LexCHHOTAN PRASAD SINGH & ORS. versus HARI DUSADH & ORS.
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A B c 1 74 CHHOTAN PRASAD SINGH & ORS. v. HARi DUSADH & ORS. November 24, 1976 [P. N. BHAGWATJ, A. C. GUPTA AND P. N. SHINGHAL, JJ.] Oaths .Act 1~7~-Section 4--General Clauses Act 1897, sec. 3(3)-Meaning ·of affidavzt-C!·zmmal. Procedure Code 1898-Section 145(1), whether a!fidai•its before a Magistrate in 145 (l) proceedrngs must be sworn before any other authority empowered to administer oath. Proceedings under section 145(1) of the Criminal Procedure Code 1898 were going on between the parties. The appellants filed affidavits before the !Magi~t!ate. The said affidavits were not swo~n before the 1\1agistrate who was m se1sm of the case but were sworn before some other Magistrate. It was con· tended before the Magistrate by the respondents that the said affidavits were not admissible in evidence. The.High Court held those affidavits to be inadmissible. Dismissing the appeal by. specia·l leave, HELD : ( l) In the absence of any specific prov1s10n to the contrary in the Criminal Procedure Code the affidavits have to be sworn or affirmed in ac- D cordance with the provisions of the Oaths Act, 1873. Section 145(1) of the Code provides that the Magistrate making an order under it shall require the pa,rties concerned in the dispute to attend his court in person or by pleader and to put in such documents or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of their claim. The affidavits con- templated by the sub-section are. therefore, evidence for purposes of proceedings before the Magistrate concerned even though the Evidence Act does not apply to them. [175G-H] E (2) There is no provision in the Code specifying the courts before whom the affidavits referred to in section 145 have to be sworn and affirmed. The definition of affidavit in section 3 (3) of the Genernl Clauses Act 1897 only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. Section 4 of the Oaths Act reads a;; under : "4. The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths F and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law :- G H (a) all Courts and persons having by Jaw or cons~nt of p;;rties authority to receive evidence;" It is clear that all Courts. and persons having by law or consent of parties authority to receive evidence are authorised to administer oaths and affirmations. but they can do so only where they are otherwise acting in the discharge of the dnties or in exercise of the powers imposed or conferred upon them res- pectively by law. In the present~ case the ~1agistr.ate concern~d ~ith the pro· ceedings under s. 145 of the Cooe was d1schargmg the duties imposed a11d exercising the powers conferred by the Code and he a.Jone could aJminister the oaths and affirmations to the persons who made affidavits and not Magistrates who were not discharging any such duty or exercising any such power. [176A-H] Nandlal Chose v. Emperor AIR 1944 Cal. 283. Hemdan v. State of Rajasthan & Ors., AIR 1966 Raj. 5; Gol'ind v . .9tate and others AIR 1969 All. 405; Krishna Chandra Naik v. Sk. Makbul and others AIR 1970 Orissa 309; Mahesh Tlwkur and others v. Lakshman Prasad Thakur and anOlher (1971) 19 Bihar Law Journal 727 and State of Madhya Pradesh v. Trivedi Prasa.d (1971) XVI H.R. Law Journal 1059 approved. • ' CHHOTAN PD. SINGH v. HARi DUSADH (Shinghal, J.) 175 Ahmad Din v. Abdul Stdem AIR 1966 Pb.· 528 and Shambhu Nath Choprll v. State AIR 1970 Delhi 210, over-ruled. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 316 of 1971. A (Appeal by Special Leave from the Judgment and Order dated the 17tlt September, 1971 of the Patna High Court in Criminal Revision .B No. 1488 of 19.71) and Criminal Appeal No. 3l7 of 1971. (Appeal by Special Leave from the Judgment and Order dated the 7th October, 1971 of the Patna· High Court in Criminal Revision No. 1491 of 1971.) · D. Goburdhan and D. P. Sharma for the appellants in both the appeals. S. C. Agrawala and V. J. Francis for respondents in both the appeals. The Judgment of the Court was delivered by SHINGHAL, J.-The point for consideration in these appeals . by special leave is whether affidavits sworn or affirmed before magistrates who are not in
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