The Judgment of the Court was as follows:—
This is a Rule calling upon the Opposite Party to show cause why the order of the District Judge of Hooghly, dated the 11th April 1928, imposing a fine of Rs. 50 on each of the Petitioners for contempt of Court should not be set aside on the ground that it is based on no material evidence on the record. It appears that the Judge appointed a Receiver in a suit in respect of some properties alleged to belong to the Tarakeswar Temple. On the 28th January 1928 the Receiver submitted a report to the Judge the purport of which is that from the report of his collection agent he has found that the persons named in the report are systematically opposing his collection agent and obstructing the collection of rent from the tenants by him. On receipt of this report on the 31st January the Judge issued notices to the Petitioners to show cause why they should not be dealt with according to law for systematic opposition to the Receiver's collection. The Petitioners appeared before the Judge and in showing cause said that they were falsely implicated because they were not on good terms with the Receiver's gomasta or collection agent. Without further materials the learned Judge, by his order of the 11th April 1928 found the Petitioners guilty of contempt of Court and sentenced them to pay a fine of Rs. 50 each. The only point which arises for consideration in this case is whether the order of the Judge based on the mere report of the Receiver which again was based upon the report of his collection agent can be supported in law. A proceeding in contempt of Court partakes of the nature of a criminal proceeding inasmuch as the party charged, if found guilty, is punished with fine or imprisonment. No doubt the Court may act summarily in matters of this kind. But when it acts on the report of a Receiver or any other officer there should be some evidence either oral or by means of affidavits in order to enable the Court to come to a finding. As the proceeding taken by the Court in matters of contempt is a judicial proceeding in which the Court acts judicially, ordinarily, if the offence is not committed in the presence of the Court, it is started by means of an application supported by an affidavit; and it is the practice in England that copies of the affidavit and other necessary papers are served with the notice of motion on the other party. Oswrald on Contempt, 3rd Edition, page 205. At page 212 the law is thus stated: “In cases of criminal contempt, the facts are proved by affidavits and the person against whom a committal is sought has the right to see the applicant's evidence in reply.” In In re Motilal Ghose , Woodroife, J., at page 200 observed thus: “It is what is called a ‘criminal’ contempt, but all proceedings, whether in respect of civil or criminal contempts, are, in my opinion, of a criminal nature where and in the sense that they are in poenam that is when their object is to punish by fine or imprisonment. It does not, however, follow that the procedure in such cases is in all respects the same as in an ordinary criminal case …. As regards the question of proof, no case, either civil or criminal, should be tried and determined otherwise than according to the law governing it.” Mookerjee, J., at page 240 of the report drew a distinction between civil contempt and criminal contempt and observed: “In the case of a criminal contempt the proceeding is for punishment of an act committed against the majesty of the law, and as the primary purpose of the punishment is the vindication of the public authority, the proceeding conforms as nearly as possible, to proceedings in criminal cases.”
Now in this case the only material before the Judge was the report of the Receiver and that report too was based on hearsay evidence. That hearsay evidence also was not before the Court. The law relating to contempt of Court invests the Court with absolute power. It is therefore more necessary that it should be exercised with great caution and not without ample materials before it to justify the order proposed to be passed so as to enable the superior Court to test the propriety of the order. We do not think that there was any legal evidence before the Court upon which the order of the learned Judge could be based.
The Rule is therefore made absolute and the order of the Judge set aside. We direct that the fine if paid be refunded.
C.C