Affidavit- What is an affidavit And Why, How Should It Be Filed
Affidavit- What is an affidavit And Why, How Should It Be Filed

 

WHAT IS AN AFFIDAVIT?

An affidavit is a written statement which is sworn by an individual making it (deponent) under an oath which is administered by a person of authority. The affidavit can be signed in front of the oath commissioner or the notary public. An affidavit is a very valuable document which is highly honored and approved by whoever it is presented to.

The term affidavit has been widely used among people of diverse background and nationality; however, many are yet to come to terms with the consequences of this document. Many people file an affidavit without being aware of its repercussions or whether they have the authority to do such.

A person providing an affidavit must be fully aware of his/her obligations so he can educate the person who has come to file an affidavit.

WHAT ARE THE DIFFERENT COMPONENTS OF AN AFFIDAVIT?

It is important that we consider the different terms and components that are common in any affidavit.

  • Written statement: All affidavit must be by writing. Any oral statements that are taken as oath before the law does not in any way equals an affidavit. For an affidavit to be used as an evidence before the court it must be written.
  • Affirmation or oath: A solemn promise by the deponent regarding his action must be found in this document.
  • Voluntarily: Affidavit is very binding on the fellow who has sworn to it and thus must be his personal decision. Any affidavit that is taken forcefully shall be invalidated if the aggrieved person can proof the facts before the law.
  • Deponent or affiant: this is the person who is making the affidavit.
  • Notarization: All affidavits must be notarized before the notary office which is authorized by the state or Central government.

WHY DO WE FILE AFFIDAVITS?

An affidavit was originated by the British colonial masters who saw the need for the citizens to put their words into writing to affirm and guarantee the veracity of their claims. It came because of the distrust of the colonial masters had for the words of the citizens. Therefore, affidavits serve as a prove of undertakings since the government does not ideally believe whatever its citizens say.

The affidavit has become a part of our life and is filed by almost every citizen. It has become a common belief that whatever statement is contained in an affidavit is regarded as the truth and necessary actions should be taken on its behalf.

HOW CAN AN AFFIDAVIT BE DRAFTED?

  • The first person should be used in the drafting of an affidavit.
  • It should be divided into paragraphs which are given a specific number.
  • Each paragraph of the document should be specific on each subject.
  • It should mention the names, age, religion, re, residence and occupation of the deponent.
  • Where any alterations are to be made in the document, it must be authenticated by the authority.

WHAT IS THE IMPORTANCE OF AFFIDAVITS TO THE COURT?

  • Orders in courts are passed based on affidavits.
  • They are very useful in court cases except in the passage of the final verdicts.
  • Applications made to the courts under the provisions of legislative enactments are filed and backed by affidavits.

WHO CAN AFFIRM AN AFFIDAVIT?

An affidavit can be affirmed by:

  • Any judge or any executive magistrate
  • Any commissioner of oaths that is appointed by a court of competent jurisdiction or High court in session.
  • Any notary that has been authorized based on the provisions of the Notaries Act 1952.

WHO CAN BE A DEPONENT?

An affidavit must be made only by persons who are fully conscious of the circumstance surrounding the matter of the document. Based on Order 29 rule 1 of the CPC 1908, in matters of Corporations, the Secretary or the Director or any Principal officer is permitted to sign the plaint.

Furthermore, Order 6, Rule 14 states that the signing of any plea should be made by the party and any of his pleader except in cases where the party or the pleader is unable to sign his pleading because of absence or some other acceptable reasons where it may be signed by a person whom he has duly authorized to do so.

In a case between Calico Printers’ Association Ltd and Karim and Brothers ILR 55 Bom 151; AIR 1930 Bom 566, on the completion of the consideration of the decision of the Privy Council, in Delhi and London Bank v. Oldham, 20 Ind APP 139 (PC), it was ruled that Order 29, rule 1 and Order 6 rule 14 can either be applied to matters of a company.

In addition to this, where there is an irregularity or defect in a petition over a signature, such shall be taken as a “procedural irregularity” and shall not be used to discredit the plaint in the suit.

Section 99 of the CPC was applied to affirm the rule that the irregularity was discovered after the suit has been filed.

