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TMI Blog1953 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... of an offence". I shall not like in this case to consider the larger question whether the words "accused of" are restrictive and mean a person against whom proceeding in a criminal court for any offence committed by him has in fact been started. To similar provision in the Constitution of the United States though slightly differently worded, the American Courts have given a much wider meaning. Confining myself, therefore , to the word 'offence', (sic) the word has not been defined in the Constitution but Article 367 provides that unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution. The word 'offence' has been defined in the General Clauses Act (No. 10 of 1897) as meaning "any act or omission made punishable by any law for the time being in force'. I think the words "made punishable by any law for the time being in force" are important. In Article 13(3) of the Constitution "law" is defined as "including any Ordinance, order, bye-law, rule, regulation, notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India; it is enacted as follows." Section 2 is to the effect that: "Every person shall be liable to punishment under the Code and not otherwise for every act or omission contrary to the provisions thereof......" And Section 5 is to the effect that: "Nothing in this Act is intended to repeal, vary, suspend, or affect any of the provisions of the Statute 3 & 4, William IV, Chapter 85, or of any Act of Parliament passed after that Statute in anywise affecting the East India Company or the said territories, or the inhabitants thereof; or any of the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of Her Majesty ......or of any special or local law." A special or local law was thus saved by Section 5. (5) Coming to the definition of the word "offence", in the Penal Code, Section 40 of the Code provides that: "Except in the chapters and Sections mentioned in Clauses 2 and 3 of this Section, the word "offence" denotes a thing made punishable by this Code." Clause 2 mentions certain Sections of Chapter 4 and Chapter 5A and lays down that in this Section " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplaced by Section 5 of the new Code, which is as follows: "(1) All offences under the Indian Penal Code, shall be investigated, inquired into, tried and otherwise dealt with according to provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 11. Soon after the Penal Code became law the Letters Patent of various High Courts were drafted and the Letters Patent of this Court, Clause 23 is to the following effect: "And we do further ordain that all persons brought for trial before the said High Court of Judicature at Allahabad either in the exercise of its original jurisdiction or in the exercise of its jurisdiction as a Court of appeal reference or revision charged with any offence for which provision is made by Act No. 45 of 1860 called the "Indian Penal Code" or by any Act amending or excluding the said Act which may have been passed prior to the publication of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the Indian Penal Code or any special or local law and the rules of Common Law of England were excluded. 15. Personal law of the Hindus, Mohammedans or others relating to crimes is no longer enforceable by the Indian Courts, nor is it permissible to create any new offences by any custom howsoever well established. Questions relating to succession inheritance, marriage or caste or any religious usage or institution, however, have to be decided according to personal law, if there are no legislative enactments to the contrary and, if on those points personal law is silent, the rule for guidance of the Courts is to be the rule of justice, equity and good conscience. 16. That being the legal position that nothing can be treated as a crime unless made so under some statutory provision, the word "law" in the definition of the word "offence" in the General Clauses Act must mean statute law. In other words, the definition in the General Clauses Act, Section 3(37) that " 'offence' shall mean any act or omission made punishable by any law for the time being in force", means made punishable by the Penal Code or by a Statute passed by a competent l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Courts, as Courts of Record, do not derive their jurisdiction to punish for contempt of the lower courts or the High Courts from the Penal Code or the Criminal P. C., nor are the punishments by the High Courts under the Sections of the Penal Code. 19. The Contempt of Courts Act (Act ,12 of 1926), also to my mind, cannot be said to be the Jaw which makes contempt punishable. Some difference of opinion had arisen on the point whether the High Courts had power to punish for contempt of the lower courts, specially the subordinate criminal courts. The Calcutta High Court in 'Moti Lal Ghosh's case, (D)', had taken the view that the High Court had no