Affidavit is a document in which a person gives facts, and swears that the facts are true and accurate.
1- Section 4 of the Indian Oaths Act lays down the authority to administer oaths and affirmations and it prescribes the courts and persons authorised to administer by themselves or by their officers empowere a that behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed upon them and they are all courts and persons having by law the authority to receive evidence. Section 5 prescribes the persons by whom oaths or affirmations must be made and they include all witnesses i.e. all persons who may lawfully be required to give evidence by or before any court. Section 14 of that Act is in the following words:
“S. 14. 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.”
2- S. 191 of the Indian Penal Code the relevant portion of which is:
S. 191. “Whoever being legally bound by an oath or by an express provision of law to state the truth………. makes any statement which is false and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.”
Explanation 2 to S.191. “A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by, stating that he knows a thing which he does not know.”
The opening words of S. 191 “who ever being legally bound by an oath or by an express provision of law to state the truth …….” do not support the submission that a man who is not bound under the law to make an Affidavit, can if he does make one, deliberately retrain from stating truthfully the facts which are within his knowledge. The meaning of these words is that whenever in a court of law a person binds himself on oath to state the truth he is bound to state the truth and he cannot be heard to say that he should not have gone into the witness box or should not have made an Affidavit and therefore the submission that any false statement which he had made after taking the oath is not covered by the words of S. 191. Whenever a man makes a statement in court on oath he is bound to state the truth and if he does not, he makes himself liable under the provisions of S. 193. It is no defence to say that he was not bound to enter the witness box. A defendant or even a plaintiff is not bound to go into the witness box but if either of them chooses to do so he cannot after he has taken the oath to make a truthful statement, state anything which is false. Indeed the very sanctity of the oath requires that a person put on oath must state the truth. In our opinion this contention is wholly devoid of force and must be repelled.[ Ranjit Singh-AIR 1959 SC 843 : (1959) 2 Suppl. SCR 727 : (1959) CriLJ SC 1124]
Does the swearing of the false Affidavits amount to an offence under S. 199, Indian Penal Code or under either S. 191 or 192. Indian Penal Code?
If it comes under the two latter sections, the present prosecution cannot be sustained. Section 199 deals with a declaration and does not state that the declaration must be on oath. The only condition necessary is that the declaration must be capable of being used as evidence and which any Court of justice or any public servant or other person, is bound or authorised by law to receive as evidence. Section 191 deals with evidence on oath and S. 192 with fabricating false evidence. If we consider this matter from the standpoint of S. 191 Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the truth because an Affidavit is a declaration made under an oath The definition of the offence of giving false evidence thus applies to the Affidavits. The offence may also fall within S. 192. It lays down inter alia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may cause any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding [ Baban Singh and another vs Jagdish Singh and others AIR 1967 SC 68 : (1966) 3 SCR 552 : (1967) CriLJ SC 6]
Prosecution for perjury
- Penal Code, 1860—Section 191—Perjury—False Affidavit—Special provision for prosecution of witnesses deposing falsely in Court, has no application.
- Criminal Procedure Code, 1898—Section 476—Perjury—Considerations for grant of sanction—Mere inaccuracy in statement is not sufficient—Sanction should be granted only in case of deliberate falsehood.
The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false Affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.
3- 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. [State of Bombay Versus Purushottam Jog Naik -AIR 1952 SC 317 : (1952) SCR 674 : (1952) CriLJ SC 1269]
Civil Procedure Code, 1908—Order 19, Rule 1—Affidavit—Form of—Necessity of verification—Object of—Absence of proper verification—Effect of- 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. [A. K. K. Nambiar-AIR 1970 SC 652 : (1970) 3 SCR 121 : (1969) 3 SCC 864]
4- “In the absence of any specific denial on the part of the State, the Chief Minister and the Superintendent of Police concerned, we must reluctantly go by the Affidavit filed by the petitioner. In proceedings of this kind, it should be known that the Court does not examine witnesses in support of allegations of fact made by either side. Ordinarily, the Court acts upon the Affidavit of one side or that of the other. But if one side omits to make an Affidavit in reply the Affidavit of the other side remains uncontroverted”.[Hazara Singh Gill-AIR 1965 SC 720 : (1964) 4 SCR 1 : (1965) 1 CriLJ SC 639]
5- The High Court mainly dismissed the writ petition on the ground that the Affidavit filed in support of the writ petition was highly unsatisfactory and that on the basis of such an Affidavit it was not possible to entertain the petition. In exercise of the powers conferred by Art. 225 of the Constitution and of other powers enabling it in that behalf the High Court of Allahabad framed the Rules of Court. Chapter XXII thereof deals with the procedure to be followed in respect of a proceeding under Article 226 of the Constitution other than a writ in the nature of habeas corpus. The relevant rule is sub-r. (2) R. 1 of Ch. XXII, which reads;
