(1.) I agree with ray brother Chowdhry that the Deputy Superintendent of Police is guilty of contempt of the Courts of the Judicial Magistrate and the District Magistrate, Fatehpur. Since it is a serious matter to find a Deputy Superintendent of Police guilty of contempt of Court, I would like to give my reasons for doing so. It is not necessary to repeat the facts which have been stated by my learned brother in his judgment.
(2.) THE case against the opposite party (I am for the present dealing with the case against the deputy Superintendent alone) is contained in the affidavit filed by Sheoraj in this Court on the basis of which these proceedings have been initiated. When the opposite party appeared in Court in response to the notice, it was brought to our notice by Sri P. C. Chaturvedi, who had filed the application for contempt proceedings, that Sheoraj had been won over by the opposite party and did not appear to give him further instructions. We summoned Sheoraj to appear personally and recorded his statement on oath. He disowned the application for contempt proceedings and the affidavit said to have been sworn by him in support of it. He also denied that the opposite party or anyone else ever threatened him or forced him to withdraw the complaint filed by him, or that he ever kept him in wrongful, confinement. If his statement made in Court is believed, it would mean that the opposite party has not committed any contempt. Since all the evidence against the opposite party is contained in the affidavit sworn by Sheoraj and Sheoraj's own deposition in Court is a complete retraction, it was contended, and contended most vehemently, by Shri S. S. Dhawan that there is no evidence on the basis of which the opposite party can be adjudged guilty of contempt of Court. He made it clear that he did not contend that the affidavit should be disbelieved because it is counter-balanced by the counter-affidavit filed by the opposite party; his contention is that while the affidavit was sufficient for the initiation of proceedings against the opposite party, it is not sufficient for finding him guilty of contempt. He treats the affidavit as if it were a plaint verified on oath; unless a plaint verified on oath is filed in Court, no summons would issue to the defendant; but once a summons is issued and the defendant appears in Court and files a written statement, verified on oath, denying the allegations in the plaint, the plaint cannot be treated as evidence and the suit cannot be decreed merely on its basis. If the suit is to be decreed, there must be evidence produced in Court in accordance with the provisions of the Evidence Act. So it was argued that the affidavit in support of the application cannot take the place of evidence, If me allegations made in the affidavit were not denied by the opposite party in his counter-affidavit, he might have been liable to be found guilty of contempt on the basis of the affidavit. But here the allegations have been denied in the counter-affidavit and, therefore, it was argued, there must be evidence produced under the Evidence Act before the opposite party can be held guilty. Reference was made to Section 1, Evidence Act, laying down that the Act "applies to all judicial proceedings in or before any Court, including Courts martial. . . . . . but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator. " it was contended that the present proceedings are judicial proceedings governed by the Evidence act, and that under the Evidence Act there must be evidence to justify a finding of guilt. The evidence Act does not make affidavits evidence. It was also contended that nobody can be convicted on the basis "of an affidavit which is nothing but an ex parte evidence, and that to convict a person on the basis of an affidavit would he against the procedure established by law and infringement of Article 21 of the Constitution. I have no hesitation in repelling the contentions, of Sri S. S. Dhawan.
(3.) CONTEMPT proceedings are governed neither by the Code of Criminal Procedure nor by the code of Civil Procedure. In -- 'sukhdev Singh v. Judges of the Pepsu High Court', AIR' 1954 SC 186 (A), it was pointed out by the Supreme Court that the power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of record, that the Code of Criminal Procedure does not apply in matters of contempt triable by a High Court, that it can deal with contempt summarily and adopt its own procedure, and that all that is required is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. Reference may also be made to -- 'state v. Padma Kant Malviya', AIR 1954 All 523 (FB) (B), to which I was a party. Law of evidence is a part of the law of procedure; if the contempt proceedings are not governed by any particular procedure, it follows that they are not governed by aay particular law of evidence. Even if contempt proceedings are judicial proceedings within the meaning of Section 1, Evidence Act, they are outside the scope of Section 1 and have always been treated as such. Contempt proceedings are usually, decided on the basis of affidavits and not a single authority was brought to our notice in which it was held that this cannot be done legally or that contempt must be proved against the alleged contemner in accordance with the provisions of the Evidence act. Were it illegal to find a person guilty of contempt on the strength of affidavits alone, there must necessarily have been judicial pronouncement to that effect, and the absence of any such judicial pronouncement shows that it is not illegal. The Evidence Act does not permit a person to be convicted without any evidence even if he has committed the offence in the presence of the Court trying him; but it is well-known that a person guilty of direct