JUDGMENT K.N. Srivastava, J.
1. This revision has been laid before us on a reference made by Hon'ble C. D. Parekh, J. The facts of the case lie within a narrow compass. The only point which has been canvassed before us is as to whether an affidavit filed in a case has to be sworn before the Court concerned or before any Magistrate,
2. The learned Judge making the reference was of the opinion that if the law was interpreted to him that the affidavit was filed in a Court has to be sworn only before that Court, then it would certainly result in great inconvenience to the person swearing the affidavit and in this view of the matter, the learned Single Judge was of the opinion that the affidavit may be sworn before any authority contemplated under Section 4 of the Oaths Act and it may be looked into as evidence of the party in a litigation under Section 145, Criminal P. C.
3. Under Section 145(4), Criminal P, C it is only mentioned that the parties are entitled to file documents and affidavits. The Code of Criminal Procedure does not lay down the mode of swearing the affidavit except Sections 539, 539-A and 539-AA of the Code of Criminal Procedure. A perusal of these three sections makes it abundantly clear that these sections relate to affidavits which are sworn before this Court and, therefore, Section 539-AA lays down that an affidavit to be used before any Court other than a High Court under Section 510-A or 539-AA may be sworn or affirmed in the manner prescribed in Section 539 or before any Magistrate. Section 539, Criminal P. C. lays down:
Affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed before such Court or the "clerk of the State", or any Commissioner or other person appointed by such Court for that purpose, or any judge or any commissioner for taking affidavits in any Court of record in "India", or any Commissioner to administer oaths in England or Ireland, or any Magistrate authorised to take affidavits or affirmations in Scotland.
4. In view of this, therefore, recourse have been taken to the Indian, Oaths Act and the Notaries Act, 1952. Section 3 of the Indian Oaths Act reads as below:
3. Power to administer oaths.- (1) The following Courts and persons shall have power to administer, by themselves or, subject to the provisions of Sub-section (2) of Section 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:
(a) all Courts and persons having by law or consent of parties authority to receive evidence;
(b) the commanding officers of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station.
(2) Without prejudice to the powers conferred by Sub-section (1) or by or under any other law for the time being in force, any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits if empowered in this behalf-
(a) by the High Court, in respect of affidavits for the purpose of judicial proceedings; or
(b) by the State Government in respect of other affidavits.
5. A perusal of this section, therefore, makes it abundantly clear that under Sub-section (2) of Section 3, any Court, Judge or Magistrate can administer oath provided that Court, Judge or Magistrate is authorised by the High Court to administer oath or is authorised by. the State Government. No notification has been brought to our notice issued by the High Court or State Government giving such authority to any Court, Judge or a Magistrate and, therefore, Sub-section (2) would not be applicable unless such a notification is issued,
6. Thus we have to fall back upon Section 3 which lays down that affidavits can be administered by Courts in discharge of the duties imposed or in exercise of the powers conferred upon them by law. Any Magistrate cannot administer oath to a person outside his powers and duties. In view of Sub-section (1) of Section 3, a Magistrate who is seized of a case under Section 145, Criminal P. C. can, therefore, only administer oath to a person swearing an affidavit and no other Magistrate who is not seized of the case and who in discharge of duty or power conferred upon him has no jurisdiction over the case can administer oath to a person swearing an affidavit.
7. In this very connection, reference may be made to Section 8(1)(e) of the Notaries Act, 1952 which reads as below:
8(1) A Notary may do by virtue of his office namely:
(e) administer oath to, or take affidavit from, any person;
8. This power being given to the Notaries under the Act is only limited to such persons who are appointed Notaries under this Act and not to Magistrates, Courts or other officers to whom this Act does not apply. In the instant case, oath was not administered to the person swearing the affidavits by any Notary.
9. It is true that inconvenience may be caused to a litigant but the Legislature, in its wisdom, has enacted Section 3(2) of the Indian Oaths Act to relieve the litigant public of such hardships. It is for the High Court or the State Government to issue the necessary notification and unless that notification is issued, the law Courts have to apply the law as it stands and inconvenience, if any, caused cannot be removed by giving an interpretation which the words used in the section do not permit.
10. Our attention was also drawn to certain earlier decisions of this Court. The first case is Wahid v. State . The learned Counsel for the applicant contended that this case was decided prior to the amendment of the Oaths Act in 1969 and, therefore, this decision, being based on the interpretation of the earlier provisions of the Oaths Act, would not at all be applicable. We have discussed in the earlier part of the judgment that even in the amended Act, the power to administer Oath lies with the Magistrate or Court or officer who is seized of the case in exercise of the powers conferred on him or in discharge of the duties imposed upon him, A perusal of Wahid's case goes a long way to show that it is in conformity with the view we have taken.
11. Similar view has been taken in Paramhans Singh v. Mst. Seva 1966 All WR 757. This case came before Uniyal, J. on a difference of opinion between H. C. P. Tripathi and C. B. Capoor, JJ. Uniyal, J. agreed with the view taken by C. B. Capoor, J. and held that affidavits under Section 145, Cr. P. C. were to be sworn before the magistrate who was seized of the case.
12. The latest pronouncement is by Mr, Justice S. D. Singh in Govind, v. State . This case also supports the view we have taken.
13. For the reasons given above, we are, therefore, of the opinion that affidavits in a case under Section 145, Cr. P. C. have to be sworn before the Magistrate who is seized of the case and not before any Magistrate or any other officer not seized of the case unless a notification is issued by the High Court or by the State Government as laid down under Section 3(2) of the Indian Oaths Act.
14. The reference being replied, let the case be laid before the Bench concerned.