ORDER
A. Packiaraj, J.
1. This revision has been taken on file by the High Court on its Suo Motu jurisdiction on the basis of the letter written by one Rajasekar to the Chief Judicial Magistrate, Nagapattinam on the basis of the orders passed by the Judicial Magistrate, Nagapattinam, in M.C. No.14 of 1999, convicting and sentencing one Janarthanam for offence under Section 228 IPC and directing him to undergo simple imprisonment for six months and to pay a fine of Rs.1000/- in default to undergo two weeks simple imprisonment.
2.The brief facts of the case is as follows:-
a) One Janarthanam, instituted a private case against his brothers in CC No.2526 of 1996. In that connection, on 09.09.1999, he filed a petition to give a copy of the document sent by the Mayiladuthurai Hospital but the same was returned. Hence on 10.09.1999, he wrote a letter to the Judicial Magistrate, Nagapattinam and a copy thereof marked to the Chief Judicial Magistrate, Nagapattinam, asking him for the reasons as to why the Judicial Magistrate, Nagapattinam, returned the petition and also requested him, to give a copy of the document sent by the Mayiladuthurai Hospital connected with the case and had further stated in the said letter that due to the decision of the Magistrate, he had a fear that he will not get justice in the hands of the Magistrate and he also has learned that the Magistrate accepts bribes.
b) The learned Magistrate has taken cognizance of this letter and took action against the said Janarthanam and he informed Janarthanam that his action has interfered with the court activities and thereby Janarthanam has committed an offence of contempt of court and questioned him as to why he should not be punished under section 228 IPC. The said Janarthanam reinforced his statement to be true and that he was guilty. Hence accepting the voluntary statement of Janarthanam, the court found him to be guilty of offence under Section 228 IPC and sentenced him to undergo Simple Imprisonment for six months and to pay a fine of Rs.1000/-. Janarthanam was straightaway sent to imprisonment.
c) It appears that from the Sub Jail, Nagapattinam, Janarthanam wrote a letter to his friend, Rajasekaran stating about the incarceration. The said Rajasekaran in turn addressed a letter to the Chief Judicial Magistrate bringing forth the notice of the Chief Judicial Magistrate that the Judicial Magistrate has erred in himself convicting the Janarthanam for offence under Section 228 IPC and sentencing him to undergo 6 months Simple Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 weeks Simple Imprisonment, without following the procedure contemplated under Section 345 and 346 Cr.P.C. The said Rajasekaran has marked a copy of that letter to a Hon'ble Judge of this court and on the basis of the orders of My Lord, the Chief Justice, this court is seized off the matter.
3. On receipt of records and the moment this matter has been entertained as suo motu revision, the said Janarthanam has been directed to be released on bail. On perusing the records, I am constrained to pass the following order.
4. The judgment of the Judicial Magistrate, Nagapattinam does not disclose the nature of the petition, which the said Janarthanam filed on 9.9.1999 and why it was returned. However that is not the issue now. The issue now is that Janarthanam addressed a letter dated 10.9.1999 to the Judicial Magistrate, and marked a copy to the Chief Judicial Magistrate, and it is this letter, according to the Magistrate, that had interfered with the course of justice which enabled him to take action under Section 228 IPC.
5. The first point that has to be considered is whether a letter addressed to the court as such, what ever be the contents or whatever accusations are made, whether the same would fall under Section 228 IPC or not ?
6. Section 228 IPC reads as follows:-
'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.'
7. The Supreme Court had an occasion to analyze this Section in the decision made in State of Madhya Pradesh Vs . Revashankar reported in : wherein Their Lordships have stated that there are three ingredients essential for attracting Section 228 IPC they being,
(1) Intention,
(2) Insult to interruption to a public servant and
(3) The public servant insulted or interrupted must be sitting in any stage of a judicial proceeding.
8. Even assuming that the first two ingredients have been satisfied in the present case, can receipt of a letter by a Magistrate in his chambers, be stated that the Magistrate was sitting in any stage of a judicial proceeding. In the decision referred to above, a petition was filed for transfer, by the accused and in the said petition, there were some insinuating remarks, the details of which may not be necessary for deciding the issue on hand. However, the point that was raised is whether, when the said application for transfer was filed, was there any material on record to show that the Magistrate was sitting in any state of a judicial proceeding. The High Court had found that the Magistrate was sitting in a court at the time. But there is no reference to the particular work, judicial or otherwise which the Magistrate was doing at that time. The Supreme Court went on to say that 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. So far as the present case is concerned, it is not at all clear from the records, as placed before them 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 Section 228 IPC.
