ABU BAKKAR GAZI Vs. MOHAMMAD ATIAR MOLLAH

JUDGEMENT

(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 Cri LJ 246. Mr. Gupta submits that the contrary view taken by Justice Yusuf relying on Division Bench Judgment of this Court reported in AIR 1952 Calcutta 919. 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(II) 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 defense 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 defense and/or plea of not guilty or guilty can be taken by the person who has been alleged with charges of commission of contempt of Court and no other person can take such a plea. Therefore, in 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 defense of the alleged contemner. This may be treated as piece of evidence and/or corroborative statement on behalf of the accused. Unless a defense of 'not guilty' is put forward, question of corroboration of his plea or for that matter the evidence in support of the defense 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 defense in that matter and the Court would proceed accordingly.