Therefore, in the matters that concern a corporation; it is the responsibility of the principal officer to sign an affidavit. However, Order 6, rule 4 has allowed an authorized representative to sign.

CAN AN AFFIDAVIT BE ALWAYS USED AS AN EVIDENCE?

Section 3 of the Indian Evidence Act, 1872 does not in any way support the admission of oral affidavits as evidence. In this regard, a court may decide that a fact or presented by a means of an oral affidavit.

In this regard, an affidavit can be referred to as a sworn testimony before the court of law. The only difference it has with an ordinary testimony is that an affidavit must be written.

It is important for you to know that an affidavit is not always an evidence because it is not found in the definition of evidence as provided in Section 3 of the Indian Evidence Act, 1872. Therefore, an affidavit can be admitted as an evidence where the court after it had weighed the available options decides on its usage as provided in Order XIX of the CCP, 1908.

 

CAN A FALSE AFFIDAVIT BE REGARDED AS A FALSE EVIDENCE?

This question was answered in the case between Baban Singh And Anr and Jagdish Singh & Ors. According to the Supreme Court, the definition of the violation of the law in giving out of false evidence also applies to affidavits that are sworn falsely.

 

WHAT ARE THE CONSEQUENCES OF AN AFFIDAVIT?

  • ) An affidavit is personally binding on the deponent.
  • ) It is important that you have full knowledge of the matter contained in the document.
  • Rule 3 of Order 19 of the CCP provides that affidavits shall be confined to the facts that can be proved within the knowledge capacity of the deponent.
  • Where Mr. A swears that he is unaware of the whereabouts of Mr. B, whereas he is fully aware; such shall be deemed as a false affidavit.
  • ) A false affidavit has the same punishment as a false evidence.
  • Section 191 of the Indian Penal Code, 1860 provides that whoever swears falsely by making statements he knows or believes is false given out a false affidavit.
  • Section 193 of the Indian Penal Code, 1860 provides a 7 years imprisonment with the payment of a fine for the giving of a false affidavit.

 

DO WE REALLY NEED AFFIDAVITS?

To the citizen, affidavits impose their costs because money will be spent in buying of stamp paper, paying a deed writer, payment to the public notary and time consumed in getting done with the process.

However, before the eyes of the law; there is nothing special about affidavit since its functions can be replaced by declarations.

A report made by the PGRC has estimated that in Punjab alone, about half of the populace or are involved in the filing of affidavits annually for a certain service.

To assess this number, it could be seen that a total of 20 crore citizens are involved and this can cost up to Rs 400 for each affidavit. Therefore, in India, a total of Rs. 8000 crores could be spent on affidavit alone.

With this, affidavits should be replaced with “self-declarations” for any services that is required in the public utility or agency. Since an affidavit is a declaration, then; a declaration can be much suitable before the law.

Attestation made by the officers are becoming unnecessary because it is the deponent or the signatory that bears the responsibility for the statement that is written.

Public agencies have the advantage of imposing penalties for any wrong statement that is made especially for the suspension of their services such as disconnection of a power line.

The Central government agencies for income tax and passport have been engaged in this practice of imposing penalties on wrong statements or false affidavits.

WHAT HAS BEEN THE ACTION OF THE GOVERNMENT ON THE ABOLITION OF AFFIDAVIT IN PUNJAB?

The Punjab Governance Reforms Commission (PGRC) was established by the government and has so far made recommendations for the abolishing of affidavits for obtaining certain government’s services.

The abolishing of affidavits before certain services are provided to the citizens has contributed to the government’s trust on the words and testaments of its citizens.

In this regard, citizens can now save both the energy, time, and money which could have been spent in obtaining affidavit before getting some services of the government.

In Punjab, a person’s income and details are taken as it is being declared. The State government has made moves to limit the use of the affidavit in determining a person’s place of residence. An Aadhaar card is more preferred in certifying one’s place of residence instead of a village lambardar.

In addition to this, officials of the government who request for travel allowances are no longer required to swear with affidavits on their travel expenses.

However, there are still complaints that some of the government agencies are still demanding for affidavits. The populace is yet to be fully aware of the consequences of affidavits and the rules that are available in each of the states on affidavits.

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