PROCEDURAL LAWS

Affidavit

Introduction

An affidavit is voluntarily made without any cross-examination of the deponent before a person authorised to administer oath. The Indian Oaths Act, 1873 is applicable to all oaths and affidavits along with section 297 of the Code of Criminal Procedure, 1973 in criminal matters and Order XIX of CPC in civil matters and the Notaries Act, 1952 for notary affidavits and in addition to these legislations, there civil court rules and high court rules in States governing the affidavits. Affidavits shall be confined to matters known to the personal knowledge of the deponent and the facts based on belief. The deponent shall state separately such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true and in the latter case, the deponent shall clearly state the grounds of such belief. The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended. The scope of this article is to understand the affidavits.

Provisions Governing Affidavits

(a)      Section 297 of the Cr.PC provides the Authorities before whom affidavits may be sworn.

Affidavits to be used before any Court under this Code may be sworn or affirmed before-

(a)      Any Judge or any Judicial or Executive Magistrate, or

(b)      Any Commissioner of Oaths appointed by a High Court or Court of Session, or

(c)       Any notary appointed under the Notaries Act, 1952 (53 of 1952 ).

(b)      Order XIX of the Code of Civil Procedure, 1908

Rule 1.         Power to Order any point to be proved by affidavit

 Any court may at any time on the grounds of sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable.

Rule 3          Matters to which affidavits shall be confined.

Sub rule (1) provides that an 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.

The Basis of Facts

An affidavit is based upon either the personal knowledge of the deponent or his or her information and belief. The information based on the personal knowledge of the deponent is the recognition of particular facts by either direct observation or experience whereas the statements made on the basis of information received and belief is what the deponent feels he or she can state as true, although the same is not based on firsthand knowledge.

The Deponent

1. Eligible to be Deponent: Any person having the intellectual capacity to take an oath or make an affirmation and who has knowledge of the facts that are in dispute may make an affidavit.

2. Age of Deponent: There is no age requirement for tendering an affidavit. As long as a person is old enough to understand the facts and the significance of the oath or affirmation he or she makes, the affidavit is valid.

3. Tendering of an affidavit by a Criminal Convict: A criminal conviction does not make a person incapable of making an affidavit, but an adjudication of incompetency does.

4.Deposition by an Authorised Representative: Someone familiar with the matters in question may make an affidavit on behalf of another, but that person's authority to do so must be clear. A guardian may make an affidavit for a minor or insane person incapable of doing so. An attorney may make an affidavit for a client if it is impossible for the client to do so. When necessary to the performance of duties, a personal representative, agent or corporate officer or partner may execute an affidavit that indicates the capacity in which the deponent acts. A court cannot force a person to make an affidavit, since by definition an affidavit is a voluntary statement.

Authority to Prepare the Affidavit

Any public officer authorized by law to administer oaths and affirmations may take affidavits. An officer cannot take affidavits outside of the particular jurisdiction in which he or she exercises authority. The source of this authority must appear at the bottom of the affidavit. A notary, for example, would indicate the county in which he or she is commissioned and the expiration date of the commission. An official seal is not essential to the validity of the affidavit but may be placed on it by the proper official.

The Oath or Affirmation

Unless otherwise provided by statute, an oath is essential to an affidavit. The statement of the deponent does not become an affidavit unless the proper official administers the oath.

Contents

There is no standard form or language to be used in an affidavit as long as the facts contained within it are stated clearly and definitely. Unnecessary language or legal arguments should not appear. Clerical and grammatical errors, while to be avoided, are inconsequential. The affidavit usually must contain:

·      The address of the deponent

·      The age of the deponent

·      The date that the statement was made

·      The Deponent's signature or mark.

·      Where the affidavit has been made is also noted.

·      When an affidavit is based on the deponent's information and belief, it must state the source of the deponent's information and the grounds for the deponent's belief in the accuracy of such information. This permits the court to draw its own conclusions about the information in the affidavit.

The deponent is strictly responsible for the truth and accuracy of the contents of the affidavit. If false statements are made, the affiant can be prosecuted for perjury.

Purpose of an Affidavit

Affidavits are used in business and in judicial and administrative proceedings.

Generally affidavits are used in business whenever an official statement that others might rely upon is needed.

Judicial Proceedings

Affidavits serve as evidence in civil actions and criminal prosecutions in certain instances. They are considered a very weak type of evidence because they are not taken in court, and the deponent is not subject to cross-examination. Their use is usually restricted to times when no better evidence can be offered. If a witness who has made an affidavit is not available to testify at a trial, his or her affidavit may be admitted as evidence. If the witness is present, his or her affidavit is inadmissible except when used to impeach the witness's testimony, or to help the witness with past recollection of facts. An affidavit based on the knowledge of the deponent is accorded more weight than one based on information and belief. When admissible, affidavits are not conclusive evidence of the facts stated therein.

Conclusion

Thus, important things to remember before tendering facts on affidavit are that the deponent is sure about the authenticity of the facts stated therein. Further, the affidavit would clearly state what part of the facts are stated on the basis of the personal knowledge of the deponent and what part of it is based on belief. The affidavit, if drawn on behalf of another person, then the authority to do so should be clearly stated. Therefore, the affidavit may not be strong evidence but the same can throw light on the veracity of the statements stated by the deponent.

This article is a prepared after research and due diligence of the author who is Partner of the law firm LEGAL IMPERIALS.  Jyoti is Head of the Litigation Desk of the firm and is a Legal Aid Advocate for District Court. She is author of legal column in different reputed magazines and can be approached at the e-mail id jyoti.partner@legalimperials.com