Narain, J.:— Criminal Revision Nos. 2212 and 2336 of 1971 have been heard together as they arise out of the common judgment upholding the conviction of the petitioners of the two cases.
2. Kishori Mohan Prasad, the petitioner in Criminal Revision No. 2212 of 1971, was at the relevant time Junior Statistical Supervisor in the Garkha Block in the district of Saran, Dwarka Nath Singh is the petitioner in the other case and he was at the relevant time Panchayat Sewak in the said block. The complainant Kanhaiya lal Gour was the head Assistant-cum Accountant of the Block. Strike of the non-gazetted employees had commenced from the 11th July, 1968. The prosecution case is that on that date at about 3.45 P.M Kanhaiya Lal Gour came out of his office for some work and he was surrounded by the staff of the Block Petitioner Dwarka Nath Singh put a garland of shoes around his neck and petitioner Kishori Mohan Prasad took a photograph. Kanhaiya Lal Gour made a complaint to the Block Development Officer who forwarded it to the Sub-divisional Magistrate, which led to the prosecution. The petitioners were convicted by the trying Magistrate and the appellate court has affirmed the conviction of Kishori Mohan Prasad under Section 504 of the Indian Penal Code and sentence of six months' rigorous imprisonment. The appellate court also affirmed the conviction of Dwarka Nath Singh under Section 504 of the Indian Penal Code and its sentence of six months' rigorous imprisonment and the conviction under Section 352 of the Indian Penal Code and its sentence of six months' imprisonment.
3. I shall first take up the case of petitioner Kishori Mohan Prasad. The evidence is that photograph was taken from a distance of 2 to 4 cubits. There is, however, no material on record to show that the photograph was shown either to the complainant or to anybody else or that it was published. On the point of taking photograph there is the solitary evidence of the complainant. On these facts it has been argued that no offence under Section 504 of the Indian Penal Code is made out. It was submitted that the photograph might have been of the crowd as well and unless it can be conclusively brought on record that the photograph was of the complainant with the garland of shoes around his neck the offence cannot come under the mischief of Section 504 of the Indian Penal Code.
4. The opening words of Section 504 are—
“Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it likely that such provocation will cause him to break public peace, or to commit any other offence……..”
5. The word ‘insult’ according to the Oxford dictionary is to treat with offensive disrespect; to offer indignity to. Then again, it is not mere insult that is contemplated by Section 504. The ingredients essential for conviction under this section are three fold. Firstly, intentional insult, secondly, provocation therefrom and thirdly, intention or knowledge that such provocation is likely to cause the person so insulted to break the peace or to commit any other offence. In the present case, manifestly, these ingredients are not made out. Simply taking a photograph is not a disrespectful conduct nor offers any indingnity. Moreover there is nothing to show that taking of photograph was such a provocation as to induce the complainant to break the public peace or to commit any other offence on fact, his evidence is that he was only mentally pained. In my opinion, before it can be legitimately said that offence under Section 504 is made out it must be established that the photograph had been made public of shown to the complainant.
6. For the view that I have taken that for conviction under Section 504 there must be evidence of publication I am supported by a decision of this court in (1) Gauri Shanker v. Bachha Singh (19 P.L.R 892) which lays down that:—
“There is no of evidence of publication to Bachha Singh, that is to say, there is no evidence to show that the photographer brandished the photograph before Bachha Singh or that he transmitted it to Bachha Singh.”
7. For the reasons given above conviction and sentence recorded against the petitioner Kishori Mohan Prasad must be set aside.
8. Now as to the petitioner Dwarka Nath Singh as already stated above, case against him is for putting a garland of shoes around the neck of the complainant. The learned appellate court has found that ingredients of offences under Sections 504 and 352 of the Indian Penal Code are fully attracted in his case After some argument learned counsel for the petitioner did not challenge this part of the reasoning of the court of appeal below. I also agree with the view taken by the court of appeal.
9. Learned counsel, however, sought to argue that putting the garland of shoes around the neck of the compainant was just by way of fun and this is such a trivial matter that no man of ordinary sense or temper could treat it as an offence and for the purpose he put reliance upon Section 95 of the Indian Penal Code. This section inter alia says that
“nothing is an offence by reason that it caused or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.”
10. Learned counsel has also referred to a decision reported in (2) AIR 1966 Supreme Court 1773 (Mrs. Veeda Manezes v. Yusuf Khan Haji Ibrahim Khan) where it has been held that
“Section 95 of the Penal Code Rs. intended to prevent penalisation of negligible wrongs or of offence of trivial character. Whether an act which amounts to an offence is trivial would depend upon the nature of the injury, the position of the parties, relation between them, situation in which they are placed, the knowledge or intention with which the offending act is done and other related circumstances.”
11. The submission is that regard being had to the fact that it was just a fun amongst the co-workers that is, members of the same fraternity and the idea being just to make a fun or to befool the complainant it must be taken to be an act of joke and an offence of a very trivial nature. It is difficult for me to accept this contention. It will be noticed that the non-gazetted employees were on strike. The complainant was one of the loyal workers who had gone to discharge his official duty and when he came out he was subjected to such an indignity. Dwarka Nath Singh was just a Panchayet Sewak and he put the garland of shoes around the neck of the Head Assistant cum Accountant of the Block. Therefore, the matter cannot be viewed so lightly as is submitted on behalf of the petitioner.
12. There is, however aspect of the case and that is founded on the provisions of Section 562(1)(A) and Section 3 of the Probation of Offender's Act. It is menifestly a case where the petitioner was not actuated by any sinister motive or any motive which actuates a criminal. He was, as it seems to me misguided or spurred to action by the atmosphere which prevailed then. Taking these facts into consideration I think interest of justice would be met if Instead of the sentences as have been imposed upon him he be released after giving due admonition and it is, accordingly, being ordered.
13. With the above observation Cr. Revision No. 2212 of 1971 is allowed and Cr. Revision No. 2336 of 1971 is dismissed.
Applications partly allowed.
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