SUDERSHAN SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) THIS revision petition is directed against the order of the learned City Magistrate, Jammu, dated 23 -4 -1976, where by he held the affidavit submitted by the respondent in proceedings under section 145 Cr. P. C to be properly verified and admissible in evidence.

(2.) FROM the perusal of the record it appears that in proceedings under section 145 Cr. P. C brought by the respondent in the court of learned City Magistrate, Jammu, the applicant, respondent herein submitted the affidavits of some witnesses in support of his case. During the course of argument, the non applicant petitioner herein raised a preliminary objection regarding the inadmissibility of these affidavits. The precise objection raised by the non applicant petitioner herein was that the affidavits were not properly verified. The verification of the affidavits in question reads as follows: "mozar holfan beyan karta hai kae beyan halfi bala bilkul sahi wa darust hai koi zuz zoot nahin -aur nae hai kohi amar poshida rakha gaya hai" Translated it would read" I solemnly affirm that my affidavit is correct and true. No part or it is false nor has any thing been concealed therefrom" The learned City Magistrate Jammu, relied upon Civil Rules and orders for the guidance of the court subordinate to the High Court for holding that the affidavits were properly verified and as such admissible in evidence. Aggrieved the non applicant petitioner has come up to this court. 4 Mr. A. V. Gupta, learned counsel appearing for Mr. Thakur has submitted that reliance on civil Rules and Orders placed by the learned City Magistrate Jammu was misplaced. Learned counsel has submitted that those rules etc have been framed under the provisions of C. P. C and are, therefore, not applicable to proceedings under the Cr. P. C. It is also asserted by Mr. Gupta that in the absence of any rule, the provisions of Order 19 Rule 3 C. P. C relating to the verification would apply in general terms to all the affidavits and since the verification of affidavits submitted by the applicant respondent herein, were not modelled on the lines suggested in order 19 Rule 3 C. P. C the verification was bad and the affidavits consequently inadmissible in evidence. 5 Mr. S. D. Sharma appearing for the respondent has submitted that the provisions of Order 19 Rule 3 C. P. C were not applicable and that since the Civil Rules framed for guidance of the courts subordinate to the High Court do not provide for any separate verification there was no defect in the affidavits submitted. Reliance is placed upon Chapter 10 of the Rules and Orders Supra in an which form of the affidavit is given. 6 In chapter 10 of the Rules and Orders Lai Supra a form of affidavit has been given. The verification given in the form is in the following words. "I solemnly affirm that this my declaration is true, that it conceal nothing and that no part of it is false. 7 Mr. Sharma submits that the affidavits filed by the respondent applicant are in accordance with the prescribed form. 8 I have given my anxious consideration to the respective contentions raised at the bar and have also perused the affidavits filed by the parties in case. 9 There is no denving the fact that the affidavits filed by the respondent in the proceedings in support of the application under section 145 Cr. P. C do not contain any separate verification. The absence of verification renders an affidavit almost meaningless. The importance of verification an affidavit has been emphasized time and again and it would be advantageous to quote the following observations of their lordship of the Supreme Court in A K.K. Nambiar Vs. Union of India and another, AIR 1970 S. C. 652. "The reasons for verification of affidavits are to enable the court to find out which facts can be said to be proved on the affidavits evidence of rival parties. Allegations may be true to information received from person or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence. 10 The same view was reiterated in Virandra Kumar Saklechs Vs. Jagjiwant and others. AIR 1974 S. C. 1950. The argument of Mr. Sharma that since the affidavits have been filed in accordance with the form prescribed in Chapter 10 of the Civil Rules, framed for the guidance of the subordinate courts, the absence of verification would not invalidate affidavits, to my mind is not a sound argument. The omission of verification in an affidavit deprives the court to fix the responsibility about the truth and correctness of the various assertions contained in the affidavit. The Criminal Procedure Code does not give any model of an affidavit and there are no rules framed for the guidance of the Criminal Courts providing for the form of an affidavit. In the absence of any form prescribed for the filing of an affidavit in a criminal proceedings, the general principles contained in Order 19 Rule 3 C. P. C relating to verification would be applicable. Their lordships of the Supreme Court, while deprecisting, slipshod verification in an affidavit in Barium Chemical Ltd and another Vs. Company Law Board and others AIR 1967 S. C. 29, reiterate that where rules do not provide for the manner in which an affidavit is to be verified, the verification should invariably be modelled on the lines of Order 19 rule of the Doce whether Code applies in terms or not! In this view of the matter, the order of the learned City Magistrate holding that the affidavit without the requisite verification were admissible in evidence is not correct. 