K. K. JOSHI v. SHRIRAM SHARMA — 1982 DIGILAW 557 (MP)

U. N. BHACHAWAT, J. ( 1 ) THIS order will dispose of interlocutory application No. 2484/1982. ( 2 ) A resume of the facts, essential to dispose of this application, is as follows : -this application has been filed by K. K. Joshi (hereinafter referred to as 'the complainant' ). The complainant at the time of initiation of this case was posted as District and Sessions Judge at Datia. He lodged a complaint in this Court under Sections 12 and 13 of the Contempt of Courts Act (hereinafter referred to as 'the Act') against the contemner Shriram Sharma, a practising Advocate at Datia and President of the Bar Association, Datia, at the relevant time. The allegation against the contemner is that he approached the complainant in the matter of a bail application case of one Nawab Singh, being Criminal Miscellaneous Case No. 335/1981, that was pending for orders on 1-6-1981, and requested the complainant that the said Nawab Singh, resident of village Debhai, was his enemy, he (the contemner) had got him arrested by exerting his political influence and, therefore, the complainant should not order his release on bail. ( 3 ) ON the aforesaid complaint of the complainant, the instant case was registered and the contemner was noticed to file his defence. The contemner in his reply, while denying the allegations against him, inter alia, made various allegations attributing motive to the complainant, by which allegedly the complainant was actuated to make a false complaint against him. The contemner further alleged that the complainant made an interpolation in the order sheet dated 1-6-1981 of the said miscellaneous criminal case disposing of the bail application of the said Nawab Singh by recording therein the accusation that is made against him in the present complaint, though it is false. The contemner filed an affidavit in support of his reply and also requested to send for the record of the Collectorate, Datia, being Case No. 4-Q/st. R. (Judicial) 9/4/66/81, in support of his allegation about interpolation in the order sheet of the said miscellaneous criminal case. This Court on 23-11-1981 passed an order that since the allegations made against the contemner have been disputed by the contemner, an enquiry is necessary, and directed the District Judge, Datia (since the complainant was transferred from Datia) for making an enquiry and submitting his report with the findings on the allegations made against the contemner. This Court on 23-11-1981 passed an order that since the allegations made against the contemner have been disputed by the contemner, an enquiry is necessary, and directed the District Judge, Datia (since the complainant was transferred from Datia) for making an enquiry and submitting his report with the findings on the allegations made against the contemner. ( 4 ) IN compliance of the aforesaid order, of this Court, the District Judge, Datia submitted his report dated 5-3-1982, that in his view the contemner has succeeded in rebutting the allegations made against him by the complainant and, thus, the allegations against the contemner are not proved and are baseless. This enquiry by the District Judge was made in the absence of the complainant and no statement of the complainant was recorded. The District Judge making the enquiry has in paragraph 5 of his report given the reasons which impelled him to proceed with the enquiry in absence of the complainant and as to why the statement of the complainant could not be recorded. The relevant part of the conclusion in the report for proceeding with the enquiry in absence of the complainant is extracted hereinbelow : -"under these circumstances the enquiry was proceeded ex parte and it was fixed for hearing on 26-2-82. On 26-2-82 the witnesses produced by the contemner were examined, so also Shri H. D. Kotiya, the steno to the Sessions Judge. After this was done, a D. O. letter (copy enclosed) was received that day in which Shri Joshi requested for adjournment of the enquiry. As the Hon'ble High Court expected the enquiry to be completed within three months and, further, because the evidence was already taken, Shri Joshi could not begiven time further. In my view there was no impediment to come to Datia because it is not far off from Gwalior. Ultimately, I had to proceed with the enquiry in his absence. As Shri Joshi did not attend the enquiry his statement could not be recorded. But his complaint may be taken to be his statement subject to the simple objection that the contemner could have no opportunity to cross-examine him on the allegations made in the complaint. Ultimately, I had to proceed with the enquiry in his absence. As Shri Joshi did not attend the enquiry his statement could not be recorded. But his complaint may be taken to be his statement subject to the simple objection that the contemner could have no opportunity to cross-examine him on the allegations made in the complaint. Shri H. D. Kotiya, steno to the Sessions Judge, was examined as he, according to Shri Joshi, was present when the contemner visited Shri Joshi on 31-5-81 and had a talk with him regarding the bail matter of Nabab Singh. Shri Kotiya has specifically