J JAIKUMAR MAJOR Vs. YOGESH LEMICHWAL MAJOR

JUDGEMENT

(1.) THIS matter is posted for orders on office objection regarding the requirement of filing affidavit in support of the interim application in criminal revision petition filed in the High Court as required under Rule 2 of Chapter X of the Karnataka High Court Rules, 1959 (hereinafter called the Rules ).

(2.) LEARNED counsel for the petitioner submits that the objection raised by the office is not maintainable as the petitioner being an accused, he cannot be compelled to swear. In view of the provisions of the Oaths Act, 1969 (hereinafter called the Act), no oath can be administered to the accused and as such there is a clear bar for filing of affidavit in criminal matters. As similar type of objection has been raised in many of the criminal cases and the same explanation is given, in order to settle the controversy I requested the Members of the Bar to address arguments on this point. Sri. S. G. Bhagawan, learned senior counsel leading the arguments contended that as per Section 4 (2) of the Act no oath can be administered to the accused in the criminal proceedings. Elaborating his arguments, he contended that criminal revision petitions or criminal appeals are nothing but the continuations of criminal proceedings and as such the said bar under Section 4 (2) of the Act operates and, therefore, the office cannot insist upon filing of affidavit in support of interim applications filed in the criminal proceedings in this Court. The second limb of the argument of the learned counsel for the petitioners is that in view of the specific rules, viz. , the Mysore Criminal Rules of Practice, 1968 (hereinafter referred to as the 1968 Criminal Rules), the present insistence of the office on the requirement of Rule 2 of Chapter X of the Rules is erroneous, as there is no requirement under the Rules to file affidavit in the criminal proceedings. It is further contended that , when the specific Criminal Rules have been enacted as long back as in 1968, the High Court Rules have no application so far as criminal proceedings are concerned. It is also contended that the Rules are promulgated in exercise of the powers conferred under Art. 227 of the Constitution of India, and in view of Sections 122 and 129 of the Code of Civil Procedure, in the absence of any mention of the Criminal Procedure Code in the preamble of the Rules it has to be held that the said Rules (High Court Rules) are framed only for the purpose of civil matters and not for criminal cases.

(3.) IN order to appreciate this contention it is necessary to look into various enactments. The Act (the Oaths Act) is enacted for the purpose of consolidating the law relating to judicial oaths and for certain other purposes. The Act consists of only 9 sections and the relevant provisions for this purpose is Section 4. Section 4 of the Act reads thus : "4. Oaths or affirmations to be made by witnesses, interpreters and jurors - (1) Oaths or affirmations shall be made by the following persons, namely :- (a) all witnesses, that is to say, all persons who may lawfully be examined or give or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors; Provided that where the witness is a child under twelve years of age, and the court or persons having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. (2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties. " Reading of Section 4 of the Act makes it clear that sub-clause (1) of this section states as to whom oath shall be administered, viz. , (1) all witnesses who may be examined or required to give evidence by or before any court or the person having by law or consent of parties authority to examine such person or to receive evidence (2) interpreters of questions put to and evidence given by witnesses and (3) jurors.