Calcutta High Court
Abu Bakkar Gazi, Adv. vs Md. Atiar Mollah & Ors. on 12 May, 2000
Equivalent citations: (2000)3CALLT53(HC)
Author: K. J. Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT K. J. Sengupta, J.
1. The short point has arisen in this case as to whether a Joint affidavit in view of Rule 30 of the Contempt of Court Rules of this Court 1975 should be sufficient for defending a contempt proceeding Initiated against more then one person. Mr. Gupta appearing for the alleged contemners submits that it is permissible in view of the decision rendered by the learned single Judge of this Court reported in 1981 CLJ 528. Mr. Gupta is very fair enough to bring another decision of the learned single Judge holding contrary view. The aforesaid Judgment was rendered by Justice K. M. Yusuf reported in 1991 Crl LJ 246. Mr. Gupta submits that the contrary view taken by Justice Yusuf relying on Division Bench Judgment of this Court . He argues that the Division Bench judgment of this Court has not dealt with this point, particularly it has been held amongst others by the Division Bench that though contempt proceeding is in the nature of proceedings in personal, the representation in representative character is not permissible in the contempt proceeding. Justice Jana has specifically dealt with and interpreted the Rule 30 and while doing so His Lordship was pleased to hold that the joint affidavit is permissible. From a bare reading I should follow the ratio of authority by Justice Jana Instead of Justice Yusuf.
2. The learned lawyer for the petitioner on the other hand argues that the view taken by Justice Yusuf has subsequently followed by two learned single Judge of this Court. This aforesaid decisions have been reported in 1995 (1) CHN 104 and 1993(il) CHN 282. The aforesaid two decisions have specifically held that in a contempt proceeding separate affidavit is needed and in order to put up a defence where the alleged contemners are more than one.
3. Having heard the learned counsels and having gone through the judgments of this Court, it appears to me that the views taken by Justice Yusuf appears to be acceptable to me, not only because subsequently the learned two other Judges have followed, but for other reasons, in my view, the contempt proceedings is a quasi criminal proceeding which entails punishment of Imprisonment or of fine which is nothing short of a punishment resulted in a criminal proceeding after trial. So the alleged contemners are in a position of an accused in a quasi criminal trial. The defence and/or plea of not guilty or guilty can be taken by the person who has been alleged with a charges of commission of contempt of Court and no other person can take such a plea. Therefore, in a contempt proceeding though there is no separate procedure for hearing the accused and/or alleged contemner whether he is pleading guilty or 'not guilty', such plea is only taken under our procedural system in the affidavit itself. So a representative of the alleged accused or the alleged contemner cannot take such plea on behalf of the accused/contemner. Even if such plea is taken by any person this cannot be treated to be a defence of the alleged contemner. This may be treated as piece of evidence and/or corroborative statement on behalf of the accused. Unless a defence of 'not guilty' is put forward, question of corroboration of his plea or for that matter the evidence in support of the defence does not and/or cannot arise. On the aforesaid analysis of the situation I am of the view, in all practical purposed and for effective administration of justice in a quasi criminal proceedings the affidavit of the alleged contemner is a must, otherwise the Court would not be in a position to proceed in this proceeding in a case where the alleged contemner pleads 'not guilty'. If no such affidavits are filed the Court will presume that the alleged contemners have no defence in that matter and the Court would proceed accordingly.
4. For the greater interest of the alleged contemners such affidavit must be filed. Therefore, the Rule 30 though do no speak of specifically for filing affidavit by the alleged contemners, but the intention of the Rule is implicit that the affidavit shall be filed by the alleged contemners.
5. The Division Bench of this Court in a reported decision as cited above has clearly laid down that this proceeding is in the nature of personam as the personal allegations are made and the persons against whom the allegations are made he is the person only to refute the same. So when the proceeding is in personam in nature, the particular person who has been charged can effectively deal with the charges and not other persons. So I am unable to accept the view taken by Justice Jana and respectfully I beg to differ in view of the fact that there is an earlier Division Bench judgment of this Court on this point and thereafter subsequently learned Judges consistently followed the view of Justice Yusuf. Therefore, I hold in this case all the alleged contemners must file separate affidavits, Mr. Gupta's clients, however, have filed a Joint affidavit bonafide and relying on the Judgment rendered by Justice Jana. So this filing of the joint affidavit is on the basis of the mis-conception of law and. as such I must allow them further opportunity to file separate affidavits. Mr. Gupta in anticipation had made separate affidavits ready by his clients, so I allow these affidavits are to be filed. The affidavit-in-reply are to be filed by the petitioner within two weeks after the summer vacation.
6. Let this matter be listed for hearing three weeks after the summer vacation.
The alleged conlemners are present to day in terms of my earlier order. Therefore, personal appearance are dispensed with until further orders of this Court upon their usual undertakings which they have given earlier.
7. Petition disposed of