denied that the contemner visited Shri Joshi in the above connection and he has further denied that there was a talk between the contemner and Shri Joshi about the bail application of Nabab Singh in Cr. Misc. Case No. 335/81. His statement is that he knows Shri Ram Sharma who practises at Datia but he does not remember that he came to Shri Joshi on 31-5-81 or 1-6-81 in his presence. Thus Shri Kotiya does not support the complaint of Shri Joshi. Though there is nothing to indicate that he has suppressed anything, his statement should not be taken to be conclusive proof, for the simple reason that Shri Joshi has been transferred from Datia and the contemner is still practising here. Therefore, independent of his statement, it has to be considered how far the contemner has succeeded in refuting the allegations made against him by Shri Joshi. " ( 5 ) IT is after the above report that the application under consideration has been filed on behalf of the complainant. By this application, the complainant seeks the following relief:"in the above circumstances, I pray that enquiry may kindly be held afresh in accordance with High Court Rules framed for contempt proceedings and I be given opportunity to lead my evidence. I also request that copies of affidavits, if any, filed by Shri Ram Sharma or anybody on his behalf may kindly be supplied to me so that I may, if necessary, file counter-affidavits and thereafter the matter may kindly be finally disposed of. "an affidavit dated 23-9-1982 has also been filed in support of the above application by the complainant. ( 6 ) THE application has been opposed on behalf of the contemner and a counter-affidavit dated 30th September 1982 has also been filed. "an affidavit dated 23-9-1982 has also been filed in support of the above application by the complainant. ( 6 ) THE application has been opposed on behalf of the contemner and a counter-affidavit dated 30th September 1982 has also been filed. ( 7 ) IN the light of the arguments advanced, the reliefs prayed for in the application under consideration are grouped under the following three heads for the sake of convenience in dealing with them : - (I) The procedure adopted for recording evidence is in violation of S. 17 of the Act and, as such, the enquiry made and the report submitted by the District Judge, Datia, cannot be taken into account, and the evidence should be recorded by the Court itself. (II) As no reasonable opportunity was afforded to the complainant, the evidence recorded in his absence cannot be taken into account and, therefore, the enquiry made in his absence and the report submitted on that basis by the District Judge, Datia, should not be taken into account and fresh enquiry should be ordered to be made in his presence. OR (III) The complainant should be given an opportunity to cross-examine the witnesses, whose evidence has been recorded in his absence, to lead evidence in support of the complaint and also to file his affidavit in counter to the affidavit filed by the contemner in support of his reply. ( 8 ) WE shall deal with the rival arguments under the aforesaid heads ad seriatim. The argument of the learned counsel for the complainant was based on S. 17 (5) of the Act. His submission was that S. 17 lays down the procedure to be followed after taking cognizance by the Court, and the expression "after taking such further evidence as may be necessary, and pass such order as the justice of the case requires" goes to show in unequivocal terms that the evidence has to be recorded by the Court itself, i. e. , under the personal supervision of the Court. The Court cannot delegate the function of taking the evidence to anyone else. The order of the Court dated 23rd November 1981 directing the District Judge, Datia, to make an enquiry and report was, in fact, a delegation by the Court of its function to the District Judge, Datia, whereas such delegation, in terms, is prohibited by sub-sec. (5) of S. 17 of the Act. The order of the Court dated 23rd November 1981 directing the District Judge, Datia, to make an enquiry and report was, in fact, a delegation by the Court of its function to the District Judge, Datia, whereas such delegation, in terms, is prohibited by sub-sec. (5) of S. 17 of the Act. He submitted that when a specific procedure is provided by a statute the Court is not competent to act in violation of, or in derogation of that procedure. He also submitted that the order on the basis of the evidence has to be passed by the Court itself after applying its mind to the evidence and, as such, the report of the District Judge on the basis of evidence cannot be treated to be an order passed by this Court. ( 9 ) THE arguments in counter of the learned counsel for the contemner were twofold; (i) the contempt matter, it was argued though half-heartedly, is a matter between the Court and the contemner, and the complainant has no locus standi, after having moved the Court to participate in these proceedings and raise any objection even relating to the procedure adopted by the Court, and (ii) the stage contemplated in sub-sec. (5) of S. 17 for recording the evidence has not yet reached, and the enquiry directed to be made by the