CHHOTAN PRASAD SINGH & ORS. versus HARI DUSADH & ORS.

CHHOTAN PRASAD SINGH & ORS.

HARi DUSADH & ORS.

November 24, 1976

[P. N. BHAGWATJ, A. C. GUPTA AND P. N. SHINGHAL, JJ.]

Oaths .Act 1~7~-Section 4--General Clauses Act 1897, sec. 3(3)-Meaning ·of affidavzt-C!·zmmal. Procedure Code 1898-Section 145(1), whether a!fidai•its before Magistrate in 145 (l) proceedrngs must be sworn before any other authority empowered to administer oath.

Proceedings under section 145(1) of the Criminal Procedure Code 1898 were going on between the parties. The appellants filed affidavits before the !Magi~t!ate. The said affidavits were not swo~n before the 1\1agistrate who was m se1sm of the case but were sworn before some other Magistrate. It was con· tended before the Magistrate by the respondents that the said affidavits were not admissible in evidence. The.High Court held those affidavits to be inadmissible.

Dismissing the appeal by. specia·l leave,

HELD : ( l) In the absence of any specific prov1s10n to the contrary in the Criminal Procedure Code the affidavits have to be sworn or affirmed in ac-cordance with the provisions of the Oaths Act, 1873. Section 145(1) of the Code provides that the Magistrate making an order under it shall require the pa,rties concerned in the dispute to attend his court in person or by pleader and to put in such documents or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of their claim. The affidavits con-templated by the sub-section are. therefore, evidence for purposes of proceedings before the Magistrate concerned even though the Evidence Act does not apply to them. [175G-H]

(2) There is no provision in the Code specifying the courts before whom the affidavits referred to in section 145 have to be sworn and affirmed. The definition of affidavit in section 3 (3) of the Genernl Clauses Act 1897 only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. Section 4 of the Oaths Act reads a;; under :

"4. The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law :-

(a) all Courts and persons having by Jaw or cons~nt of p;;rties authority to receive evidence;"

It is clear that all Courts. and persons having by law or consent of parties authority to receive evidence are authorised to administer oaths and affirmations. but they can do so only where they are otherwise acting in the discharge of the dnties or in exercise of the powers imposed or conferred upon them res-pectively by law. In the present~ case the ~1agistr.ate concern~d ~ith the pro· ceedings under s. 145 of the Cooe was d1schargmg the duties imposed a11d exercising the powers conferred by the Code and he a.Jone could aJminister the oaths and affirmations to the persons who made affidavits and not Magistrates who were not discharging any such duty or exercising any such power. [176A-H]

Nandlal Chose v. Emperor AIR 1944 Cal. 283. Hemdan v. State of Rajasthan & Ors., AIR 1966 Raj. 5; Gol'ind v . .9tate and others AIR 1969 All. 405; Krishna Chandra Naik v. Sk. Makbul and others AIR 1970 Orissa 309; Mahesh Tlwkur and others v. Lakshman Prasad Thakur and anOlher (1971) 19 Bihar Law Journal 727 and State of Madhya Pradesh v. Trivedi Prasa.d (1971) XVI H.R. Law Journal 1059 approved.

Ahmad Din v. Abdul Stdem AIR 1966 Pb.· 528 and Shambhu Nath Choprll v. State AIR 1970 Delhi 210, over-ruled.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 316 of 1971.

(Appeal by Special Leave from the Judgment and Order dated the 17tlt September, 1971 of the Patna High Court in Criminal Revision No. 1488 of 19.71) and

Criminal Appeal No. 3l7 of 1971.

(Appeal by Special Leave from the Judgment and Order dated the 7th October, 1971 of the Patna· High Court in Criminal Revision No. 1491 of 1971.) ·

D. Goburdhan and D. P. Sharma for the appellants in both the appeals.

S. C. Agrawala and V. J. Francis for respondents in both the appeals.

The Judgment of the Court was delivered by

SHINGHAL, J.-The point for consideration in these appeals . by special leave is whether affidavits sworn or affirmed before magistrates who are not in seisin of the case under section 145 of the Code of Criminal Procedure, hereinafter referred to as the Code, could be read in evidence under that section ? The High Court has held such affidavits to be inadmissible in evidence, in its impugned judgments dated September 17, 1971 and October 7, 1971, and that is why the present appeals by special leave have arisen at the instance of the aggrieved parties.

It is not in controversy that in the absence of any specific provision to the contrary in the Code, the affidavits have to be Sworn or affirmed in accordance with the provisions of the Oaths Act, 1873. It is also· not in controversy that the Oaths Act of 1969 has no· application to the controversy.

