1. The petitioner in this case is a Muktear practising in the Criminal and Revenue Courts in Pabna. He had been convicted of contempt of Court by the Sub-Divisional Magistrate of Pabna and under Section 228, Indian Penal Code sentenced to pay a fine of 50 rupees This conviction was upheld on appeal by the Sessions Judge of Pabna.
2. This Rule was granted on the ground that the order passed by the Magistrate was illegal and without jurisdiction inasmuch as the petitioner was not called on to make a statement and no statement was, as a matter of fact, recorded as required by Section 481, Criminal Procedure Code. In dealing with this point the learned Sessious Judge remarked in his judgment that:
The fundamental principle of criminal jurisprudence that a man must be heard before he is condemned has no application in such cases where special procedure has been provided by excess law.
3. With this expression of law we are in entire disagreement., The point has been considered by the Judicial Committee of the Privy Council in the case of In re Edwara Hutchinson Pollard (1868) 2 P.C. 106 : 5 Moo. P.C. (N.S.) 111 : 16 E.R. 475 Their Lordships stated that in their judgment no person can be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity given him of answering. This case was decided in 1863, and the same principle was affirmed by their Lordships of the Judicial Committee in a more recent case of Chan Hang Kiu v. Supreme Cowl of Hong Kong 4 Ind.Cas. 539 : 13 C.W.N. 685 : 6 M.L.T. 9 : 19 M.L.J. 324 : 41 Cr. L.J. 277 (P.C.) We are unable to accept the contention of the learned Vakil who shows cause against the Rule that the words 'if any in Section 481, Criminal Procedure Code, show that in the special procedure pro vided by this section an exception to this: general rule is provided. All that the expression 'if any' indicates is that the Court cannot compel the accused to make a statement, but it cannot mean that he should not give him an opportunity to make a statement. We hold that this defect in the procedure was fatal to the conviction, and we must, therefore, set it aside.
4. Before leaving this case, we think, we should express our opinion that we are in agreement with the learned Sessions Judge that the conduct of the petitioner was unjustified and reprehensible. We think it sufficient, having regard to the facts of the case to confine ourselves to this expression of opinion and it is not necessary to direct any further proceedings to be taken against him in the matter. We make this Rule absolute and set aside the conviction and sentence passed on the petitioner and direct that the line, if paid, be refunded.