District Judge was only for the purposes of deciding whether it is a fit case for proceeding against the contemner, under the Act. ( 10 ) BEFORE we proceed to dwell upon the merits of the contention raised on behalf of the complainant, we would like to dispose of the objection with regard to the locus standi of the complainant in making the application under consideration. There can be no gainsaying 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. This power of the High Court to punish for contempt is to safeguard the dignity of Courts and to create an atmosphere in which Judges can dispense justice with equal hand and fearlessly perform functions which they are called upon to discharge. The institution and dropping of proceedings are not dependent on desire of individual who had made report of contempt. The institution and dropping of proceedings are not dependent on desire of individual who had made report of contempt. It is the duty of the High Court to see that no person indulges in scandalising any Court. From this it is true that it is a matter between the Court and the contemner, but this does not mean that if any fact or question of law having a bearing on the matter of contempt is brought to the notice of the Court by a person at whose instance or on whose motion the Court proceeded in the matter of contempt, the Court is debarred from hearing that person, specially in the facts and circumstances of this case. In the instant case, the contemner has in his defence, while denying the allegation made against him, inter alia, pleaded that in the order passed in Criminal Miscellaneous Case No. 335 of 1981, the complainant has made an interpolation to create an evidence in support of the allegation of contempt against him. This counter allegation by the contemner against the complainant is a serious one and, if found true, amounts to a criminal contempt under the Act, inasmuch as the conduct of the complainant offends the majesty of law, undermines the dignity of the Court and also abuses the process of the Court, calculated to detract from the confidence of the public in the administration of justice. In such a situation, it is more essential that the complainant should have a fair opportunity to prove the allegation and to defend the counter allegation made againsthim. This apart, the complainant is a material witness to prove the allegation made and, if on a further scrutiny it is found that he had, in fact, no opportunity, there is no understandable reason why his evidence should not be recorded. In this view of the matter, we are of the opinion that under the peculiar facts and circumstances of this case, the complainant has a right to make the application under consideration ( 11 ) WE now proceed to deal with the contentions enumerated in para 7 ad seriatim. Contention No. (i ). To appreciate the rival arguments advanced by the learned counsel it is advisable to extract herein-below S. 17 of the Act, so far relevant : -"17. Contention No. (i ). To appreciate the rival arguments advanced by the learned counsel it is advisable to extract herein-below S. 17 of the Act, so far relevant : -"17. Procedure after cognizance.- (1) to (4) (5) Any person charged with contempt under S. 15 may file an affidavit in support of his defence, and the Court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires. " the core of the argument of the learned counsel for the complainant was that, as the very head note of the section, extracted hereinabove, shows that it lays down the procedure to be adopted by the Court after taking cognizance in the matter of contempt of Court and sub-sec. (5) of S. 17 in that matter lays down the manner of taking evidence and that manner is as obtainable from the expression "after taking such further evidence", the Court itself should record the evidence and not delegate the function of recording the evidence to any other authority. He laid great stress on the word 'taking' and vehemently urged that 'taking' means taking by the Court itself and this affirmative word is absolute, explicit and imperative and includes in itself a negative, denying the delegation of power to any other authority of recording evidence and calling for a report on the evaluation of the evidence so recorded by the delegatee authority. The learned counsel for the complainant in support of his contention relied on a decision of the Supreme Court in Mangulal Chunilal v. Manilal Manganlal, AIR 1968 SC 822 and contended that their Lordships of the Supreme Court, while interpreting the word 'take', have held that this word cannot be interpreted to mean "cause to be taken", which goes to show that the affirmative expression "taking evidence" occurring in sub-sec. (5) of S. 17 of the Act tacitly lays down that the Court shall not delegate its power of recording evidence. (5) of S. 17 of the Act tacitly lays down that the Court shall not delegate its power of recording evidence. The learned counsel also placed reliance on M. P. S. R. T. Corporation v. Jahiram, 1969 Jab LJ 274 : (AIR 1969 Madh Pra 89) and Nazir Ahmad v. King Emperor, (AIR 1936 PC 253) to reinforce his argument that when a procedure is laid down it has to be strictly