11 There is another aspect of the whole case also which merits consideration. 12 A perusal of the affidavits filed by both the parties reveal a glaring defect in those affidavits. 13 Under the Criminal Procedure Code evidence by affidavits is permissible under certain circumstances. Section 510 A Cr. P. C allows evidence of a formal character to be given by affidavit but an affidavit contemplated by the section has to be sworn in the manner prescribed in S. 539 Cr. P. C, 14 S. 539 A Cr. P. Clays down that the affidavit to be used before any court, other than the High Court under Section 510 A Cr. P. C or section 539 A Cr. P. C may be sworn, or affirmed in the manner prescribed in section 539 A Cr. P. C before any magistrate. An affidavit becomes receivable in evidence only if it has been sworn or afirmed before a Magistrate empowered to administer oath under the oath Act he has to make an endorsement to the effect that the deponent, whom he knows or whom he believes to be the person, deposing on the identification of some other person, whom he knows, has made the statement on oath or Solemn affirmation be before him regarding the contents of his affidavit such a certificate given by the Magistrate or even the Oath Commissioner in certain cases at the foot of the affidavit or at any rate after the complete affidavit is written and drawn up In the absence of such a attestation, the court has no material from which it may be found as to whether the so called affidavit has been sworn or affirmed at all. The affidavits of Sarvshri Mohan Lal, Perma -and, Des Raj, Paru Ram and Dharm Vir filed by the respondent applicant near the endorsement of the magistrate on the back of the first page of the affidavit at a stage when the affidavit is only half complete. The deponent has not signed the affidavit at this stage. There is no certificate or attestation of the magistrate on the portion of the affidavit written on the second page which not only contains the concluding paragraphs but also the signature of the deponent. Such a slipshod attestation has no meaning in the eye of law and there is no guarantee that the entire affidavit was deposed to by the deponent on Oath or solemn affirmation before the magistrate. The second page on which the deponent has signed is capable of easy substitution, as there is no endorsement of the magistrate on it, In fact, there would be no guarantee even of the identity of deponent as the deponent has signed that part of the affidavit which bears the endorsement of the magistrate. The affidavits have not been attested by the magistrate after being completely drawn up. The affidavit of none of the persons named above can be said to meet the minimum requirements of a proper attestation. The affidavits cannot, therefore, be received in evidence. They could not be taken into consideration. 15 The affidavits filed by the petitioner non applicant of Sarvshiri Durga Singh, Jagdish Singh, Bhagwan Singh, Talk Haj, Grudial Singh, Thakur Dass Sutrinder Singh Krishen Lal and Mohan Lal S/O Bodh Raj also suffer from the same vice. In their case also the attestation of the magistrate is only on the incomplete affidavits and there is no guarantee that the portion of the affidavit written after the attestation has at all been sworn to by the deponent or not or whether it has been substituted after the incomplete affidavit was sworn or affirmed before the magistrate. These affidavits are also of no value and cannot be taken into consideration. 16 It is unfortunate that proper attention was not paid by the parties, the learned magistrate while attesting the affidavits and the learned City magistrate while disposing of the objection on this aspect of the case which would now warrant to remand of the case resulting in delay in the, disposal of the case. Justice, however demands that the case be remanded to the learned Magistrate to enable the parties to file proper affidavits. This remand may cause delay but justice cannot be sacrificed at the cost of delay alone. 17 While accepting this revision petition I would remand the case to the learned City Magistrate Jammu with the direction that he may afford opportunity to the parties to file proper affidavits and after the needful is done dispose of the case in accordance with law as expeditiously as possible. The parties through their learned counsel are directed to appear before the learned city Magistrate Jammu on 6 -1 -1977.