K. R. Lakshminarayana Rao v. S. A. Devappa — 1999 DIGILAW 1496 (MAD)

Order.- In these cases the question to be considered is, whether affidavits sworn to before a Sub-Registrar are admissible in proceedings under section 145, Criminal Procedure Code, pending before a Special First Class Magistrate. On a report by the Police of Chickballapur that a dispute regarding possession over Survey Nos. 10 and 11 of Chickballapur village between S.A. Devappa (1st party) and K.R. Lakshminarayana Rao (2nd party) was likely to cause a breach of the peace, the learned Special First Class Magistrate, Chickballapur drew up a preliminary order on 12th April, 1963. He called upon the parties to file their written statements and to produce evidence in support of their respective claims. Accordingly, they filed statements, documents and affidavits in support of their claims. The learned Magistrate did not consider the affidavits filed by the parties and rejected them, holding that the affidavits had been sworn to before the Sub-Registrar, who was not the authority as contemplated either under section 539 or section 539-AA, Criminal Procedure Code, before whom an affirmation or oath could be taken. He considered the other material placed before him and declared the first party be put in possession of the land and forbade the second party from interfering with the possession of the first party unless so ordered by a competent Court. Aggrieved by this decision, the second party filed a Revision Petition in the Court of the District Magistrate, Kolar and contended therein that the Special First Class Magistrate was in error in not considering the affidavits sworn to before a Sub-Registrar. The learned District Magistrate was of the view that the affidavits sworn to before a Sub-Registrar were admissible in proceedings under section 145, Criminal Procedure Code, and therefore, he made a reference to this Court recommending that the order of the Special First Class Magistrate be set aside and the learned Magistrate be directed to consider the affidavits filed by the parties and then decide the case on merits. (This reference is Crl.Rev. (This reference is Crl.Rev. Case No. 48 of 1965.) The second party also filed a Revision Petition before this Court against the order of the Special First Class Magistrate, challenging the correctness of the order on the ground that the Magistrate was not correct in rejecting the affidavits filed by him (This is Criminal Revision Petition No. 317 of 1965.) The only provision in the Criminal Procedure Code regarding the node of swearing affidavits and affirmations is to be found in section 539. That section provides that 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, or any Commissioner to administer oaths. Section 539-AA lays down that affidavits to be used before any Court other than a High Court under section 510-A or section 539-A may be sworn or affirmed in the manner prescribed in section 539 or before any Magistrate. A perusal of these sections shows that a Commissioner or Oath Officer appointed by the High Court can have only such affidavit sworn before him as are to be used before the High Court or in the case of other Courts only those affidavits as are under section 510-A or 539-A. In section 539-AA there is no mention of affidavits to be used under section 145. This implies that an affidavit to be used in proceedings under section 145 cannot be sworn or affirmed before a Commissioner or Oath Officer appointed by the High Court. An examination of the provisions of the various sections of the Criminal Procedure Code, shows that affidavits are required to be filed under sections 145, 510-A, 526 and 539-A. Section 526 provides for the transfer of a case by the High Court. An application for the exercise of the powers of transfer under section 526 has, therefore, to be made in the High Court. Such an application requires to be supported by an affidavit under the provisions of sub-section (4) of section 525. Affidavits referred to in sections 510-A and 539-A can be sworn in the manner prescribed in section 539. An application for the exercise of the powers of transfer under section 526 has, therefore, to be made in the High Court. Such an application requires to be supported by an affidavit under the provisions of sub-section (4) of section 525. Affidavits referred to in sections 510-A and 539-A can be sworn in the manner prescribed in section 539. If the Legislature had intended that affidavits under section 145 were also to be sworn in the manner prescribed in section 539, a provision similar to the provision relating to affidavits under sections 510-A and 539-A would have been enacted by inserting section 145 in section 539-AA. Under section 145 parties may file affidavits in support of their claims. The Code does not contain any provision relating to the mode of swearing of an affidavit to be filed in proceedings under section 145. An affidavit is a statement or a declaration in writing on oath or affirmation before a person having authority to administer an oath or affirmation. Section 4 of the Indian Oaths Act, 1873, indicates the persons having authority to administer oaths. That section reads as follows: "The following Courts and persons are authorised to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law: (a) all Courts and persons having by law or consent of the parties authority to receive evidence; (A) the Commanding Officer of any military, naval, or air force station or ship occupied by troops in the service of the Government: Provided- (1) that the oath or affirmation be administered within the limits of the station, and (2) that the oath or affirmation be such as a Justice of the Peace is competent to administer." It is. clear from the provisions of this section that all Courts and persons having by law or consent of the parties authority to receive evidence are authorised to administer oaths and affirmations in discharge of their duties or in exercise of the powers imposed or conferred upon them by law. clear from the provisions of this section that all Courts and persons having by law or consent of the parties authority to receive evidence are authorised to administer oaths and affirmations in discharge of their duties or in exercise of the powers imposed or conferred upon them by law. In other words, all Courts and persons having by law or consent of the parties authority to receive evidence are authorised by themselves or by any officer empowered by them in this behalf to administer oaths and affirmations in discharge of their duties or in exercise of the powers imposed or conferred upon them respectively. It is obvious, therefore, that in discharge of the duty or in exercise of the powers imposed or conferred upon them respectively by law that Courts as well as persons are authorised to administer oath and affirmation. It follows that a Sub-Registrar, who has no authority to receive evidence in any matter or upon whom no power is imposed or conferred by law, has no authority to administer oaths and affirmations. It was the Special First Class Magistrate before whom the proceedings were pending, who had a duty to decide the dispute and receive evidence in the proceedings. Affidavits could, therefore, be sworn by him or an officer empowered by him in this behalf and not by any other person, more so by the Sub Registrar. In Wahid v. State1, it was hold that the Magistrate before whom the proceedings were pending had a duty to decide the dispute between the parties with regard to the possession of the enclosure and it cannot be doubted for a moment that for the proper discharge of his duty the Magistrate had an authority to receive evidence in the proceedings. He was, therefore, a person authorised to administer oath either by himself or by an official empowered by him in this behalf. The affidavits that were to be filed in the proceedings could, therefore, be sworn by the Magistrate before whom the proceedings were pending decision. The affidavits put in by the second party, which were sworn by another Magistrate, who had no concern with those proceedings, were not proper affidavits and could not be taken into evidence. The affidavits that were to be filed in the proceedings could, therefore, be sworn by the Magistrate before whom the proceedings were pending decision. The affidavits put in by the second party, which were sworn by another Magistrate, who had no concern with those proceedings, were not proper affidavits and could not be taken into evidence. Reference may be made to a Bench decision of the Calcutta High Court, in support of the above view, in Nandalal Ghose v. Emperor2, where the affidavit by the accused in a criminal proceedings was sworn before a First-Class Magistrate who had no jurisdiction to take evidence in the matter in respect of which the accused was prosecuted. It was held that the accused cannot be prosecuted under sections 198 and 199, Indian Penal Code for filing a false affidavit on oath because the First Class Magistrate before whom the affidavit was sworn had no authority under sections 4 and 5 of the Oaths Acts to administer oath in the matter. The same view was taken in Hemdan v. State of Rajasthan3. In that case it was held that under section 4 of the Oaths Act it is only in the discharge of the duty or in exercise of the powers imposed or conferred upon them respectively by law that Courts as well as persons are authorised to administer oath and affirmation. A Magistrate, having no authority to receive evidence in any matter or upon whom no power is imposed or conferred by law has no authority to administer oath and affirmation. A Third Class Magistrate ha no jurisdiction to receive evidence in proceedings under section 145, Criminal Procedure Code, and as such affidavits to be used before the Sub Divisional Magistrate in proceedings under section 145 cannot be sworn before him. It is the Sub-Divisional Magistrate before whom the proceedings are pending, who has a duty to decide the dispute and to receive evidence in the proceeding. The affidavits can, therefore, be sworn by him or by an officer empowered by him in this behalf and not by any other Magistrate. Therefore, the learned Special First Class Magistrate was right in excluding from consideration the affidavits filed by both the parties. The affidavits can, therefore, be sworn by him or by an officer empowered by him in this behalf and not by any other Magistrate. Therefore, the learned Special First Class Magistrate was right in excluding from consideration the affidavits filed by both the parties. In view of the fact that up till now there is no pronouncement of the High Court on this point, it is proper to send back the case to the Special First Class Magistrate, Chickballapur, so that the parties may have a chance to file proper affidavits. The revision petition is, therefore, allowed and the reference is rejected. The order of the Special First Class Magistrate is set aside and the records are sent back to him to decide it afresh after proper affidavits are filed before him. S.V.S. ----- Petition allowed.