followed and there can be no deviation from it. The learned counsel also drew support from a decision in Muthu Karuppan Servai v. Vellayya Kudumban, AIR 1915 Mad 756 (1) for his contention that the report on the question whether the matter attributed to the contemner is proved from the evidence or not, cannot be acted upon. His submission was, S. 428 of the Code of Criminal Procedure, 1898, the corresponding section whereof in the new Code is 391, empowers the Court to take additional evidence but does not empower the appellate Court to call for a finding from the subordinate Court in the light of fresh evidence, and when the appellate Court calls for a fresh finding from the subordinate Court in exercise of its power under S. 428 of the old Code (S. 391 of the new Code), that act is illegal, as held in Muthu Karuppan Servai's case (supra ). On the analogy of this decision, his submission was that even assuming that this Court could delegate the function of making an enquiry, it could not certainly call for a finding on the basis of an enquiry by the delegatee authority. ( 12 ) WE propose to deal with the argument of the learned counsel for the complainant in two parts: (i) whether under S. 17 (5) of the Act it is imperative that the Court itself should record the evidence and cannot appoint any other authority to record the same, and (ii) whether no finding about the allegation attributed to the contemner on the basis of the evidence so recorded by the appointed authority can be called for and acted upon. ( 13 ) WE shall deal with the arguments in the aforesaid two parts ad seriatim. Ist Part. It is true that the rubric of S. 17 is procedure after cognizance which gives an indication that this section deals purely with procedure. But on reading its sub-sec. ( 13 ) WE shall deal with the arguments in the aforesaid two parts ad seriatim. Ist Part. It is true that the rubric of S. 17 is procedure after cognizance which gives an indication that this section deals purely with procedure. But on reading its sub-sec. (5), with which at present we are concerned, we find that it deals with the procedure as well as with the powers of the Court. "maxwell on Interpretation of Statutes". 11th Edn, at Pp. 48-49 has said : "the headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. " this passage from Maxwell has been quoted with approval by their Lordships of the Supreme Court in Bhinka v. Charan Singh, AIR 1959 SC 960 at p. 966. Therefore, in the light of this view about the effect of a heading while interpreting the section, it cannot be said that the said heading is be-all and end-all. The meaning obtainable from the plain language cannot be controlled by the heading. It cannot be gainsaid that contempt proceedings are judicial proceedings in or before the Court. The Indian Evidence Act applies to all judicial proceedings in or before a Court. S. 3 of the Evidence Act describes what evidence means and includes, but affidavits are not included within this description. On the contrary, affidavits have been expressly excluded by this section from the applicability to them. Therefore, affidavits cannot be used as evidence under any of the provisions of the Evidence Act to prove or disprove a particular fact. It is obvious that in this setting of the legal position, in the proceedings in or before the Court under the Act, an affidavit, unless specifically provided by a statute, cannot be used as evidence. The legislature has, therefore, in its wisdom under S. 17 (5) of the Act specifically empowered the Court to determine the matter of the charge either, on the affidavits filed or after taking such further evidence as may be necessary, and thus this sub-section deals with procedure as well as powers of the Court. But what is significant is that it has not provided any special mode for recording evidence. But what is significant is that it has not provided any special mode for recording evidence. ( 14 ) IN the backdrop of what we have just observed in the preceding paragraph, we proceed to examine the question whether the Court is competent or not to regulate its procedure for the matter of appointing a person to hear, receive and record the evidence from interested parties for the purpose of informing the Court of the evidence. 14. 01. It cannot be gainsaid that every Court has, inherent in its very constitution, all such powers as are necessary in the course of administration of justice in respect of proceedings before it. This is based on the principle embodied in the maxim quando lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest, which means that when the law gives a person anything, it gives him that, without which it cannot exist. Whenever anything is required to be done by law and it is found impossible to do that thing, not authorised in express terms, be also done, then that something else will be supplied by necessary intendment. 14. 02. 