contempt, that is contempt in the presence of the Court, can be punished instantly without any evidence being recorded; if any authorities are needed reference may be made to -' in the matter of Terry', (1888) 128 US 289 (C); -- 'in the matter of Savin', (1889) 131 US' 267 (D); -- 'cooke v. United States', (1925) 267 US 517 (E) and -- 're William Oliver',. (1948) 333 us 257 (F ). In the ease of S. Terry (A), Harlan J. observed that: "for a direct contempt committed in the face of the Court, at least one of a superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof that its actual knowledge, of what occurred. " see also Halsbury's Laws of England, Vol. VIII, paragraph 67. It is therefore not true to say that contempt must be proved in the manner laid down in the Evidence Act; the Court undoubtedly has to, be satisfied that contempt has been committed, but is competent to adopt its own procedure for deriving satisfaction. It stands to reason that when the law does not prescribe the manner in which contempt should be brought to the notice of the Court, and when it has not even defined what contempt is, there cannot be any law as to the onus of proof, or the method of proof, in contempt proceedings. It is stated in --Oswald's Contempt of Court, 3rd edition, page 212 that: "in cases of criminal contempt the facts are proved by affidavit. " This statement is approved of in Halsbury's Laws of England, Volume 8, "contempt of Court", paragraph 63, where it is said that to found an application for criminal contempt the facts constituting the alleged contempt most be proved by affidavit. The word "proved" is significant; it shows that the affidavit is meant to supply the proof for final orders being passed on the application for contempt. The contempt said to have been committed by the opposite party is criminal contempt and it can be proved by affidavit. It is stated in 17 Corpus Juris Seeundum "contempt", para 84, that it has been held that a conviction for contempt based on affidavit is not a deprivation of the accused person's constitutional privilege to meet his witnesses face to face, and that affidavits on which a warrant is issued in contempt proceedings are admissible in evidence on the bearing. Since the Evidence Act expressly does not apply to affidavits, proving a fact by an affidavit is not barred; if a fact is allowed to be proved by an affidavit, it can be proved by an affidavit notwithstanding the provisions of the Evidence Act. It is laid down in Rule 12 (1) of Chapter IX of the Rules of Court, 1952, that an application praying that a person be punished for contempt "shall set out in the form of a narrative the material facts and circumstances and shall be supported by an affidavit. " i do not think this rule merely prescribes the form or contents of an application and that an affidavit is required to accompany an application simply to make it in order so that a notice may be issued. Since no procedure is prescribed even in the Rules of Court for contempt proceedings, there is no justification for saying that the affidavit is required simply to enable a notice of the application to be issued; really there is no warrant for dividing the proceedings into two parts, (1)relating to issue of notice, and (2) relating to the final hearing. There is no reason for saying that the affidavit is not meant to be used for passing final orders on the application for contempt proceedings. Under Rule 12 (2) the Court is empowered to call for an affidavit in any other matter coming up before it; there is no reason to think that this power is to be exercised by the Court only for the purpose of taking a preliminary step and not for the purpose of passing final Orders in the matter. If the affidavit required under Rule 12 (2) can be used to support the final orders passed in a case, the affidavit required under Rule 12 (1) also can be used to support the final orders in contempt proceedings, because the affidavits mentioned in the two provisions are intended to be used for identical purposes. Under Rule 13 any person opposing the grant of an application or showing cause against a rule may file a counter-affidavit. There may arise a question of issue of a notice or taking any other preliminary step on an application, but there cannot arise any question of issue of a notice or of taking a preliminary step when the opposite party appears in Court and denies the allegations of the applicant. Therefore the argument that any affidavit is required under the Rules simply to enable the Court to issue a notice or take any other preliminary step, is not available in respect of a counter-affidavit; the counter-affidavit must necessarily be for the purpose of supplying evidence in proof of the facts formed in it. As regards the use that can be made, there is no distinction between an affidavit and a counter-affidavit; if one can be used for a particular purpose, the other also can be used for the same purpose. If an affidavit were not to be treated as evidence, there would have been no necessity of a counter-affidavit. I am of the opinion that the purpose for which an affidavit is required under rule 12 (1) -is the same as that for which an affidavit is required under Halsbury's Laws of england, Vol. 8, "contempt of Court", para 63; the words "shall be supported" are used in the same sense in which the words "to found an application for contempt" are used. The rule thus allows contempt to be proved through an affidavit. Since the practice in this country, in England and in America has always been that contempt can be proved through an affidavit, that is the procedure established by law and holding a person guilty of contempt on the basis of an affidavit only docs not infringe his constitutional right under Article 21.;