An affidavit is a written statement or declaration sworn and subscribed to before an authorized individual by the government to administer the oath.
Section 297 Cr.P.C contemplates that the authorities before whom affidavits may be sworn. Affidavits can be sworn by the any judge, or any judicial or executive Magistrate or any commissioner of oaths appointed by a high Court or court of session, or any Notary appointed under the Notaries act 1952. Or order XIX of CPC in civil matters .
A notary is a state officer whose functions are to attest and certify, by his hand and official seal, various documents, in order to give them authenticity in other jurisdictions.To perform other official acts, the power to do which is conferred by statutory enactment. As a general rule, the functions of a notary are ministerial, not judicial. They are confined to the civil, as distinguished from the criminal, branch of the law.
S 8. Persons giving evidence bound to state the truth—Every person giving evidence on any subject before any court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject.
- Relevant law—The provisions of the Code of Civil Procedure, 1908, on the subject of affidavits, are contained in Section 139 and Order XIX of the Code.
- Joint Affidavit—There is no legal objection to persons joining in a single affidavit in whole or in part; but Courts or Magistrates should, in such cases, be careful that each declarant deposes separately, and that the certificate is adapted to the actual circumstances of the particular case.
- Under Section 139 (b) of the Code of Civil Procedure approximately two to four legal practitioners at the Headquarters of each district and one at each station where there is a Subordinate Judge, are appointed as Commissioners for the purpose of administering oaths and affirmations with the previous approval of the High Court. Oath Commissioners may also be appointed at Headquarters of Tahsils where there are no Subordinate Judges.
- Attestation of affidavits by process serving and other officials—In order to facilitate the verification of affidavits of serving officers made under Order V, Rule 19, or Order XVI, Rule 10, of the Code of Civil Procedure, the State Government has empowered the Court of the Subordinate Judge of the First Class in charge of the Nazarat to appoint an officer subordinate to itself to administer oaths to process-servers, bailiffs, naib-nazirs and nazirs making affidavits of service of summons, notices and other processes under the Code of Civil Procedure.
- Title of affidavits—(i) Every affidavit to be used in a Civil Court shall be entitled:
“In the Court of . . . . . . . . . at . . . . . . . . . . . . (naming the Court and place of sitting).
(ii) If there be a cause in Court, the affidavit in support of or in opposition to an application respecting it shall also be entitled in the cause, thus :—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant
Claim: . . . . . . . . . . . (naming the parties and stating the nature of the claim).
(iii) If there be no cause in Court, the affidavit shall be entitled :— “In the matter of the petition of . .
. . . . . . . . . . (name) paying . . . . . . .
(brief statement of subject)
(iv) Every affidavit shall be further entitled :—
“Affidavit of . . . . . . . .. .(name) made on this . . . . . . . ..day of . . . . . .
19 . . . . (date) before . . . . . . . . (name of attesting officer), at . . . . . . (place).”
- Contents of affidavits—(i) Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject.
(ii) Every person, other than a plaintiff or defendant in a suit in which the application is made, making any affidavit, shall be described in such manner as will serve to identify him clearly : that is to say, by the statement of his full name, the name of his father, his profession or trade, and the place of his residence.
(iii) When the declarant in any affidavit speaks to any facts within his own knowledge, he must do so directly and positively, using the words „I affirm‟ or „I make oath any say‟.
(iv) When the particular fact is not within the declarant‟s own knowledge, but is stated from information obtained from others, the declarant must use the expression „I am informed‟,—and, if such be the case, should add „and verily believe it to be true’—or he may state the source from which he received such information. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the declarant shall specify the source from which they were procured, and state his information or belief as to the truth of the facts disclosed in such documents.
- Affidavits generally to be confined to facts which are within defendant’s knowledge—(i) Attention is drawn to Order XIX, Rule 3, which lays down that affidavits shall be confined to such facts, as the deponent is able of his own knowledge to prove, except interlocutory applications (See Order XXXIX, Rules 6 to 10), on which statements of his belief may be admitted : provided that the grounds
thereof are stated.
(ii) All interlineations, alterations or erasures in an affidavit shall be initialled by the person swearing it and the person before whom it is sworn. Such interlineations, alterations or erasures shall be made in such manner as not to obliterate or render it impossible or difficult to read the original matter. In case such matter has been obliterated so as to make it impossible or difficult to read it, it shall be rewritten on the margin and initialled by the person before whom the affidavit is sworn.
- Identification of deponent—Every person making an affidavit shall, if not personally known to the Court, Magistrate or other officer appointed to administer the oath or affirmation, be identified to such Court, Magistrate or officer by some person known to him; and such Court, Magistrate or officer shall specify, at the foot at the affidavit, the name and description of the person by whom the identification is made, as well as the time and place of the identification and of the making of the affidavit
- Mode of attestation—The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark, date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added.
- Attesting officer’s duty—If any person making an affidavit appears to the Court, Magistrate, or other officer administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand the contents of the affidavit, such Court, Magistrate, or officer shall cause the affidavit to be read and explained to him in a language which both he and such Court, Magistrate or officer understand; either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court, Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it.
- Attesting signing and verification of affidavits—Every affidavit shall be signed or marked and verified at foot by the deponent and attested by the Court, Magistrate or other officer administering the oath or affirmation. Every page of the affidavit shall be signed by the deponent and initialled by the attesting Officer. The verification by the deponent shall be in one of the forms attached hereto, and shall be signed or marked by the deponent. The attestation of the Court, Magistrate or other officer administering the oath or affirmation shall also be in the form prescribed below.
I solemnly swear that this my delcaration is true, that it conceals nothing, and that no part of it is false.
I solemnly affirm that this my declaration is true, that it conceals nothing, and that no part of it is false.
We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins, C. J. and Woodroffe, J. in Padmabati Dasi vs. Rasik Lal Dhar 37 Cal 259 and endorse the learned Judges’ observations.
Amar Singh vs Union Of India & Ors on 11 May, 2011(SC)
This Court, therefore, directs that the Registry must henceforth strictly scrutinize all the affidavits, all petitions and applications and will reject or note as defective all those which are not consistent with the mandate of Order XIX Rule 3 of the CPC and Order XI Rules 5 and 13 of the Supreme Court Rules.
K. K. Nambiar v. Union of India and another, AIR 1970 SC 652, held as follows:
“The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant’s petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons 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 the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence.
Dalip Singh v. State of U.P. and others – JT 2009 (15) SC 201: (2010) 2 SCC 114.
In the last noted case of Dalip Singh (supra), this Court has given this concept a new dimension which has a far reaching effect. We, therefore, repeat those principles here again:
“For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa (non-violence), Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, mis-representation and suppression of facts in the court proceedings.
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.