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. S. 2 of the 1926 Act, S. 3 of the 1952 Act and S. 10 of the Act do not conferany new jurisdiction on the High Court, but only recognise the initial inherent jurisdiction of a Court of Record, now sanctioned by Art. 215 of the Constitution. It has been held in Sukhdev Singh's case (supra) by the Supreme Court at page 190 (of AIR) :"we hold, therefore, that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. "the same view has been reiterated by the Supreme Court in Mrs. The High Court can deal with it summarily and adopt its own procedure. "the same view has been reiterated by the Supreme Court in Mrs. V. G. Peterson v. O. V. Forbes, AIR 1963 SC 692 , where it has been observed thus :"the High Court seems to think that the Chief Court could choose any procedure it liked in the matter of punishing people for contempt and so if it thought that it would not finally dispose of contempt proceedings without the alleged contemner being present before it, it had the inherent right of first issuing a warrant of arrest and next, if that was not successful, by proclamation for his appearance and also by attachment of his property. It seems to us that the Chief Court as a Court of Record had the right to punish persons for contempt and for the proper exercise of that power it will have all other powers necessary and incidental to it. "here it would be pertinent to extract S. 10 of the Act so far relevant: -"10. Power of High Court to punish contempts of subordinate Courts.- Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself: (Emphasis supplied ). Section 23 of the Act provides : "23. Power of Supreme Court and High Courts to make rules.- The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure. "14. 03. Rule 12 (c) of the Rules for proceedings framed under S. 23 of the Act by this Court reads thus : -"12. (a) to (b) (c) If such person refuses to plead or does not plead, or claims to be tried or the Court does not convict him on his plea of guilt, it may determine the matter of the charge either on the affidavits filed or after it taking such further evidence as it deems fit. " this Rule also employs the same terminology as employed in S. 17 (5) of the Act. " this Rule also employs the same terminology as employed in S. 17 (5) of the Act. Neither this rule provides the mode of recording evidence nor any other rule, except this rule, was brought to our notice providing for the mode of recording evidence. As a sequel to the discussion contained in this paragraph, paragraphs 14. 01 and 14. 02 above, it has to be held that this Court is competent to regulate its procedure and, therefore, this Court is competent to appoint a person to hear and receive evidence from interested parties for the purpose of informing it (the Court) of the evidence so collected, inasmuch as it is also one of the modes of taking evidence. In support of this view, we shall like to refer to the following decisions. (i) Jeffs v. New Zealand Dairy Production and Marketing Board, (1966) 3 All ER 863 at p. 870, wherein it has been said :"if a quasi-judicial authority is authorised to regulate its procedure, the authority may appoint a person to hear and receive evidence from interested parties for the purpose of informing the authority of the evidence and submissions, but its decision must be reached after consideration of the evidence and submissions so received and not merely on the report of the person appointed to collect them," (ii) Pradyat Kumar v. Hon'ble Chief Justice of Calcutta High Court, AIR 1956 SC 285 . "it is true that no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication. But the exercise of the power to appoint or dismiss an officer is the exercise not of judicial power but of an administrative power. It is nonetheless so, by reason of the fact that authority to show cause and an enquiry simulating judicial standards have to precede the exercise thereof. It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible andcompetent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power. A functionary who has to decide an administrative matter, such as the dismissal of a member of the staff, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party has a fair opportunity to correct or contradict any relevant prejudicial material. Where, therefore, charges are made against a member of the staff of the High Court, the Chief Justice is competent to delegate to another Judge the inquiry into the charges. " (Head-Note (b) ). 14. 04. Before we part with the above point, it is necessary to examine the validity of the interpretation placed by the learned counsel for the complainant that the expression "take such further evidence as may be necessary" negatives the power of the Court to delegate its function of receiving and recording evidence to some other person. In our view, the interpretation canvassed by the learned counsel in the context in which the word 'take' is used, is hyper-technical, does not stand to reason and, if adopted, leads to injustice. We propose to demonstrate this by the following illustration. A contempt matter is pending against M in Court X. In the matter of charge against M, Court X is of the opinion that a person Y, who resides at place Z, is a material witness. His evidence - not on affidavit, oral is necessary. The place Z where the; person Y resides is at a distance of 1000 miles from the Court X and is also out of its jurisdiction, and the person Y