( 1 ) THE question that arises in this Special Criminal Application is about its maintainability under Article 226 of the Constitu- tion. The petitioner was convicted under sec. 345 of the Code of Criminal Procedure 1973 by a Commissioner appointed by the City Civil Court Ahmedabad as he found that the petitioner was causing interruption to him in the discharge of his judicial functions. He was sentenced to a fine of Rs. 175. 00 and in default of payment of fine to simple imprison- ment for fifteen days.

( 2 ) THE facts which compelled the Commissioner to take action under sec. 345 of the Code of Criminal Procedure 1973 against the petitioner are these. In judicial proceedings held by the Commissioner pursuant to a preliminary decree in a partition action certain questions in cross-examination were put to the petitioner defendant No. 1 who was a witness before the Commissioner by the counsel appearing for the opposite side. The Commissioner noticed the petitioner answering the questions in an insulting manner and he was warned several times to behave properly and answer the questions. His answers to the Commissioner were very rude and insulting. His own advocate had asked him to behave properly but he paid no attention to his advice. The counsel cross-examining him appealed to the Commissioner to control the petitioner but all attempts to control him failed. As he was behaving in an insulting manner the Commissioner again repeated his warnings. When he was warned for the last time the petitioner became furious and half standing up on the chair pointed his hands towards the Commissioner and told him that he may take not only contempt proceedings but may even hang him and he continued to insult the Commissioner and the advocate and interrupted the judicial proceedings before the Commissioner. The Commissioner therefore took action and convicted and sentenced him as stated above.

( 3 ) THE question now is whether on the facts the Commissioner was justified in convicting the petitioner under sec. 345 of the Code of Criminal Procedure 1973 There are two provisions which require to be noticed on the facts of this case. One is sec. 228 of the Indian Penal Code and the other is sec. 345 of the Code of Criminal Procedure 1973 Sec. 228 of the Indian Penal Code says :-228 Whoever intentionally offers any insult or causes any interruption to any public servant while such public servant is sitting 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. Section 345 of the Code of Criminal Procedure 1973 prescribes the procedure in certain cases of contempt and this section reads-345 (1) When any such offence as is described in sec. 175 sec. 178 sec. 179 sec. 180 or sec. 228 of the Indian Penal Code 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 sec. 228 of the Indian Penal Code 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. THE difference between the two sections is this. While sec. 345 of the Code of Criminal Procedure empowers a Civil Criminal or Revenue Court to take action when an offence