such jurisdiction. The Madras High Court in the case Of 'K. Venkat Rao 12 Ind Cas 293 (Mad) (E), held that the High Court had jurisdiction. In the Bombay High Court in -- 'Emperor v. Balkrishna Govind Kulkarni AIR 1922 Bom 52(F) there was some difference of opinion between Sir Norman MacLeod, C. J. and Shah, J. In the Allahabad High Court in -- 'Hadi Husain v.Nasir Uddin Haider AIR1926All623 , it was held that the High Court had jurisdiction to take cognizance of cases of contempt of subordinate civil Courts but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out in this connection that although the powers of the High Courts in India established under the Letters Patent to exercise jurisdiction as Superior Courts of Record in punishing contempt of their authority or processes have never been doubted, it was a controversial point prior to the passing of the Contempt of Courts Act, 1926, as to whether the High Court could, like the Court of King's Bench in England, punish contempt of courts subordinate to it in exercise of its inherent jurisdiction. The doubt has been removed by Act 12 of 1926 which expressly declares the right of the High Court to protect subordinate courts against contempt. ......" So far as I can see, therefore, there is no statute law which makes contempt an offence and punishable as such. 23. The question then arises that if nothing can be an offence unless the law, i.e., statute law, makes it so, how is it that contempt, specially the contempt that is classed as criminal contempt, is punishable by the High Court as Courts of Record. 24. My learned brothers have pointed out that contempt has been divided into two broad heads of criminal contempt and civil contempt. In --'Moti Lal Ghosh's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g punishment. In 1952CriLJ832 ', Mukherjea, J. has said: "It is well known that the aim of the contempt proceeding is 'to deter men from offering any indignities to a court of justice' and an essential feature of the proceeding is the exercise of a summary power by the court itself in regard to the delinquent." To the same effect are the remarks of the Supreme Court in the case of -- 'Brahma Prakash v. State of Uttar Pradesh', : 1954CriLJ238: "It admits of no dispute that the summary jurisdiction exercised by superior Courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the Courts." In 'Ex parte Robinson (1873) 19 Wal 505 (J), Field J. said: "The power to punish for contempt is inherent in all Courts. Its existence is essential to the preservation of order in judicial proceedings and to the enforcement of the judgments, orders and writs of Courts, and consequently to the due administration of justice." In 'Cartwright's case (1873) 114 Mad 238 (K), Gray, C. J. observed: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to the case of contempt punishable by the High court, as a Court of Record, in all cases of criminal contempt the summary procedure adopted by the Court, as far as possible, be such that it should not militate against the rules of natural justice. In such cases, to my mind, the burden must be put entirely on the prosecution to prove its case, as was done by Jenkins, C. J., in 'Moti Lal Ghosh's case, (D)' and if it has not been proved by the prosecution that contempt was committed by the contemner, he should get the benefit of such a finding. It is open to the contemner to leave it to the prosecution to prove its case, but where a contemner enters into a defence and files an affidavit, or a document on which he wants to rely, or goes into the witness-box, he cannot object to his being subjected to cross-examination. 27. On a careful consideration I am of the opinion, in agreement with my learned brothers, that a contemner being tried by the High Court under its inherent jurisdiction, as a Court of Record, is not a person accused of an offence within the meaning of Article 20(3) of the Constitution. 28. The only other question that remains to be answered is the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that he was guilty of contempt. The other opposite party also filed an affidavit on the same day. The Government Advocate informed the court that he desired to cross-examine opposite party No. 1 on the affidavit sworn by him and the case was adjourned to 16-5-50. On 16-5-50 the opposite party challenged the right of the Government Advocate to cross-examine him. He relied upon a decision of this court in -- 'Emperor v. Benjamin Guy Homiman AIR1945All1 . 'The learned Judges hearing the matter doubted the correctness of that decision and referred the questions to us. 31. Section 5(2), Criminal P. C. runs as follows: "All offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences". 