Affidavits

DEFINITION OF AFFIDAVITS:

The general clauses act,

The General Clauses Act defines ‘Affidavit’ as a document that include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. It is a voluntary statement that includes a person’s declaration in writing that is signed by the deponent (person making the affidavit) and accompanied by an oath. In Latin, “Affidavit” means to “pledge ones faith.” It is necessary that the affidavit is witnessed and signed by a notary authority, along with the sign of the affiant. Affidavit is taken to be sort of a written court testimony.

LAW GOVERNING AFFIDAVITS:

Section 139, Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court Rules are the laws that govern ‘Affidavits’ in India. The importance of affidavit has been upheld by the courts in many instances.

"Matters to which affidavits shall be confined - (1) affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated."

Under Rule 5 of Order XI of the Supreme Court Rules , it is stated that, "Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated."

In Padmabati Dasi v. Rasik Lal Dhar, Calcutta High Court, using Order XIX Rule 3 of the CPC said that every affidavit should clearly express how much is a statement of the affiant’s knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it will be correct to rely on such belief.

In case of M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and other it was held that under Order XIX, Rule 3 of the CPC it is  mandatory for the affiant to reveal the nature and source of his knowledge and information with sufficient particulars. It was held that, where allegations are not affirmed, such cannot be regarded as supported by an affidavit as required by law.

MODE OF ATTESTATION OF AN AFFIDAVIT:

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.

CONTENTS OF AN AFFIDAVIT:

It is necessary that the affidavit containing any statement of facts be divided into paragraphs that are numbered. It is preferred that, each paragraph shall refer to a distinct portion of the subject.

It is mandatory that, every person, making any affidavit, be described in such manner as will help to identify him clearly, by stating his full name, his father’s name, his profession or trade, and the place of his residence. It is also necessary that those statement that the affiant makes in the affidavit must be affirmed by the words ‘I affirm’.

When the affiant is not in knowledge of a fact himself but, he is informed about such fact by others, he must use the words ‘I am informed’, and, should add ‘and verily believe it to be true’. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the affiant shall mention the source from which they were procured, and state his information or belief as to the truth of the facts disclosed in such documents. A sample affidavit can be accessed here.

NECESSITY IF SCRUITINIZING AFFIDAVIT:

The Supreme Court in Amar Singh v. Union of India and Others has issued directions to the courts registry to carefully scrutinize all affidavits, petitions and applications and reject those which do not conform to the requirements of Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court Rules. The Supreme Court has highlighted the importance of affidavits in this judgment and has discussed various judicial pronouncements on the aspect.

The court in the case of A. K. K. Nambiar v. Union of India and another, said that:

"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."

SIGNIFICANCE OF AFFIDAVIT IF REJECTED:

Just because a Petition is dismissed does not necessarily mean that the Affidavit contained false evidence. Dismissal means that the petition is not maintainable for whatever reasons which may or may not include perjury. An affidavit (in any matter) submitted to a Court of law, simply means that the Deponent has made the statements contained in his Affidavit, on oath before a person competent to receive such oaths. The statements in the Affidavit would form the basis for the Deponent claiming whatever relief it is that he claims. The Deponent is obliged to state the truth in any Affidavit submitted to a competent authority, and he can be prosecuted for Perjury i.e. giving false evidence on oath, if it is shown that his Affidavit contained any falsehoods. A benchmark judgment of the Supreme Court in this context is:

'Re: Suo Moto proceedings against Mr. R. Karuppan, Advocate, in the year 2004. The Zahira Shaikh case is another example, however the reasoning given re: Evils of Perjury in the Karuppan case is more specific for citation purposes.

Much earlier former SC Chief Justice Krishna Iyer had also directed that courts must be pro-active and take strict penal action in every case where litigants resort to perjury. The judgment is:- T. Arivandandam vs. T.V. Satyapal and Another, (1977) 4 SCC 467.

Most judges especially in lower courts are overburdened and would not be inclined to take suo moto notice of Perjury. It is therefore necessary for the aggrieved party to file an Application u/Sec.340 Cr.PC. within the main matter, praying for the Court to sanction and initiate action against the opponent for offences of Perjury (which comes under Chap. X of IPC). It will be necessary to show prima facie that the offence was committed with mens rea i.e. with malafide intent / with intent to gain by such malafides. If the Court is satisfied, it will issue a Show Cause notice to the accused Party, or in the case of higher courts, may direct the Registry to file the complaint of Perjury at the concerned court. However, even when this happens, conviction rates are usually low because the trial is statutorily conducted by the Public Prosecutor who is mostly incompetent and indifferent apart from having many other cases to prosecute. The aggrieved party, if he wants justice, should therefore file an Application u/S.302 Cr.PC. to be heard in this matter whenever it comes up at the magistrates court.

Lawyers are usually dismissive when their clients suggest taking action against perjury committed by the opponent. This is because most lawyers routinely commit perjury in the affidavits prepared by them on behalf of their clients. That is why it is so important for any client to thoroughly read every submission prepared by his lawyer, and thereafter point out and ensure that any errors, falsehoods (intentional or otherwise) etc are corrected. Remember that the Deponent is personally liable for the contents of his sworn Affidavit, not the lawyer.

CURRENT STATUS

Affidavits impose their own cost on the citizens on buying stamp paper, locating a deed writer, payment to the Notary for attestation and of course, the time and efforts consumed in these processes. On the other hand, affidavits have no particular sanctity in law and the same function can be easily performed by declarations.

There is a need to replace affidavits by Self-Declarations for all services in the public utilities/agencies. Affidavit is a declaration, and such, a declaration in itself is adequate for the purposes of law.

Attestation by the officials, thus, does not appear to be necessary. The applicant/signatory continues to be responsible for the statement made. An advantage that the public agencies have is that they can also impose penal liability for making wrong statements in terms of suspension of the services (suspension of ration card facilities, disconnection of power supply etc.). Some 3 of the Central Government agencies (passport, income tax etc.) have already adopted this practice.

Even though there are considerable provisions for the affidavits, there is still lack of awareness among general public about filing of Affidavits. Complaints of government institutions and departments demanding affidavits are, however, still coming up. Recently Prime Minister, Shri Narendra Modi has encouraged Government of taking self declaration in lieu of Affidavits which goes on a long way to build trust between citizens and the government. So Citizens Just wake up, & check relevant rules of your respective states in filing affidavits and just get rid of this practice.

This article is written by Vernita Jain, a passionate writer at Aapka Consultant, India's leading online one stop business service provider, whose key focus areas are Trademark Registration, Company Registration, Business Compliance's, Copyright, Tax Compliance's, Legal Documentation etc.

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