Judgment

SHINGHAL, J.:- The point for consideration in these appeals by special leave is whether affidavits sworn or affirmed before Magistrates who are not in seisin of the case under Section 145 of the Code of Criminal Procedure, hereinafter referred to as the Code, could be read in evidence under that Section? The High Court has held such affidavits to be inadmissible in evidence, in its impugned judgments D/17-9-1971 and October 7, 1971, and that is why the present appeals by special leave have arisen at the instance of the aggrieved parties.

2. It is not in controversy that in the absence of any specific provision to the contrary in the Code, the affidavits have to be sworn or affirmed in accordance with the provisions of the Oaths Act, 1873. It is also not in controversy that the Oaths Act of 1969 has no application to the controversy.

3. Sub-section (1) of Section 145 of the Code provides, inter alia that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such documents, or to adduce, "by putting in affidavits, the evidence of such persons" as they rely upon in support of their claims. The affidavits contemplated by the sub-section are therefore evidence for purposes of the proceedings before the Magistrate concerned even though the Evidence Act does not apply to them by virtue of the express provision of Section 1 of that Act.

4. Chapter XLVI of the Code deals with miscellaneous matters including the affidavits referred to including the affidavits referred to in Sections 539, 539-A and 539-AA. Section 539 deals with courts and persons before whom affidavits and affirmations to be used before whom affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed. Section 539-A relates to affidavits in proof of conduct of public servants, while Section 539-AA relates to the authorities before whom affidavits to be used under Section 510A or 539-A may be sworn or affirmed. An affidavit under Section 145 is not however of a formal character because it is meant to prove or disprove the competing claims of the parties as respects the fact of actual possession of the subject of dispute. There is thus no provision in the Code specifying the courts or persons before whom the affidavits referred to in Section 145 have to be sworn and affirmed. This has therefore to be done according to the general provisions relating to affidavits.

5. The definition of "affidavit" in Section 3 (3) of the general Clauses Act (Act X of 1897) only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. But it is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation. It is here that Section 4 of the Oaths Act comes into operation which provides as follows -

"4. The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law :-

(a) all Courts and persons having by law or consent of parties authority to receive evidence;"

Then follow clause (b) and a proviso, with which we are not concerned.

6. It is therefore clear that all Courts and persons having by law or consent of parties authority to receive evidence are authorised to administer oath and affirmations, but they can do so only where they are otherwise acting "in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." So the Court or person mentioned in clause (a) of Section 4 of the Oath Act can administer oath or affirmation to the deponent in an affidavit only if the Court or person is acting in the "discharge of the duties or in