While reiterating the significance of personal affidavits of parties and their ensuing probative value in the smooth administration of justice, a Single Judge Bench of Justice SK Panigrahi of Orissa High Court has, in the judgment titled Thabir Sagar v. the State of Odisha, held that the practice of Advocate’s clerks filing affidavits on behalf of parties is unacceptable. Such a practice is in gross violation of Rule 26 of the Orissa High Court Rules. It has therefore rightly directed its Registry to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court.
Factual Background
The petitioner filed the instant application under Section 439 of Cr. P.C seeking bail in connection with a case pending in the Court of the learned SDJM, Koraput. The petitioner was accused in connection with the alleged commission of an offence punishable under Section 395 of the IPC.
Reasoning & Decision of the Court
The Court noted that,
“An affidavit is an affirmation of truth. It is a willing declaration made in writing, signed by a deponent, and accompanied by an oath to prove the veracity of its contents. In India, the law on affidavits is governed by Order XIX of the Code of Civil Procedure, 1908. Further, every High Court, in furtherance of its own requirements from an affidavit, has framed its own Rules. The very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge."
The Court further noted that while it is permissible that if the knowledge is not personal, it can be gathered from other sources (provided details of the sources are mentioned), it is in flagrant violation of rule of law to execute an affidavit without having any knowledge of the averments made therein. Courts rely heavily on affidavits and their ensuing probative value for the smooth administration of justice.
"Noting the importance of an Affidavit, courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge.”
Alarmingly, the Bench then noted with concern in para 6 that,
“Recently, it is noticed that there has been a growing trend of advocates’ clerks signing affidavit for applications/petitions/counter-affidavits etc. imperviously and oblivious of the contents therein. A Vakalatnama to represent a party in Court is held by an Advocate and the brief is entrusted to the Advocate. The Advocate-client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate. Neither the brief nor is the permission to represent a party to be shared by the Advocate with his clerk."
"Similarly, an advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed."
It was further noted by the Court that,
“An affidavit is an accepted mode of placing evidence before the Court. A party uses an affidavit to prove a fact or facts before the Court. Perforce, such an affidavit should always be in accordance with the prescribed Rules.
The purpose underlying the Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief. This is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit, in the right perspective.
It is for this very reason that a party swearing an Affidavit must disclose as to what facts are true to his personal knowledge, information or belief. If the statement of fact is based on information, such source of information must be disclosed in the affidavit. An affidavit which does not comply with these provisions has no probative value and it is liable to be rejected. An advocate’s clerk who has no personal knowledge of the facts of the case, nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form, content and degree of knowledge required to be included in an affidavit, to ensure the reliability and veracity of the same, any affidavit which is not in strict consonance with the same has to be discarded.”
Coming to the factual aspects of the matter, the Court noted,
“It is clear that Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers, as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review, a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate’s clerk.
This specific exception was made, perhaps, keeping in mind that in certain cases, as aforementioned, the records of the case are already present in the records of the Court. In such a situation, the advocate’s clerk is not required to furnish any additional new information or put forth any original fact.
That is the only extent to which such an exception may be made. Since the Rules made by different High Courts have to be in conformity with Order XIX of the CPC, which broadly deals with affidavits, this exception envisaged in the Orissa High Court Rules is restricted in its use. In all cases arising out of the original jurisdiction of the Court, including any other matter which does not fall under the categories expressly provided for in the proviso to Rule 4(iii), the question of an affidavit being filed by an advocate’s clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted.”
“Furthermore, a perusal of Rule 14 and Rule 15 of the Orissa High Court Rules which lays down how an affidavit is to be framed by the declarant, the Court while accepting the affidavit of a declarant casts a strict responsibility on them to make certain disclosures to ensure that the facts, statements, etc. contained in the affidavit are based on personal knowledge or on belief which can be traced back to its sources. Even then, the affidavit will be subject to Rule 26. Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise. It has rightly been left out in the Rules which specify that only the petitioner/ declarant or an advocate can sign such an affidavit.”
HELD
“This practice of advocate’s clerks filing affidavits is unacceptable. The Registry is directed to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court, made in gross violation of Rule 26 of the Orissa High Court Rules.”
The Court made the following observations,
"i. An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge;
ii. In certain situations, i.e., in interlocutory applications, if the deponent chooses to rely on other sources on which he bases his belief, the details of such person, document, etc. must clearly be stated and it must be explained how the information was procured;
iii. An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;
iv. If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s Clerk may be accepted as per Rules; and
v. Any affidavit not in complete compliance with the provisions shall not be relied upon or used.”
The bail application was dismissed.
Case Details
Case Name: Thabir Sagar v. State of Odisha
Case No.: BLAPL No. 748 of 2021
Date of Decision: 18 June 2021
Picture Source :