32. "Offence" is defined in Section 4(o) of the Code to mean "any act or omission made punishable by any law for the time being in force". It was argued on behalf of the opposite party that contempt of court is an act made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made it a court of record and conferred upon it all the powers of such a court including the power to punish for contempt of itself. With the establishment of new High Courts the Contempt of Courts Act of 1926 became obsolete and in 1952 another Contempt of Courts Act, Act No. 32 of 1952, was enacted. That is the Act now in force. Section 3 of it provides that a High Court can punish contempts of subordinate courts "in accordance with the same procedure and practice...... as it has and exercises in respect of contempts of itself". Section 4 provides that contempt of a High Court or of a subordinate court can be punished with imprisonment extending up to six months and fine extending up to two thousand rupees. 33. In the well-known case, -- 'R. v. Almon (1765) Wilm 243 (M), Wilmot, J. said: "The power which the Courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court, acted in the face of it. And the issuing of attachments by the Supreme Courts of Justice in Westmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court in a summary manner by fine or imprisonment or both and that the High Courts in India being superior courts of record, have the same power by virtue of the Common Law of England. The High Courts in India have powers of superintendence over subordinate courts and these powers include the power to punish for contempts of subordinate courts. Thus a High Court derives the power to punish for contempts of courts from its own existence or creation; it is not a power conferred upon it by any law. The Act of 1928 merely recognised the existence in every High Court of the power to punish for contempts of subordinate courts. The Clayton Act prescribed a special procedure and punishment for trial of contempts, consisting of wilful disobedience of a lawful writ, process, order, rule, decree or command of any district Court of the United states or of any court of the District of Columbia, if the acts of contempt were also liable to be punished as criminal offences. Mr. Justice McReynolds said as regards the Act in -- 'Myers v. u. S. (1923) 68 L Ed 577 (P): "To disobey a judicial order is not declared criminal by the Clayton Act, it recognizes that such disobedience may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusive power to define and' determine what amounts to contempt. Though the words used in Section 2 were "shall have and exercise", it did not confer powers upon a High Court but simply recognised their existence. Some High Courts were exercising those powers, but others thought that they did not have them and Section 2 confirmed that they had them. Section 3 by itself did not make contempt punishable; it assumed that it was punishable and only fixed limits to the punishment that could be imposed. The word used, was "may" and not "shall". Had the legislature made contempt punishable for the first time by enacting that Section, it would have used the word "shall", as it has used in punitive Sections of the Penal Code. Its object behind its enactment was expressly to limit the powers exercisable by a High Court in punishing contempts of courts. If the real nature of the power to punish for contempts is understood, there should be no difficulty in understanding that the Acts did not by themselves make contempts punishable. As the power is inherent and incidental and as it is within the exclusive jurisdiction of courts of record to decide wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the Code and that no warrant of arrest could be issued against him by this Court to the police of Bombay. The challenge was upheld by the High Court of Bombay. Beaumont, C. J. relying upon the case of --'Surendra Nath Banerjee (B)', held that contempt of Court is not an offence which is dealt with by any law within the meaning of Section 5(2) of the Code. The learned Chief Justice, with the concurrence of Sen, J., discharged the bail bonds executed by B. G. Horniman. When the matter of the discharge of the bail bonds was put up before a Bench of this Court, it disagreed with the decision of the learned Chief Justice of Bombay, said that contempt of the High Court is an act punishable under a law for the time being in force and that since the passing of the Contempt of Courts Act, 1926, the decision in -- 'Surendra Nath Banerjee's case (B)', was no longer in force The learned Judges did not explain what happened to the inherent powers which this Court had at the time of the passing of the Act in 1926 and why in spite of their existence, statutory provision was made for the exercise of those powers, They remarked on page 4 that the offence of contempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Almon, (M)', that contempt of court "calls out for a more rapid & immediate redress than any other obstruction whatsoever". It is said in 'Corpus Juris', Corpus Juris Secundum, Vol. 17, p. 72' that the procedure in contempt proceedings is governed by Common Law rules & is not restricted to the procedure prescribed by the criminal law. The learned Judges themselves did not say that they were