2021 (6) TMI 1162 - HC - Indian Laws

Seeking grant of bail - previous bail application stood rejected mainly on the ground that some cash has been recovered from some of the co-accused and some of the co-accused are still at large - Importance of an affidavit - HELD THAT - Strangely, it is found that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate's clerk-in-charge. Curiously enough, the advocate's clerk has sworn that he is looking after the case on behalf of the petitioner. This Court fails to understand as to how an advocate's clerk can swear an affidavit claiming to be looking after a case before this Court in gross violation of the Orissa High Court Rules. 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 - 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. It is trite law that an affidavit shall always be confined to such facts as the deponent has his own knowledge to prove, except on interlocutory applications, on whose statements of his belief may be admitted, provided that the grounds thereof are stated. 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 - 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. 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. This Bail Application being defective, is accordingly dismissed.

Summary

Issues Involved:
1. Legality of the affidavit filed by an advocate's clerk.
2. Compliance with procedural rules for affidavits.
3. Impact of defective affidavits on bail applications.

Issue-Wise Detailed Analysis:

1. Legality of the affidavit filed by an advocate's clerk:
The court scrutinized the affidavit accompanying the bail application, which was filed by an advocate's clerk, Tophan Pradhan. The court highlighted that an advocate's clerk swearing an affidavit is in gross violation of the Orissa High Court Rules. The court emphasized that an affidavit is a solemn declaration of truth, meant to be executed by someone with personal knowledge of the facts, not an advocate's clerk who lacks such knowledge. The court cited multiple precedents, including the Supreme Court's judgment in Smt. Savitramma v. Cecil Naronha and Anr., which condemned the practice of clerks filing affidavits as improper and inadmissible.

2. Compliance with procedural rules for affidavits:
The court elaborated on the procedural requirements for affidavits as per Order XIX of the Code of Civil Procedure, 1908, and the Orissa High Court Rules. It was underscored that affidavits must be confined to facts within the deponent's knowledge, and any information derived from other sources must be clearly stated. The court noted that the affidavit filed in this case did not meet these requirements, rendering it defective. The court stressed the importance of strict adherence to these rules to ensure the reliability and veracity of affidavits.

3. Impact of defective affidavits on bail applications:
Given the defective nature of the affidavit, the court dismissed the bail application. The court reiterated that affidavits not in compliance with the procedural rules lack probative value and must be rejected. The court directed the Registry to take immediate steps to stop the practice of accepting such affidavits in petitions/applications under the court's original jurisdiction. The court clarified that the dismissal of the bail application due to the defective affidavit should not influence the fair trial of the case, and the petitioner was allowed to file a fresh bail application if so advised.

Conclusion:
The court concluded that:
- Affidavits must be based on the deponent's personal knowledge or clearly stated sources of information.
- An advocate's clerk is not permitted to file affidavits in original jurisdiction matters.
- The defective affidavit led to the dismissal of the bail application, but the petitioner could file a new application.

Final Judgment:
The bail application was dismissed due to the defective affidavit filed by an advocate's clerk. The court directed that future affidavits must comply strictly with procedural rules, and the Registry was instructed to prevent the acceptance of non-compliant affidavits. The petitioner was allowed to file a fresh bail application if desired.