.02.2008 at 10.30 a.m one Mr.Pandian, the court orderly attached to the said police station, served the notice on the petitioner; that on 08.02.2008 when the contempt proceedings was taken up, the petitioner Rajani Kanth was not present; that he had not given any explanation to the show cause notice and that therefore, the impugned order was passed convicting him under Section 345(1) Cr.P.C and imposing a fine of Rs.75/- with a default sentence of one week simple imprisonment in case of default in payment of fine. It is the further contention of the respondent that the allegation made in the petition as if the impugned order dated 08.02.2008 was passed even before the expiry of two days time granted in the show cause notice is not correct and that there is no defect, infirmity or illegality in the impugned order passed by the second respondent. With the above said averments the respondent prayed for the dismissal of the petition. 4. The point that arises for consideration in this petition is "whether the impugned order of the respondent dated 08.02.2008 made in Crl.M.P.No.209/2008 convicting the petitioner under Section 345(1) Cr.P.C and imposing a https://hcservices.ecourts.gov.in/hcservices/ sentence of payment of fine of Rs.75/- with a default sentence directing the petitioner to undergo simple imprisonment for 5 days in case of default in payment of fine is liable to be set aside to prevent abuse of process of court or otherwise to secure the ends of justice using the inherent powers of the High Court under Section 482 Cr.P.C.? 5. The arguments advanced by Mr.R.C.Paul Kanagaraj,learned counsel for the petitioner and Mr.R.Margabandhu, learned counsel for the respondent were heard. This court paid its anxious consideration to the same and also took into consideration the materials available on record. 6. The respondent, as the Presiding Officer of the Court of VII Metropolitan Magistrate, George Town, Chennai, has passed the impugned order dated 08.02.2008 in Crl.M.P.No.209/2008 in exercise of the power conferred under Section 345(1) Cr.P.C. The impugned order is challenged by the petitioner on the ground that there is a material irregularity, illegality and wrong exercise of jurisdiction, besides the order being abuse of process of court. The impugned order is also challenged on the ground that reasonable opportunity, before condemning the petitioner for his alleged act, was not given to him so far as the impugned order was passed in a hurried manner, even before the expiry of the two days period granted to the petitioner to show cause as to why he should not be proceeded with and punished for an offence under Section 228 IPC following the procedure contemplated in Section 345(1) Cr.P.C. 7. The learned counsel for the petitioner has vehemently contended that there is an apparent error on the face of the record and the impugned order itself was passed after having lost the jurisdiction to proceed against the petitioner under Section 345(1) Cr.P.C. In this regard, The following are the submissions made by the learned counsel for the petitioner assailing the initiation of the proceedings:- "For the exercise of the power to try summarily for offences under Sections 175, 178, 179, 180 or 220 IPC invoking the powers under Section 345(1) Cr.P.C, the offender should be detained in custody on the same day of commission of the offence and the order should be passed on the same day, after giving a reasonable opportunity of showing cause as to why he should not be punished under the said section. In this case, admittedly the occurrence took place on 28.01.2008 and the proceedings under Section 345(1) was not taken on the said date. Nor was the petitioner caused to be detained in custody on the said date. In fact the proceedings was initiated only on 29.01.2008 by issuing a show cause notice when the petitioner (alleged offender) was not present in the court. Hence it is quite obvious that the criminal https://hcservices.ecourts.gov.in/hcservices/ proceedings under Section 345(1) Cr.P.C was not initiated on the very same day on which the alleged occurrence took place." This court finds substance in the contention raised on behalf of the petitioner that the court in whose presence or in whose views the offence/offences under the above said provisions of IPC is / are committed should initiate proceedings under Section 345(1) on the very same day and that in case it is not done so, then the power to try summarily under Section 345(1) Cr.P.C is lost. Accepting the said contention raised on behalf of the petitioner will not amount to accepting a proposition that no criminal action can be taken under other provisions of the Code of Criminal Procedure for such an offence committed in the view or presence of the court. The regular procedure of lodging a complaint, registering a case, investigating the same and instituting prosecution on police report or by following the private complaint procedure is always open and it is not lost simply because the court fails to initiate proceedings for contempt under Section 345 (1) on the date of commission of the offence itself. 8. However, it is contended on behalf of the respondent that accepting the said contention will make the court helpless if a person deliberately commits the offence at the eleventh hour of the working day; that a person may commit such an offence a few minutes prior to the rising of the court and immediately escape from the court and thereby may prevent the Presiding Officer of the court from proceeding against him summarily under Section 345 (1) Cr.P.C and that the same is not intended by the legislature in enacting such a provision. As rightly pointed out by the learned counsel for the petitioner, the answer to the above said submission made by the learned counsel for the respondent is that, in such a situation the Presiding Officer of the court initiating contempt proceedings under Section 345(1) Cr.P.C can prolong the sitting on the same day for the purpose of disposal of the proceeding. For better appreciation Section 345(1) Cr.P.C is reproduced here under:- " When any such offence as is described in section 175, section 178, 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." https://hcservices.ecourts.gov.in/hcservices/ A reading of Section 345(1) Cr.P.C will show that the summary proceedings for the offences punishable under the provisions of the Indian Penal Code mentioned in sub section (1) of section 345 Cr.P.C. should be initiated on the same day of commission of the offence; that the offence should be taken cognizance of on the same day and that the order should be passed on the very same day after giving a reasonable opportunity to show cause as to why he should not be punished under the said section. 