also for valid reason not willing to appear in the Court, or is unable to appear. In such a situation, if the interpretation canvassed by the learned counsel for the complainant is accepted, the Court cannot examine him on commission and, therefore, the Court has to decide the matter of charge without his evidence. The decision rendered without such material evidence is bound to result in injustice. Similar situation may arise, when a person who has deposed on affidavit and the Court permits cross-examination of that person on the deposition made by him on affidavit. The decision rendered without such material evidence is bound to result in injustice. Similar situation may arise, when a person who has deposed on affidavit and the Court permits cross-examination of that person on the deposition made by him on affidavit. We may here point out the observation of the Supreme Court in Madhav Rao Scindia v. Union of India, AIR 1971 SC 530 at p. 576 para. 133 : "there is always a presumption against the law maker intending injustice and unreason. "we would also quote with advantage what Lord Denning says in the matter of interpretation of Statutes. Lord Denning has said : "a Judge should not be a servant of the words used. He should not be a mere mechanic in the power house of semantics. " (Extracted from Bhimji Singh v. Union of India, AIR 1981 SC 234 ). "beyond doubt, the task of the lawyer - and of the Judge - is to find out the intention of Parliament. In doing this, you must, of course, start with the words used in the statute: but not end with them - as some people seem to think. You must discover the meaning of the words. ""whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and even if it were it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that or have been guilty of some or other ambiguity. It would certainly save the Judges' trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. It would certainly save the Judges' trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. That was clearly laid down by the resolution of the Judges in Heydon's case, and it is the safestguide today. Good practical advice on the subject was given about the same time by Plowden. . . . . . . . Put into homely metaphor it is this : A Judge should ask himself the question: If makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases," (Extracted from the Book "the Discipline of Law" by Lord Denning, Pp. 9 and 10 under the heading 'the Interpretation of Statutes'. ). 14. 05. In the light of the discussion contained in paragraph 14. 04, we are of the firm view that to advance the purpose and the intent for which the provision "taking such further evidence as may be necessary" is made, it has to be held that it implies within its ken the power of the Court to delegate the function of enquiry/recording evidence to any authority it deems fit, and it cannot be interpreted to mean that it denies or negatives the power of the Court to delegate its function of enquiry/recording evidence. ( 15 ) THE upshot of the forgoing discussion is that the first part of the contention No. 1 has to be repelled and is accordingly repelled, holding that this Court has the power to appoint any other authority for making an enquiry/recording evidence for informing this Court of the evidence. ( 15 ) THE upshot of the forgoing discussion is that the first part of the contention No. 1 has to be repelled and is accordingly repelled, holding that this Court has the power to appoint any other authority for making an enquiry/recording evidence for informing this Court of the evidence. Mangulal Chunnilal's case (1968 Cri LJ 979) (SC) (supra), which has been strongly relied on by the learned counsel for the complainant is distinguishable, and cannot be pressed into service to advance the contention raised in the instant case. There the expression 'take proceedings' was not in reference to the powers of the Court in the matter of procedure, to be adopted by the Court. In that case the point involved was about the power/competency of an officer to take legal proceedings in a Court of law. It was in that context that their Lordships held that the word 'take' in S. 481 (1) of the Code of Criminal Procedure cannot be interpreted to mean "cause to be taken" nor the expression 'take proceedings' to be interpreted to mean "order proceedings to be taken". In the instant case, the word 'taking' has been used in an altogether different context. Further, the other authorities relied on by the learned counsel for the complainant, viz. , 1969 JLJ 274 : (AIR 1969 Madh Pra 89) and AIR 1936 PC 253 (2) also do not advance his contention, as they are distinguishable, inasmuch as in those cases there was a prescribed procedure, whereas in the instant case, as we have already held hereinabove, there is no procedure/mode of recording evidence laid down in the Act or the Rules made thereunder. ( 16 ) WE now turn to second part of the contention. It is true that, as the words "and the Court may determine the matter of the charge" indicate it is for the Court to determine whether the charge is proved or not and that power to decide cannot be delegated to any other authority by the Court. In the