DESAI J.:- I agree with my brother Chowdhry that the Deputy Superintendent of Police is guilty of contempt of the Courts of the Judicial Magistrate and the District Magistrate, Fatehpur. Since it is a serious matter to find a Deputy Superintendent of Police guilty of contempt of Court, I would like to give my reasons for doing so. It is not necessary to repeat the facts which have been stated by my learned brother in his judgment.

2. The case against the opposite party (I am for the present dealing with the case against the Deputy Superintendent alone) is contained in the affidavit filed by Sheoraj in this Court on the basis of which these proceedings have been initiated. When the opposite party appeared in Court in response to the notice, it was brought to our notice by Sri P.C. Chaturvedi, who had filed the application for contempt proceedings, that Sheoraj had been won over by the opposite party and did not appear to give him further instructions.

We summoned Sheoraj to appear personally and recorded his statement on oath. He disowned the application for contempt proceedings and the affidavit said to have been sworn by him in support of it. He also denied that the opposite party or anyone else ever threatened him or forced him to withdraw the complaint filed by him, or that he ever kept him in wrongful confinement.

If his statement made in Court is believed, it would mean that the opposite party has not committed any contempt. Since all the evidence against the opposite party is contained in the affidavit sworn by Sheoraj and Sheorajs own deposition in Court is a complete retraction, it was contended, and contended most vehemently, by Shri S.S. Dhawan that there is no evidence on the basis of which the opposite party can be adjudged guilty of contempt of Court.

He made it clear that he did not contend that the affidavit should be disbelieved because it is counter-balanced by the counter-affidavit filed by the opposite party; his contention is that while the affidavit was sufficient for the initiation of proceedings against the opposite party, it is not sufficient for finding him guilty of contempt.

He treats the affidavit as if it were a plaint verified on oath; unless a plaint verified on oath is filed in Court, no summons would issue to the defendant; but once a summons is issued and the defendant appears in Court and files a written statement, verified on oath, denying the allegations in the plaint, the plaint cannot be treated as evidence and the suit cannot be decreed merely on its basis.

If the suit is to be decreed, there must be evidence produced in Court in accordance with the provisions of the Evidence Act. So it was argued that the affidavit in support of the application cannot take the place of evidence. If the allegations made in the affidavit were not denied by the opposite party in his counter-affidavit, he might have been liable to be found guilty of contempt on the basis of the affidavit.

But here the allegations have been denied in the counter-affidavit and, therefore, it was argued, there must be evidence produced under the Evidence Act before the opposite party can be held guilty. Reference was made to S.1, Evidence Act, laying down that the Act"applies to all judicial proceedings in or before any Court, including Courts martial......but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator."

It was contended that the present proceedings are judicial proceedings governed by the Evidence Act, and that under the Evidence Act there must be evidence to justify a finding of guilt. The Evidence Act does not make affidavits evidence. It was also contended that nobody can be convicted on the basis of an affidavit which is nothing but an ex parte evidence, and that to convict a person on the basis of an affidavit would be against the procedure established by law and infringement of Art.21 of the Constitution. I have no hesitation in repelling the contentions of Sri S.S. Dh