9. In this case, the offence was allegedly committed on 28.01.2008. The petitioner was not caused to be detained and the proceedings under Section 345(1) was not initiated on the same day. On the other hand, it was sought to be initiated by issuing a show cause notice on the succeeding day, namely 29.01.2008. The same, as rightly pointed by the learned counsel for the petitioner, is outside the scope of Section 345(1) Cr.P.C. Therefore the initiation of the criminal proceedings under Section 345(1) Cr.P.C, not on the same day of commission of the offence but on the succeeding day, is a material irregularity which will vitiate the proceedings. Once the court omits to or is disabled from taking cognizance of the offence on the same day, then it loses jurisdiction to initiate the summary proceedings under Section 345(1) Cr.P.C. In such an event, the only alternative available is to set the criminal law in motion in the regular course of preferring a complaint under the private complaint procedure or lodging a complaint with the police. Therefore the very initiation of the criminal proceedings under Section 345(1) Cr.P.C is against the provision and the impugned order passed in the proceeding thus initiated cannot be sustained and the same is liable to be set aside. 10. The learned counsel for the petitioner has also contended that the impugned order cannot be sustained and the same is liable to be set aside since there is a patent defect in the proceedings because of the respondent's omission to comply with the requirement of sub clause (3) of Section 345 Cr.P.C; so far as the stage of the proceedings interrupted was not stated either in the show cause notice dated 29.01.2008 or in the impugned order dated 08.02.2008. Which case was being taken up when the interruption to the judicial proceedings and the insult to the Judicial Officer was caused? - has not been spelt out in clear terms either in the show cause notice or in the impugned order. Therefore, the said contention of the learned counsel for the petitioner should also be countenanced. 11. The next contention of the learned counsel for the petitioner is more vital. According to the said contention, no reasonable opportunity was given to the petitioner to show cause against the proposed punishment and the denial of such reasonable opportunity not only offends the principles of natural justice but also the mandatory requirement embodied in sub section (1) of Section 345 Cr.P.C. The learned counsel for the petitioner has pointed out the fact that the show cause notice was served on the petitioner on 07.02.2008 at 10.30 a.m; that in the said show cause https://hcservices.ecourts.gov.in/hcservices/ notice, two days time had been granted to show cause as to why he should not be punished and that before the expiry of two days, the respondent took up the matter on 08.02.2008 itself and passed the impugned order in a hurried manner convicting the petitioner for an offence under Section 228 IPC and imposing the punishment indicated supra. 12. A meek attempt was made by the learned counsel for the respondent by contending that Section 345 does not state how much time should be given for offering explanation as to why the offender should not be punished and that impugned order shall not be vitiated on the sole ground that the same was passed before the expiry of two days from the date of service of the show cause notice on the petitioner. It is also the contention of the learned counsel for the respondent that though the show cause notice was actually served on the petitioner on 07.02.2008, the petitioner got knowledge of the proceedings initiated against him much earlier; that instead of appearing and showing cause against the proposed penalty, he was evading service of the show cause notice till 07.02.2008 and that therefore, it cannot be said that there was denial of opportunity. It is the further contention of the learned counsel for the respondent that the knowledge of the initiation of the criminal proceedings itself is enough and therefore the petitioner cannot complain of absence of reasonable opportunity to defend himself. 13. In support of the above said contention, the learned counsel for the respondent cited the judgment of the Hon'ble Supreme Court in The Aligarh Municipal Board and others v.Ekka Tonga Mazdoor Union and others reported in AIR 1970 SC 1767. In the said case before the Hon'ble Supreme Court, an order of prohibitory injunction was allegedly breached for which proceedings for contempt was taken under Sections 1 and 3 of Contempt of Courts Act, 1952. When it was contended as a defence to the contempt proceedings that the prohibitory injunction order was not officially served on the party against whom it was granted, the Supreme Court held that the official service of the order was not necessary and that it would be sufficient to prove that the person against whom such an order was granted had knowledge of the exact order and with such knowledge, he committed the breach of the order of prohibitory injunction. 14. This court is at a loss to understand as to how the above said observations made by the Hon'ble Supreme Court in the said case is applicable to the facts of the present case. Therein a prohibitory order was violated by the person against whom such an order was passed and in an action for contempt under the Contempt of Courts Act, the contemnor tried to defend by pleading that the official service of the order allegedly violated was not duly effected. Only in that context, the Hon'ble Supreme Court held that the knowledge of such an order would replace the necessity of official service of the order and any violation of the order after having such knowledge of the order would amount to willful disobedience of the order of the court and thus contempt of court. https://hcservices.ecourts.gov.in/hcservices/ In the case on hand is not one in which an order was passed by a court and the same was violated by the petitioner after coming to know that such an order had been passed. The willful disobedience of such an order would attract the proceedings for contempt under the provisions of the Contempt of Courts Act, 1971. Excepting the power to take summary proceedings for the offences under specific provisions of IPC mentioned in Section 345(1), the courts subordinate to High Court cannot initiate contempt proceedings under Contempt of Courts Act. Therefore, the said case cited by the learned counsel for the respondent does have no relevance to the facts of the case on hand. Factually also, it is not correct to state that the knowledge of the petitioner regarding initiation of proceedings under Section 345(1) Cr.P.C is obvious from the representation made to the Hon'ble The Chief Justice. In the said representation, the petitioner has referred to the complaint lodged with the police and not the criminal proceedings initiated under Section 345(1) Cr.P.C. Therefore, the contention that there was knowledge of initiation of the