instant case, the Court vide order dated 23-11-1981 directed the District Judge to make an enquiry and report; but that does not mean that this Court is bound by his report. Ultimately, it is the Court that has to decide the matter of the charge. In the instant case, the Court vide order dated 23-11-1981 directed the District Judge to make an enquiry and report; but that does not mean that this Court is bound by his report. Ultimately, it is the Court that has to decide the matter of the charge. Thus, as a matter of law, we hold that the ultimate responsibility of deciding the question whether the charge levelled against the contemner is proved or not, is on this Court. This adjudicatory function cannot be delegated by the Court and has not been delegated. Merely deputing a person to inquire and report cannot be taken to mean that the adjudicatory function, i. e. , of determining the charge, has been delegated to that official. This interpretation of the order is incorrect. The District Judge was deputed to inquire and report, but the decision was to be reached by this Court after consideration of the evidence and the submissions received, and not merely on the report of the District Judge, who was appointed to collect them. ( 17 ) WE now turn to the consideration of the question of entitlement of the complainant to the second relief. From the details as given in the application and set out hereinbelow, which is duly supported by an affidavit, it appears that there was no due service of notice on the complainant so as to afford him a reasonable opportunity of appearing before the District Judge, Datia and participating in the enquiry : -"petitioner was on leave and after leave came back and joined on 8-2-82. On his return petitioner came to know about a demi official letter No. 312 dated 4-2-82 of Shri R. C. Sharma, District Judge, Datia, intimating petitioner that 13-2-1982 is fixed for enquiry and I should produce before him my evidence. It may kindly be appreciated that within a short period of 5 days it was almost impracticable for me to go to Datia, collect witnesses and examine them before Shri Sharma. Hence on 10-2-1982 I wrote and despatched a demi-official letter. No. 17 to Shri Sharma making a request that sufficient time may be given to me for the aforesaid purpose and date may kindly be changed. In reply I received a letter from Shri Sharma No. 10 dated 15-2-1982 on 19-2-1982 at 4. Hence on 10-2-1982 I wrote and despatched a demi-official letter. No. 17 to Shri Sharma making a request that sufficient time may be given to me for the aforesaid purpose and date may kindly be changed. In reply I received a letter from Shri Sharma No. 10 dated 15-2-1982 on 19-2-1982 at 4. 00 p. m. My request for sufficient time was rejected and I was directed to appear before him on 19-2-1982 with all the evidence that I intend to produce. As I received the said letter on 19-2-1982 at 4 p. m. at last hour, it was impossible for me to appear before Shri Sharma on 19-2-1982 at Datia. I immediately wrote a D. O. to Shri Sharma intimating that his letter has reached me on 19-2-1982 at 4 p. m. I again requested for sufficient time. It appears that Shri Sharma again wrote a letter to me fixing 24-2-1982. This letter also reached me on 24-2-1982 at 4 p. m. As my wife was unwell and I was also not well, I requested Shri Sharma to give me a long date through demi-official letter No. 68 dated 26-2-1982. I also requested that I be given notice at least 10 or 15 days before date so that I may make necessary arrangements. It appears that Shri Sharma rejected my request and proceeded ex parte without informing me. "the counter-affidavit filed on behalf of the contemner does not lead us to believe that the above details given are in any way factually wrong. We are, therefore, satisfied, as already stated hereinabove, that the complainant had no reasonable opportunity to participate in the inquiry. ( 18 ) WE have already said above that there is in counter a serious allegation against the contemner, which, if proved, not only amounts to a charge of criminal offence but also to a counter-charge of contempt by the complainant. The stigma attached to the person found guilty of contempt and the punishment imposed on him are serious matter and, therefore, the Court must be wary and must punish the person only when the charge against him is conclusively proved and, therefore, in the matter of contempt of Court, the rules regarding evidence, which are applicable in criminal cases, should be applied. We are, therefore, of the opinion that on the facts and in the circumstances of the instant case, in the interest of justice evidence should be recorded in the presence of the complainant. In this view of the matter, we quash the enquiry and the report submitted by the District Judge in compliance with the order of this Court dated 23-11-1981 and, allowing this application, we direct the present District Judge, Datia (since the District Judge who had held the enquiry and made the report in question has now been transferred) to record the evidence and send the same to this Court within a period of one month from the date of receipt of this order. Order accordingly. .