bound to follow the procedure laid down in the Code. If the proceedings for contempts of courts are not governed by the Code, it necessarily follows that Section 5(2) of the Code is not applicable and that contempt of court is not an offence within the meaning of the Code. Collister, J. remarked on page 4 that contempt was not defined in the Act just as insult is not defined in Section 228, Penal Code. But while Section 228 expressly makes the act of offering any insult punishable, when it was not punishable previously, there was nothing in the Contempt of Courts Act to make the act of contemning courts punishable for the first time. I have already said that contempt was not defined in the Act because the Act did not purport to make contempt punishable and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empt as an offence, holding a person guilty of contempt as convicting him and punishment for contempt as a sentence. The Supreme Court of United States denies to itself the jurisdiction to entertain an appeal from an order of commitment for contempt on the ground that the order is one in a criminal matter; in -- 'City of New Orleans v. The N. Y. M. Property Co. (1874) 87 US 387 (W) it is stated that contempt of court is a specific offence and that imposition of fine for contempt of court is a judgment in a criminal case. Brewer, J. observed in the case 'Bessette' at p.1001 (O): "A contempt proceeding is sui generia. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty is punished." 41. He quoted with approval the following from the opinion of sanborn J. in 're Nevitt 54 C. C. A.622 (X); "Proceedings for contempts are of two classes, -- those prosecuted to preserve the power, and vindicate the dignity, of the courts, and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstood in our Constitution. The provision in Article 20(3) is differently worded from that in the Fifth Amendment. Therefore, the dictum in -- 'Gompers v. Buck's Stone and Range Co. (1910) 55 L Ed 797 (Zl) that a contemner may not be compelled to be a witness against himself cannot be applied in India. 42. Contempts are divided, into civil and criminal contempts, but it does not follow that they are to be dealt with differently in every respect and that the proceedings in one are governed by Civil P. C. and those in the other, by Criminal P. C. The division of contempts into two classes is for particular purposes only. For example, there is a right of appeal or review from an order passed in a civil contempt while an order passed in a criminal contempt is held to be final. This was made clear in the case of 'Bessette, (O)'. The Crown has the power to grant pardon or not according as the contempt is criminal or civil; vide Oswald's Contempt, p. 4. The rule of benefit of doubt prevails in a criminal contempt, but not in a civil contempt. In some cases it is laid down that the sworn answer of the accused fully denying the alleged contempt is conclusive in a cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst entry in the witness box, he evidently referred to the case of an ordinary witness and not to that of an accused entering the witness box on behalf of himself or a co-accused. It is said by Willoughby on the Constitution of the United States, Vol. 2, p. 1165, that if an answer would tend merely to disgrace but not to incriminate the witness, the privilege does not apply, and that if, however, the answer is one which can have no bearing upon the case except to impair the credibility of the witness, he may refuse to answer. Therefore, if the opposite party were "accused of an offence", he could refuse to be sworn altogether (provided he had not waived the privilege). 44. The privilege against self-crimination can be waived. "It is well established that a witness having voluntarily taken the stand, may be compelled to disclose the whole facts regarding the matters concerning which he has testified;" (Willoughby on page 1166). "It has never been doubted that the privilege like all privileges, is in itself waivable". (Wigmore, Vol. 8, p. 435). An ordinary witness waives the privilege by exercising his option of answering. "The case of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence which if there is no cross-examination makes in his favour, but which he knows will break down on cross-examination, and then to withdraw it if he finds that cross-examination is threatened." He said that it was a principle applicable to proceedings before every tribunal. 