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2016 DIGILAW 604 (KER)

Muhammed Shan R. v. District Police Chief

2016-07-13

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

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ORDER : Anil K. Narendran, J. This writ petition has been filed under Article 226 of the Constitution of India, seeking a writ of habeas corpus directing respondents 1 to 4 to produce the body of the alleged detenue who is stated to be under the illegal confinement of respondents 5 and 6, and to set her at liberty. It is averred in the writ petition that the petitioner who is aged 22 years and the alleged detenue have close acquaintance with each other and both of them decided to marry and live together after completion of their B.Teach course. Now, she is being illegally detained by her parents (respondents 5 and 6) to prevent her from getting married to the petitioner. 2. Rule 160 of the Rules of the High Court of Kerala, 1971, which deals with the affidavit in a writ of habeas corpus, mandates that an application for a writ of habeas corpus shall be accompanied by an affidavit of the person restrained stating that the application is made at his instance and setting out the nature and circumstances of the restraint. Going by the proviso to Rule 160, where the person restrained is unable, owing to the restraint, to make the affidavit, the application shall be accompanied by an affidavit to the like effect made by some other person and the affidavit will state the reason why the person restrained is unable to make the affidavit himself. 3. Chapter VI of the Rules of the High Court of Kerala deals with affidavits. Rule 75 of the Rules of the High Court of Kerala mandates that alternations, erasures and interlineations shall, before an affidavit is sworn or affirmed, be authenticated by the persons before whom the affidavit is signed, and no affidavit having therein any alteration, erasure or interlineation not so authenticated, shall, except with the leave of the Court, be filed or made use of in any matter. Therefore, going by Rule 75, any alterations, erasures or interlineations in an affidavit should be made before that affidavit is sworn or affirmed by the deponent concerned and not thereafter. 4. Therefore, going by Rule 75, any alterations, erasures or interlineations in an affidavit should be made before that affidavit is sworn or affirmed by the deponent concerned and not thereafter. 4. Rule 82 of the Rules of the High Court of Kerala, which deals with affidavit on information or belief, mandates that every affidavit shall clearly express how much is a statement of the deponents knowledge and how much is a statement of his belief, as in Form No. 7. The grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be safe to act on the deponents belief. Therefore, in terms of Rule 82, the affidavit accompanying the writ petition should contain a declaration made by the petitioner that, what is stated in the statement of facts is true to his knowledge/on information and belief derived from records and he believes the same to be true. He has also to make a declaration that the documents produced along with the writ petition arc true copies of the original. 5. In the instant case, the affidavit accompanying the writ petition have two interlineations, one at Para 1 and the other at Para 2. The interlineation at Para 1 of the affidavit reads thus: "I am swearing this affidavit for and on behalf of the detenue, who is under illegal custody." The interlineation at Para 2 of the affidavit reads thus: "The documents (Exts. P-1 to P-3) produced herewith are the true copy of the original documents." 6. If a writ petition filed under Article 226 of the Constitution of India seeking a writ of habeas corpus is not supported by an affidavit in terms of Rule 160 of the Rules of the High Court of Kerala, or does not contain the mandatory declarations to be made by the petitioner as to the authenticity of the statement of facts and the documents relied upon, in terms of Rule 82, the Registry has to return the file and then it is for the petitioner to re-present the writ petition with a proper affidavit in terms of die said Rules. Since, by virtue of the provisions under Rule 75 of the Rules, any interlineations in an affidavit is permissible only before that affidavit is sworn or affirmed by the deponent concerned and not thereafter, the lawyer before whom the affidavit is signed cannot be permitted to make any interlineations in that affidavit and to authenticate the interlineations so made. 7. In Dhananjay Sharma v. State of Haryana, (1995) 3 S.C.C. 757 the Apex Court held that filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the foundation of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a Court of law. Later, in Muthu Karuppan v. Parithi Ilamvazhuthi, (2011) 6 S.C.C. 496 the Apex Court expressed die view that filing of a false affidavit should be effectively curbed with a strong hand. In Sciemed Overseas Inc. v. BOC India Ltd., 2016 (1) Scale 264 the Apex Court observed that, though the observation made in Muthu Karuppans case (supra) was made in the context of contempt of court proceedings, the view expressed must be generally endorsed to preserve purity of judicial proceedings. 8. Normally, in writ petitions for habeas corpus, where liberty of a person is at stake, this Court should take a liberal approach in procedural aspects. However, in writ petitions filed though lawyer, this Court can certainly insist strict compliance of the requirements under Rule 160 of the Rules of the High Court of Kerala and that the affidavit contains the mandatory declarations to be made by the petitioner in terms of Rule 82, as to the authenticity of the statement of facts and the documents relied upon, which is highly essential to curb abuse of the process of the Court by tiling of false affidavits or making false statement on oath before this Court. 9. 9. In that view of the matter, we direct the petitioner to substitute the affidavit accompanying the writ petition with a proper affidavit in terms of Rule 160 read with Rule 82 of the Rules of the High Court of Kerala. 10. The learned counsel for the petitioner seeks one week time to substitute the affidavit accompanying the writ petition with a proper affidavit in terms of the said Rules. The Registry shall post the writ petition for admission next week, after incorporating the affidavit filed by the petitioner in terms of this order.