ABDUL SALAM Vs. AHMAD DIN

JUDGEMENT

(1.) The only question which calls for decision in this recommended revision petition is whether affidavits sworn by witnesses and/or parties to proceedings under Section 145 of the Code of Criminal Procedure before a Commissioner for Oaths appointed under Section 139(b) of the Code of Civil Procedure can be received as evidence by the competent Magistrate in whose Court the Section 145 proceedings are pending. A Court can only receive legal and admissible evidence in proceedings under Section 145 of the Code of Criminal Procedure. Both sides in this case filed affidavits of witnesses before the trial Court which were attested by an Oaths Commissioner and not by any Court. The deponents did not appear before the Sub-Divisional Magistrate who was trying the case under Section 145 of the Code. I am inclined to think that an Oaths Commissioner appointed under Section 139(b) of the Code of Civil Procedure is competent to allow affidavits being sworn before him in relation only to cases under the Code of Civil Procedure, i.e., civil cases. For all other cases the authorities competent to administer Oaths would be the authorities named in Section 4 of the Oaths Act which provision reads as follows :

(2.) The Oaths Commissioner who has attested the disputed affidavits admittedly does not fall within any of the categories of Courts or persons mentioned in Section 4 of the Oaths Act. I am, therefore, in agreement with the recommendation of the Additional Sessions Judge to the effect that the disputed affidavits sworn before the Oaths Commissioner could not be received by the learned Sub-Divisional Magistrate as evidence in the case and that since the order of the S.D.M., is based at least partially on what was not legal evidence before the Court, the said order has to be set aside and the learned Magistrate has to be directed to allow the parties to produce proper affidavits or other legal evidence and then to decide the case in accordance with law.

(3.) Mr. G.S. Chatrath, the learned counsel for the contesting respondent, has argued that affidavits are referred to in Sections 74, 526(4), 510, 539, 539-A and 539-AA of the Code of Criminal Procedure and that the above-mentioned sections refer to the authorities before which the affidavits mentioned in those sections should be sworn. The argument is that for proceedings under Section 145 of the Code of Criminal Procedure no particular authority, person or Court is specified by the Code of Criminal Procedure to be competent to get an affidavit sworn or attested. There is no doubt that this is correct. But the result of this situation is that an affidavit in order to be good evidence in a proceeding under Section 145 of the Code of Criminal Procedure has to be sworn before an authority which is otherwise competent under some law to administer oath. In the light of the observations made by me in an earlier part of this judgment the Court of every Magistrate or other judicial officer who is entitled to receive evidence is such a competent authority under Section 4 of the Oaths Act; but an Oaths Commissioner appointed by the High Court under Section 139(b) of the Code of Civil Procedure would not have any such jurisdiction or authority as he is not entitled to receive evidence. Section 139(b) of the Code reads as follows :