47. In -- 'Clarke v. Law (1855) 2 KA J 28 (Z3) Sir W. Page Wood V. C. said: "When a party gives notice that he intends to use at the hearing an affidavit made by him, he is both a party and witness. If he had filed a new affidavit, he could not say that he would not use it. He had propounded himself as a witness, and cannot be allowed, if not cross-examined, to use his affidavit, but if threatened with cross-examination to withdraw it; having tendered himself as a witness, he is bound to submit to cross-examination." Here the opposite party had clearly used the affidavit made by him. Therefore he could not say that he was withdrawing it and should not be examined. My answer to the third question is as follows: "No. He can be cross-examined on the affidavit voluntarily made by him." 48. Section 5, Oaths Act requires oath to be administered to all witnesses i.e., all p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit, be cross-examined on it." The opposite parties, it appears, filed an affidavit in these proceedings in support of their case. The Government Advocate wished to cross-examine the opposite parties in respect of that affidavit a right which he possessed under the general law. On behalf of the opposite parties objection was taken to their being put on their oath and thereafter subjected to cross-examination. The question, therefore, that arose was whether the opposite parties were justified in law in taking the stand that they did in regard, to the right which was asserted, of cross-examination, by counsel on behalf of the State. The true answer to the question depends on the answers which are to be returned to the questions which were formulated by the Bench hearing the petition and which questions I have already quoted in full above. 51. The proceedings which have given rise to this reference to the Full Bench were proceedings in contempt. The contempt jurisdiction or the jurisdiction of the High Court to punish contemners has an ancient history. This court exercised this jurisdiction upto 1950 by virtue of its being a Court of record; there was no statute or any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense in which a breaker of the law is looked upon, but he was looked upon as an offender who stood more or less in a class by himself. In England, from where courts in India borrowed the entire law of contempt, contempt was divided into two classes. One class was given the denomination of criminal contempt while another class of contempt was designated civil contempt. This is also indicative of the fact that contempt was not treated as an offence within the meaning of the criminal law. 55. The first question which has been referred to us is concerned with an answer as to whether contempt of court is an offence within the meaning of Section 5(2), Criminal P. C. Section 5(2) of the Code provides for the trial of offences against other laws. If contempt can truly be said to fall within the definition of the word "offence" in the Code then it would be difficult to say that the trial of a contemner for contempt would not have to be carried out in accordance with the procedure laid down by Criminal P. C., but if "contempt" does not come within the definition of the word "offence" as provided for by Section 4(1)(o), Criminal P. C. then obviously Section 5(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial of certain cases of contempt and these cases, it would be noticed by a reading of the Section, are cases of those contempts which fall within the ambit of Sections 175, 178, 179, 180 and 228, Penal Code. Sections 481 and 482 are analogous and complementary provisions to Section 480, Criminal P. C. The fact that the Penal Code makes certain types of contempts offences and that Criminal P. C. prescribed a procedure for the trial of these offences, a procedure which is different from the procedure which has to be followed for the trial of other offences covered by Penal Code, is clearly indicative of the fact that the framers of the Codes wished to make statute law in regard to only certain types of contempts and they did not consider it desirable to cover the entire field. 58. It may be appropriate also to notice at this stage that there is a type of contempt which is provided for by Civil P. C., namely, by Order 39, Rule 2(3), where provision has been made for punishing a person disobeying an injunction granted by a court. 59. In 1914 a bill was introduced in the Indian Legislative Council, as it then was, with the object of increasing the categories or classes of conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contempt proceedings not falling under Sections 175, 178, 179, 180 and 228, Penal Code. If, on the other hand, the meaning of law is wide enough to include laws, other than statute law, then under the provisions of Section 1(2) the reference to the form of procedure prescribed by "any other law" cannot also be confined to statute law and would embrace the procedure which has been followed by the courts dealing with certain classes of contempts, a procedure which is now well established by practice, and some of which are laid down in the rules of the Court. 