Source: Kerala High Court

Why in News?

In a recent ruling, the Court dismissed a petition seeking to quash proceedings in a case of Don Paul v. State of Kerala. It involves allegations of misappropriation of marital assets. The court emphasized the need for caution by Magistrates in cases involving financial, matrimonial, or commercial disputes, urging verification of allegations before initiating investigations.

• The Court highlighted the importance of supporting applications under Section 156(3) of the Code of Criminal Procedure,1973 (CrPC) with sworn affidavits, aiming to deter malicious litigants.

What was the Background of Don Paul v. State of Kerala?

• The petitioner, the 1st accused filed a Criminal Miscellaneous Case under Section 482 of the CrPC to quash Annexure B final report and all proceedings in C.C.No.878/2019 pending at the Judicial First-Class Magistrate Court-I, Vaikom.
• The case revolves around allegations made in a complaint filed under Section 190 read with Sections 200 to 204 of Cr.P.C by the petitioner's wife.
• The complaint accuses the petitioner of committing an offense punishable under Section 406 of Indian Penal Code, 1860 (IPC).
• Petitioner argues Section 406 IPC not applicable, suggests FIR under Section 154 CrPC instead of private complaint under Section 190 CrPC.
• According to the complaint, the petitioner demanded 75 sovereigns of gold ornaments and Rs.50 lakhs as part of the marriage arrangement. Rs.25 lakhs was handed over on the date of betrothal, and another Rs.25 lakhs was deposited in a fixed deposit jointly held by the petitioner and the complainant.
• Allegedly, without the complainant's consent, the petitioner and another accused encashed the fixed deposit receipts and misappropriated the gold ornaments entrusted to them.
• Police investigated the matter as per the Magistrate's direction under Section 156(3) of CrPC, resulting in the filing of Annexure B final report, alleging an offense under Section 406 of IPC by the accused.
• The Court dismissed the petition.

What were the Court’s Observations?

• Justice A. Badharudeen emphasized the importance of Magistrates exercising caution when considering applications for investigations in cases involving fiscal matters, matrimonial or family disputes, commercial offenses, medical negligence, corruption, or situations where there is significant delay or negligence.
• Where applications under Section 156(3) of CrPC are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.
  • In an appropriate case, the learned Magistrate would be well advised to verify the truth and the veracity of the allegations.
  • Before filing a petition under Section 156(3) of the Code of Criminal Procedure, there must be applications under Section 154(1) and 154(3) of the CrPC.
  • The Court emphasized that the requirement of affidavits would discourage dishonest litigants from filing applications with malicious intent, as false affidavits could result in legal prosecution, thereby deterring casual approaches to criminal courts.
• Additionally, the Court highlighted that the accused's failure to contest the investigation promptly, prior to the police's final report, underscored the subsequent charge under Section 403 Indian Penal Code IPC, which was brought forth only after the investigation's conclusion.

What is an Affidavit?

• About:
  • An affidavit is a written statement of facts made voluntarily, confirmed by the oath or affirmation of the party making it, and signed before a person who is authorized to administer such oaths (such as a notary public or a court officer).
  • It serves as evidence in legal proceedings and is often used to provide information or testimony in court cases when a witness is unavailable to testify in person.
  • Affidavits are considered legally binding documents and carry the same weight as testimony given under oath in court.
  • They are commonly used in various legal matters, including civil lawsuits, criminal cases, and administrative proceedings.
• Authority to Draft Affidavits:
  • Affidavits can be drafted by any individual, only basic prerequisites such as legal age and comprehension of its components.
  • Mental competence is essential to ensure understanding of the affidavit's significance.
  • Affidavits presented by veiled female declarants require proper identification and certification by the relevant authorities for validity.

What are the Types of Affidavits?

Affidavits can be categorized into judicial affidavits and non-judicial affidavits:

• Judicial Affidavit:
  • A judicial affidavit is one submitted or filed in connection with a judicial proceeding, such as a criminal case.
  • A judicial affidavit contains the witness's statement of facts relevant to the case, sworn or affirmed under oath or affirmation, and signed before a competent officer authorized to administer oaths.
  • A judicial affidavit expedites the trial process by minimizing the need for oral testimony and cross-examination of witnesses during trial.
• Non-judicial Affidavit:
  • A non-judicial affidavit is executed outside of any judicial proceeding. It is used for various legal purposes, such as making declarations, affirmations, or statements of fact.
  • Non-judicial affidavits are commonly used in pre-trial stages of legal proceedings, during investigations, or for providing information or evidence to support a claim or defense.
  • These affidavits may be submitted to government agencies, private entities, or individuals for various purposes, such as applications, contracts, certifications, or disputes.
  • Non-judicial affidavits must still be sworn or affirmed before a competent officer authorized to administer oaths, such as a notary public or a court clerk, to be considered valid and legally binding.

What are the Essential Components of an Affidavit?

• Written Form: An affidavit must be documented in writing.
• Declaration by Deponent: It serves as a formal declaration made by the deponent, typically under oath or affirmation.
• Truthfulness: The facts stated in the affidavit must be accurate and true to the best of the deponent's knowledge.
• Sworn Oath: To validate the affidavit, it must be sworn or affirmed before an authorized officer, such as a notary public or magistrate.
• Personal Declaration: An affidavit is always a direct statement made by the deponent and cannot be made on behalf of another individual.

What are the Landmark Case Laws on Affidavits?

• Sheoraj v. A.P. Batra (1955):
  In this case, Allahabad High Court held the following points on position of affidavits as evidence:
  • IEA does not apply to affidavits is not the same thing as to say that affidavits are not evidence. The same preamble which lays down that the IEA does not apply to affidavits contains that the IEA applies to all judicial proceedings in or before any court.
    • Evidence viva voce is no doubt taken in judicial proceedings in or before a court, so that it is possible for the Judge presiding over the Court to central that evidence.
  • For instance, the Judge will disallow inadmissible evidence or leading questions in examination-in-chief.
    • But affidavits, while there appears to be no bar against it, are generally not sworn before the Court in which they are used, but before some other Court or person empowered to administer oath.
    • The aforesaid control of the Court over the deponent according to the rules of the IEA is therefore not possible in the case of an affidavit. That appears to be the reason' why the preamble to the Act lays down that it does not apply to affidavits.
  • Although the IEA does not apply to affidavits, there is no doubt that affidavits are used as a mode of proof.
• Khandesh Spg & Wvg Mills Co. Ltd. v. Rashtriya Girni Kamgar Sangh (1960):
  • The Supreme Court clarified in the case that an affidavit can only be used as evidence if the Court orders so with adequate reasons. Hence, without a specific court order, an affidavit typically cannot be used as evidence.