“The application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the Court is asked to issue a direction order or writ, and shall conclude with a prayer stating clearly, so far as circumstances permit, the exact nature of the relief sought. The application shall be accompanied by an Affidavit or Affidavits in proof of the facts referred to in the application. Such Affidavit or Affidavits shall be restricted to matters which are within the deponent’s own knowledge.” The application filed in the High Court certainly complied with the provisions of sub-r. (2) of R. 1 of Ch. XXII of the Rules of Court of the Allahabad High Court. It set out concisely in numbered paragraphs the facts upon which the applicant relied, the grounds on which the Court was asked to issue the direction and the exact nature of the relief sought. But it is said that the Affidavit filed in support of the application did not speak to matters which were within the deponent’s own knowledge. Dhruva Das, the deponent of the Affidavit, is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully conversant with the facts. He solemnly affirmed and swore as follows:
“I, Dhruva Das, aforesaid deponent do hereby solemnly affirm and swear that the contents of paras 1, 2, 3 and 50 partly are true to my personal knowledge, that the contents of paras 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 25, 27, 29 partly, 31, 32, 34, 37, 38, 41, 42, 44 are based on 46 and 50 partly and paras 17, 18, 19, 22, 23, 24, 26, 28, 29 partly, 30, 33, 35, 36, 39, 40, 43, 48 partly are based on perusal of the record, those of paras 47, 48 partly 49, 50 partly are based on legal advice, which I believe to be true, that no part of this Affidavit is false and nothing material has been concealed in it.”
In paragraph which are based on a perusal of the record the deponent referred to the relevant orders of the Income-tax authorities and also to the relevant agreements and the copies of the said orders and agreement were also annexed to the Affidavit as schedules. It is not clear from the schedules whether certified copies or the original of the orders received by the appellant were filed. The said agreements and the orders afford sufficient basis to appreciate the case of the appellant and for disposing of the same. “Deponent’s own knowledge” in R. 1 (2) of Ch. XXII of the Rules is wide enough to comprehend the knowledge of the appellant derived from a perusal of the relevant documents, and the Affidavit in express terms disclosed and specified the documents, the source of the appellant’s knowledge. He swore in the Affidavit that the documents annexed to the Affidavit were true copies of public documents. If they are certified copies of public documents, they prove themselves, if they are originals of the orders sent to the appellant, the deponent, as his agent, speaks to their receipt. It is, therefore, not correct to say that the facts stated in the Affidavit are not based on the deponent’s knowledge. The other facts alleged in the Affidavit are only introductory in nature and if they are excluded, the result will not be affected. That apart, if the Affidavit was defective in any manner the High Court, instead of dismissing the petition in limine, should have given the appellant a reasonable opportunity to file a better Affidavit complying with the provisions of R. 1 of Ch. XXII of the Rules. We cannot, therefore, agree with the High Court that the petition was liable to be dismissed in limine in view of the alleged defects in the Affidavit. [ Dwarka Nath- AIR 1966 SC 81 : (1965) 3 SCR 536]
6- Solemnly affirmed sworn by Shri / Shrimati …. at ….this …day of ….202
Magistrate of the First Class/Notary/Commissioner of Oaths”.
The Officer administering the oath shall make the following endorsement on every Affidavit sworn before him and shall date, sign and seal the same.
“Sworn before me on the… day of ….202…by…son of… who is personally known to me (or) who has been identified by………whose signature is/signatures are hereto appended.
Section 139 of the Code of Civil Procedure, under which the Clerk of Court was given this jurisdiction, provides:
“139. Oath on Affidavit by whom to be administered.
In the case of any Affidavit under this Code-
(a) any Court or Magistrate, or
(b) any officer or other person whom a High Court may appoint in this behalf or
(c) any officer appointed by any other Court which the Provincial Government has generally or specially empowered in this behalf.
May administer the oath to the deponent”.
Similarly, S. 539 of the Code of ‘Criminal Procedure(Old) provides.
“539. Courts and persons before whom Affidavits may be sworn.-
Affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed before such Court or the Clerk of the State, or any Commissioner or other person appointed by such Court for that purpose, or any Judge, or any Commissioner for taking Affidavits in any Court of Record in India, or any Commissioner to administer oaths in England or Ireland, or any Magistrate authorised to take Affidavits or affirmations in Scotland.”
7- Whether a witness having been examined by way of Affidavit evidence can be recalled for giving further evidence with regard to facts not mentioned in the Affidavit.
Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the Affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the Affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain apses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for reexamination-in-chief with permission to the defendants to cross examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court’s discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out. [ Vadiraj Naggappa Vernekar – AIR 2009 SC 1604 : (2009) 2 SCR 1071 : (2009) 4 SCC 410 : JT 2009 (7) SC 202 : (2009) 4 SCALE 90]