[Affidavits] Ori HC | Is the common practice of advocate’s clerk swearing an affidavit permissible in law? Is there an exception, if yes, upto what extent?

Orissa High Court: S. K. Panigrahi, J., dismissed the bail application being found defective as the affidavit was sworn by the advocate’s clerk.

 The facts of the case are such that FIR was registered against two persons who were arrested in connection with the case alleged commission of offence punishable under Section 395 of the Penal Code, 1860. Previously bail applications moved was filed by the petitioner before the learned SDJM, Koraput as well as the learned Additional Sessions Judge, Koraput which was rejected on the ground that if the petitioner is enlarged on bail, it would hamper the investigation. Aggrieved by the above order, the petitioner filed the instant application under Section 439 of CrPC seeking bail.

The Court found that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate’s clerk-in charge who has sworn that he is looking after the case on behalf of the petitioner.

The Court observed that advocate’s clerk swearing an affidavit claiming to be “looking after” a case before this Court is in gross violation of the Orissa High Court Rules. Chapter VI – General Rules. The Court noted that the Courts have always come down heavily on the practice by initiating contempt proceedings where they have discovered that an advocate’s clerk has falsely signed an affidavit.

What is an affidavit? 

The word “Affidavit” has its roots in a Latin word that literally means to “pledge one’s faith.” 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.

It is observed that 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 and “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”.

The Court observed that the Advocate-client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate. Neither the brief nor is the permission to represent a party to be shared by the Advocate with his clerk. An advocate’s clerk signing an affidavit instead of the party himself or a person designated/authorised by the party or the Advocate holding the Vakalatnama is unacceptable and such attempts to subvert the law is impermissible.

An advocate’s clerk as defined in The Orissa Advocates’ Clerks Welfare Fund Act, 2008 is as under:

“2 – b) “Advocates’ clerk” means a clerk employed by an Advocate and recognized by such authority and in such manner as may be prescribed and who is a member of an Advocates’ Clerks’ Association;”

The Court observed that an advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed. 

The Court relied on judgment Amar Singh v. Union of India, (2011) 7 SCC 69 wherein it was observed

“64. …..perfunctory and slipshod affidavits which are not consistent either with Order 19 Rule 3 CPC or with Order 11 Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik [AIR 1952 SC 317], Barium Chemicals Ltd.[AIR 1967 SC 295] and A.K.K. Nambiar [(1969) 3 SCC 864] and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said Rules.”

Whether an advocate’s clerk is empowered to swear an affidavit?

 The Court relied on judgment Tamizhaga Panchalai Thozhilalar Sangam v. Presiding Officer, 2012 SCC OnLine Mad 3105

“23. Though under the Vakalat, an Advocate is authorised to appear and defend the proceeding, has the duty to represent the proceedings, a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust, by the advocate’s clerk. Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts, enable the pleader’s clerk to file an affidavit on behalf of the litigant. Where the Advocate’s clerk, has committed a bona fide or inadvertent mistake or there is an accidental omission, or typographical error in a pleading by the typist engaged by the pleader in his office, it is the litigant or the pleader, to file an affidavit, explaining the reasons for the said mistake, on the basis of his personal knowledge, or information, as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate, to a Clerk or to a typist, to any other employee, in the Pleader’s office, to act on behalf of a party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit.”

 It was further observed that an advocate’s clerk who has no personal knowledge of the facts of the case, nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form, content and degree of knowledge required to be included in an affidavit, to ensure the reliability and veracity of the same, any affidavit which is not in strict consonance with the same has to be discarded.

Exceptions and their scope

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. In such a situation, the advocate’s clerk is not required to furnish any additional new information or put forth any original fact. That is the only extent to which such an exception may be made.

The Court held the question of an affidavit being filed by an advocate’s clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted.”

Rules of affidavits summarized:

  1. An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge
  2. In certain situations, i.e., in interlocutory applications, if the deponent chooses to rely on other sources on which he bases his belief, the details of such person, document, etc. must clearly be stated and it must be explained how the information was procured;
  3. An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;
  4. If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s Clerk may be accepted as per Rules; and
  5. Any affidavit not in complete compliance with the provisions shall not be relied upon or used.

[Thabir Sagar v. State of Odisha, 2021 SCC OnLine Ori 679, decided on 18-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Ms. Niranjan Lenka , H.K. Mohanta, N. Lenka, P.K. Barik and K.K. Pattnaik,

Advocates For Opposite Party: Mr. S.S. Mohapatra

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