9. Similar is the situation in the case on hand, the Magistrate nowhere says as to what he was doing when he had received the letter. In all probability the letter would have been opened only in his chambers when he had retreated after judicial work. It is not his case that the case was posted on that day and that the letter was given in his presence in the open court. Therefore, as laid down by the Supreme Court, I am of the view that the third ingredient is conspicuously absent in the present case and it may not be said that this letter that has been received by the judicial officer when he was in any stage of the proceedings in court and therefore, in my opinion the offence under Section 228 IPC may not be made out. It may attract the provisions of contempt of court, as the Supreme Court also has observed in the same case that action could be taken under Section 3(2) of the Contempt of Courts Act but not definitely under Section 228 IPC.
10. Yet another disturbing feature in the present case is when the Magistrate proposes to sentence the accused for imprisonment or fine of Rs.1000/- he should necessarily follow the provisions of Section 346 Cr.P.C. In other words, section 345 and 346 are the relevant procedures under which an offence under Section 228 IPC has to be proceeded with. Section 345 Cr.P.C contemplates that when an offence under Section 228 IPC is committed in the presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in custody and before rising, give the offender a reasonable opportunity of showing the cause why he should not be punished under this section and thereafter, sentence the offender to a fine not exceeding Rs.200/- and in default to fine simple imprisonment for a term which may extend to one month and clause (2) specifies that in such case, the court should record the facts constituting the offence. Clause (3) specifically states that the records of the Magistrate shall show the nature and stage of the judicial proceedings in which the court interrupted or insulted was sitting and the nature of the interruption or insult.
11. In my considered opinion, 345(3) Cr.P.C is totally absent in the present case. But what is more dis-heartening is that the Magistrate has not followed section 345 Cr.P.C. since it makes clear that the sentence that could be imposed under this section is only Rs.200/- fine and though section 228 IPC contemplates imprisonment for six months, the same could be done only when the procedure mentioned in section 346 IPC is followed.
12. Section 346 Cr.P.C contemplates that when the Magistrate before whom such offence has been committed feels that the punishment for such an accused, who has committed an offence under Section 228 should be in excess of Rs.200/- fine, he should necessarily after recording the facts constituting the offence and the statement of the accused, forward the case to a Magistrate having jurisdiction to try the same and it is that Magistrate who shall proceed and deal with and try the case as if it was instituted on a Police report.
13. Therefore, in the present case, if the Judicial Magistrate, Nagapattinam feels it necessary that the accused Janarthanam should be sentenced to imprisonment, he ought to have followed Section 346 Cr.P.C and recorded the facts constituting the offence and the statement of the accused and forwarded the matter to the Magistrate having jurisdiction to try the case and it is that Magistrate who should have passed this sentence. Hence Judicial Magistrate, Nagapattinam himself passing such order is illegal.
14. In this context it is pertinent to note that a Division Bench of Rajasthan High Court in State v. Nand Kishore, reported in has held as follows:
'In a trial for an offence of which cognizance has been taken under Section 480, Criminal P.C., (old code) omission to record proceeding in the manner laid down in Section 481, is fatal to the proceedings and such an omission can be construed not merely an irregularity but an illegality. Section 480, Criminal P.C. provides summary proceedings for the trial of direct contempt of court. In such a proceeding the Court concerned is the complainant, prosecutor and Judge. In view of the summary nature of the trial and in order to safeguard the interests of the persons dealt with in a summary manner, who are given a right of appeal, the proceedings must show precisely the nature and the stage of the judicial proceeding in which the Court interrupted or insulted was sitting.'
15. Likewise, in the decision made in Sahasrangshu Kanti Acharya Vs . The State, reported in : it has been held as follows:-
'If the court in any case considers the person accused of any offences referred to in section 480 (old code) of the Code of Criminal Procedure and committed in its presence or view should be imprisoned, otherwise that a fine exceeding the sum of Rs.200/- should be imposed upon him in view of the facts and circumstances of the case or for any other reason that the court may deem fit and proper, such court should record the facts constituting the offence and the statement of the accused and then may forward the case to a Magistrate having jurisdiction to try the same. Cognizance of an offence punishable under Section 228 of the Penal Code can be taken on a complaint of the court concerned or the offender may be dealt with by the said court as laid down in section 482 of the Code of Criminal Procedure.'
16. Therefore, in the above circumstances, I have no hesitation to hold that the entire proceeding is vitiated and the revision is hereby allowed. Bail bonds, if any, shall stand cancelled.