JAGAT NARAIN Vs. STATE OF U P

JUDGEMENT

(1.) THIS application in revision arises out of an order passed by the Magistrate summoning the accused. It appears that a complaint was filed against the applicant for an offence under section 379 IPC. The statement of the complainant and his witnesses was recorded. Thereafter, the impugned order has been passed by the Magistrate summoning the applicant. Hence this revision.

(2.) THE sole point which has been argued in this revision is that the oath which was given to the witnesses in the examination under section 200 CrPC was given by Khayali Ram orderly (Chaprasi), and therefore, these statements are not admissible in evidence. It is hence argued that there is no material before the trial court for summoning the applicant. 'On the other hand, the Government Advocate Sri Girdhar Malviya has submitted that even if the oath was administered to the witnesses by the Chaprasi of the court, at the worst it would be an irregularity curable under section 7 of the baths Act and will not vitiate the proceedings.

(3.) COUNSEL for the applicant has in support of his submission cited a decision of Ganpat Dewaji Patil v. Emperor, 1929 Bombay 136. He has relied upon the following observation of that court "Section 13 cures the form of the oath and even an entire omission to take the oath, but does not cure the absence of authority in the officer administering the oath. On this plea it was held in the Bombay case that the statements made by the accused before the Najir of a subordinate court of Yaval, was not legal evidence, because the said statement had been made before an officer without any authority to record the same. It is noticeable that the present case before us does not relate to an affidavit. There can be no two opinion that when an affidavit is sworn before an authority which in law is not authorised to record the same, then such an affidavit can have no legal sanctity and would be nothing more; than waste paper. But in the instant case the factual position is that the statement of the witness is being recorded in the presence of the court which is empowered to record the statement. The only criticism which can be made in this connection is that though the statements has been recorded in the persence of the court yet the oath has not been administered by the court, itself, which should have been done under section 6 (2) of the Oaths Act. Taking the conditions of subordinate courts and the procedure which are being followed day to day therein,, it can not be doubted that the practice of permitting Chaprasis to administer oaths to witnesses who have come to depose before the court, is a most abominable practice. It is likely to lead to an abuse of the process of the court, it can be misused. Instances are not wanting when the statements of 3 to 4 witnesses are being recorded at a time in the presence of a court, at most simultaneously. After oaths had been administered to all of them by the Chaprasis of the courts, it is practically impossible for the Presiding Officer to be attentive enough and do make sure that the statements so recorded are genuine and true statements, made by the deponents. Such an irregularity can even lead to a serious miscarriage of justice. In my opinion, the sooner, this practice is discontinued, the better, it would be for a clean administration of justice.