BHAGWAN GOPE Vs. KAMESHWAR SHARMA

JUDGEMENT

(1.) THIS application by the two petitioners under Section 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as the Code) is directed against the final order dated the 18th November, 1968 passed by the Magistrate in a proceeding under Section 145 of the Code. The petitioners were the members of the first party whereas the opposite party was the member of the second party in the said proceeding.

(2.) MR. Braj Kishore Prasad learned Counsel, appearing on behalf of the petitioners, has drawn my attention to paragraph 2 of the supplementary affidavit dated 13.12.1971 filed in this Court. wherein it is stated that out of eleven affidavits which were filed on behalf of the opposite party nine were sworn before another magistrate who was never in seisin of the proceeding and in that view of the matter those affidavits were inadmissible. On the other hand learned Counsel appearing on behalf of the opposite party fairly conceded that fact, and he added that in fact twelve affidavits were filed on behalf of the opposite party. Out of those twelve affidavits, ten were sworn before another magistrate who was not in seisin of the proceedings. Only the remaining two affidavits were sworn before Shri R.K. Sinha, who had passed the impugned order.

(3.) HOWEVER, Mr. Kailash Roy, learned Counsel for the opposite party submitted that their Lordships in 1971 Pat LJR 317 (Supra) have failed to notice Section 7 of the Oaths Act, 1969 (Indian Parliament Act 44 of 1969) which reads as: No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregulartiy whatever in the administration of any oath of affirmation or in the form in which it is administered, shall invalidate any proceeding or. render inadmissible any evidence whatever, in or in respect of which such omission substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. According to learned Counsel the above provisions made it abundantly clear that the irregularity in the administration of any oath shall not invalidate any proceeding or render inadmissible any evidence whatever, which clearly distinguishes the provisions of Section 13 of the Indian Oaths Act (Act X of 1873) which their Lordships had in view. Section 13 of the Old Act provides- No omission to take any oath or make any affirmaition no substitution of. any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, took place, or shall affect the obligation of a witness to state the truth. He contended that in the said judgment their Lordships had in fact referred only to Section 4 of the Old Act. In that view of the matter, he submitted that the judgment of their Lordships was per incuriam as the new Act was not taken into consideration at all. Therefore it requires consideration by a Larger Bench.