Sub-section ( 1) of section 145 of the Code provides, inter alia, that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such documents, or to adduce, "by putting in affidavits, the evidence of such persons" as they rely upon in support of their claims. The affidavits contemplated by the sub-section are therefore evidence for purposes of the proceedings before the Magistrate con- · cerned even th~ugh the Evidence Act does not apply to them by virtue of the express provision of section 1 of that Act.

Chapter XL VI of the Code deals with miscellaneous matters inclu-ding the ~.ffidavits referred to in sections 539, 539-A and 539-AA. Section 539 deals with courts and persons before whom affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed. Section 539-A relates to

affidavits in proof of conduct of public servants, while section 539"AA relates to the authorities before whom affidavits to be used under section 510A or 539-A may be sworn or affirmed. An affidavit under section 145 is not however of formal character because it is meant to prove or disprove the ~ompeting claim of the parties as respects the fact of actual possession of the subject or dispute. There is thus no provision in the Code specifying the courts or persons before whom the affidavits referred to in section 145 have to be sworn and affirmed. This has. therefore to be done according to the general provisions relating to affidavits.

The definition of "affidavit" in section 3 ( 3) of the General Clauses Act (Act X of 1897) only states that it shall include affir-mation and declaration. in the case of persons by law allowed to affirm or declare instead of swearing. But it is an essential character-istic of an affidavit that it should be made on oath or affirmation before person having authority to administer the oath or affirmation It is here that section 4 of the Oaths Act comes into operation which provides as follows.-" 4. The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of. the duties or in exercise of the powers imposed or conferred upon them respectively by law:-·

(a) all Courts and persons having by law or consent of parties authority to receive evidence;"

Then follow clause (b) and proviso, with which we are not con-cerned.

It is th~refore clear that all courts and persons having- by law or consent of partie~ authority to receive evidence are authorised to administer oaths and affirmations, but they can do so only where they are otherwise acting " in the discharge of the duties~r in exer-cise of the powers imposed or conferred upon them respectively by law." So the court or person mentioned in clause (a) of section 4 of the Oaths Act can administer oath or affirmation to the deponent in an affidavit only if the court or person in acting in the "discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." Iii. the presel)-t cases, the Magi_strates . concerned with the proceeding under section 145 of the Code were dicharging the duties imposed and exercising the powers conferrei:l by the Code, and they alone could administer the oaths and affirmations to the persons who made the affidavits, and not the magistrates who were not discharging any such duty or exercising any such p_ower. As the affidavits in the cases before us were admittedly not sworn or affirmed before Magistrates who were dealing with the disputes under section 145 of the Code, they were not proper affidavits and did not constitute evidence for purpose of section 145. similar view

has been taken in Nandlal Ghose v. Emperor('), Hemdan v. State of Rajasthan and others(2), Govind v. State and others([3]), Krishna Chandra Naik v. Sk. Ma/,bul and others("') M.ahesh Thakur and others v. Lakshman Prasad Thakur and another([5]) and State of Madhya Pradesh v. Triveni Prasad(n) on which reliance has been placed by counsel for the re11pondents.

We have gone through Ahmad Din v. Abdul Selem,(') which has been cited with approval in Shambhu Nath Chopra v. State, ([8]) on which reliance has been placed by counsel for the appellants. We find however that in Ahmad Din's case (supra) the Punjab High Court did not take proper notice of the requirement of section 4 of the Oaths Act that the courts and persons mentioned in clause (a) could admin-ister oaths only "in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." We have also e'l.amined the reasoning in Shambhu Nath Chopra's case (supra), but the Delhi High Court there went wrong in holding that the evidence on affidavits referred to in section 145 of the Code was of formal character within the meaning of section 510A so as to attract section 539-AA.

At the High Court has rightly held in the two impugned judgments that the affidavits were inadmissible in evidence as they were sworn before Magistrates who were never in seisin of the case we find no force in these appeals and they are hereby dismissed. '

Appeals dismissed.

(1) A.LR. 1944 Cul. 283. (2) A.LR. 1966 Raj. 5.

(3) A.I.R. 1969 All. 405. (4) A.l.R. 1970 Orissa 209.

(5) (1971) 19 Bihar, Law Journal 727. (6) (1971] XVI M.P.[ • J, 105oi

(7) A.LR. 1966 Pb. 528. (8) A.T.R. 1970 Delhi 210. IJ-1458SCI/77