63. The jurisdiction under which this Court acts when it punishes a contemner is a "special jurisdiction" which has been 'conferred on it or is inherent in it as a Court of record, and the procedure which the Court has followed and follows is a "special procedure" within the meaning of Section 1(2), Criminal P. C. In my view, therefore, contempt of court is neither an offence within the meaning of Section 5(2), Criminal P. C., nor is the procedure prescribed by the Code in regard to investigation, inquiry and trial of an offence applicable to proceedings initiated against a contemner by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re we can exclude from operation only those portions of the Code which are positively repugnant to existing procedure and, as at present advised, I see no reason for thinking that it was ever illegal for this Court to seek the assistance of the appropriate officers of the Crown for the purpose of attaching the person of the offender and that the provisions of the Code for the issue of warrants of arrest are not inapplicable." 64. From the aforequoted words of Allsop, J. it is clear to me that he was attempting to reconcile two conflicting positions, namely, the position where it is held that contempt is not an offence within the meaning of Criminal P, C. and the position where it is so held. The learned Judge felt the necessity for doing so because in his view the provisions contained in Criminal P. C. for the trial of offences did not in their entirety apply to proceedings taken by the High Courts for the trial and punishments of "contempts". Collister, J. however, took the view that contempt of the High Court was an act made punishable under a law for the time being in force within the meaning of Section 4(o), Criminal P. C. He expressed the opinion that the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the negative. 68. The second question, namely, whether the contemner is an accused person within the meaning of Section 5, Oaths Act, 1873, need not, in my view, detain us long. The words of Section 5, Oaths Act with which we are concerned are these: "Nothing herein contained shall render it lawful to administer in a criminal proceeding an oath or affirmation to the accused person......" 69. It has already been indicated earlier that a contemner is not in the same position as an accused person. An accused person within the meaning of Section 5, Oaths Act must be one who is accused of having committed an offence as defined in the General Clauses Act. It has also been noticed earlier that an offence which a contemner commits does not fall within that definition. The words of Section 5 do not create a prohibition against administering an oath either to an accused person or to a contemner. All it says is that the Oaths Act was not to be treated as an authority for administering to an accused person an oath. We know that under the Prevention of Corruption Act, (Act 2 of 1947), an accused person can take the oath and be a witness in his own favour so that there is no inh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he had filed in this case. There is, in the words of Article 20(3),' no prohibition against a person, who is accused of an offence, being cross-examined in case he has chosen to enter the witness-box and take the oath. The right to cross-examine a person arises under the Evidence Act. The testimony that a man gives, can only be taken into account if that testimony has been tested by cross-examination, at any rate, if there was an opportunity to the other side to test the truth or otherwise of the statement by cross-examination. 75. The word "offence" in Article 20 of the Constitution must, in my judgment, mean the violation of a law in force. That it is so is indicated by the use of these very words in Article 20(1) of the Constitution. The expression "law in force" has not been defined in the Constitution for all purposes of the Constitution though it has been so defined for the purpose of Article 13 of the Constitution in Article 13(3)(b). If it were permissible to take the meaning of the words "laws in force" as given in Article 13(3)(b) into account in order to find out the meaning of similar words used in Article 20 then it would appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked for. It is not limited to a defendant at bar or to party defendants. Furthermore the constitutional privilege applies as well to testimony or other evidence called for in civil proceedings as in criminal actions. It applies alike to civil and criminal proceedings, whenever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant." This statement of the law Willoughby appears to have got from the decision in -- Brown v. Walker. (Z4)', referred to above. According to the American view, however, this guarantee is a "personal privilege" and it may be waived so that if the accused voluntarily takes the witness stand in his own behalf he subjects himself to the same rule regarding cross-examination as any other witness. This is clear from the decision in -- 'Rafiel v. United States (1925) 271 U. S 494 (Z5). 78. I would, therefore, answer the third question also in the negative. BY THE COURT 79. Our answer to the questions referred to us for opinion is as follows: "(1) (a) Contempt of court is not an offence within the meaning of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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