Affidavits affirmed before a Notary Public are not admissible in proceedings under Article 226 of the Constitution of India.

( 1 ) THIS application and the other one in the case of Bidhu Bhushan Mondal v. State of West Bengal and others, having been, moved together and with notice to the learned Additional Advocate General, Mr. Mukherjee has appeared for the respondent State of West Bengal. He has filed his powers.

( 2 ) THE applications as sought to be moved were affirmed before Shri Biswa Nath Banerjee, Notary Public, Murshidabad and as such, a point arose as to whether applications under Article 226 of the Constitution of India can be "affirmed before a Notary Public.

( 3 ) THE Rules of our Court relating to application under Article 226 of the Constitution, lay down that every petition shall be verified by the solemn affirmation by the petitioner or person or persons having cognizance of the facts stated and shall state clearly by reference to the paragraphs of the petition whether the statements are based on knowledge, information and belief, or on records, where a statement is based on information, the source of information should be disclosed and where the statements are based on records, sufficient particulars should be given to identify the records. Such provisions would be available in Rule 14 of the Rules as mentioned above. Rule 35 of the said Rules lays down that unless otherwise ordered, all affidavits shall be filed before the appropriate officer of the Court. No affidavit shall be used unless filed at least 24 hours before the sitting of the Court on the date fixed for the hearing and no affidavit shall ordinarily be read at the hearing unless a copy thereof has been served upon the respondent or his Advocate at least 24 hours prior to such hearing. In the Rules, there is no mentioning of affidavits, which could be affirmed before a Notary Public.

( 4 ) MR. Bagchi, appearing in support of the applications, claimed that in terms of the provisions of the Notaries Act, 1952 and more particularly under Section 8 thereof, read along with Sections 4 and 8 of the Oaths Act, 1873 and those of the provision of the Negotiable Instruments Act, the affidavits in the instant case, as were affirmed before the Notary Public, could be used in. respect of proceedings under Article 226 of the Constitution. It was further claimed by him, that such view is also supported by the provisions of Section 139 of the C. P. C. and more particularly because of Sub-section (aa) of the same, which was inserted by the amendment Act of 1976 and makes it clear now, that in the case of any affidavit under the Code any Notary, appointed under the Notaries Act, 1952 would be entitled to administer oath on affidavit. Mr. Bagchi also, referred to Rule 15 of Part II of Chap. IV of the Appellate Side Rules, which also lay down that no affidavit shall ordinarily he laid at the hearing of the appeal, application or other proceedings, unless a copy thereof has been served upon the other party or his Advocate, 24 hours before such hearing : provided that the rule shall not apply to urgent motions or applications or to motions or applications made ex parte. In view of the Rules framed or formulated by this Court, for matters under Article 226 of the Constitution, I am of the view that R. 15 as mentioned hereinbefore would have no application. In fact, the Rules under Article 226 also make such provisions as above.

( 5 ) MR. Mukherjee, appearing for the respondent State of West Bengal, contended that since Section 141 of C. P. C. as provided in the Code relates to miscellaneous proceedings with regard to suits and includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution, so, not only under that section, but the said section read with Section 139, would make it abundantly clear, that affidavits affirmed before a Notary Public, would not be admissible in a proceeding under Article 226 of the Constitution.

( 6 ) UNDER Section 138 of the Negotiable Instruments Act, 1881, there is no doubt, that the Government o