An affidavit attested by a Notary Public is permissible for use in the High Court, and the court has the power to consider such affidavits in proceedings.

JUDGMENT :

1) By this order, preliminary objection raised by respondents No.2 and 3 to the maintainability of the instant writ petition is proposed to be determined.

2) The petitioner has filed the instant writ petition challenging order dated 29.07.2022 passed by respondent No.1 in an appeal filed by the private respondents against the petitioner herein.

3) At the very outset, learned counsel for private respondents has raised a preliminary objection with regard to maintainability of the instant writ petition on the ground that the affidavit of the petitioner in support of the writ petition has not been attested and sworn in accordance with the law, inasmuch as the affidavit accompanying the writ petition has been attested by a Notary and not by the Oath Commissioner as required by the provisions contained in the Writ Proceedings Rules, 1997. It has also been contended that the petitioner is an undertrial prisoner, as such, it would have been improbable for the Notary to administer oath to the petitioner inside the jail before attesting the affidavit.

4) Heard and considered.

5) The learned counsel appearing for the private respondents has contended that as per Rule 5 of the Writ Proceeding Rules of 1997, an affidavit in support of a writ petition is required to be attested by an Oath Commissioner but in the instant case, the affidavit in support of the writ petition has been attested by Notary which is not in accordance with law. The learned counsel in this regard has relied upon the judgment of Calcutta High Court in the case of Sudebi Sundari Mondal vs State of West Bengal and Ors., AIR 1983 Cal.1.

6) It has been also contended that, admittedly, the petitioner is an undertrial prisoner in FIR 33/2022 for offences under Section 302, 307, 325, 427 and 34 of IPC of P/S Uri, who is presently lodged in Subsidiary Jail, Baramulla, therefore, without there being any proper permission from the Superintendent of the jail concerned or from the concerned Court, it is improbable to conceive that the petitioner had access to the petition and the affidavit for the purpose of appending his signature thereon and it would have been improbable for the Notary to visit the jail for the purpose of attesting the affidavit and administering oath to the petitioner.

7) The learned counsel appearing for the petitioner, on the other hand, has submitted that even an affidavit supporting a writ petition that has been attested by Notary is legally valid. The learned counsel has submitted that before obtaining signatures of the petitioner on the petition and the affidavit, proper permission was granted by the Court of 1st Additional Sessions Judge, Baramulla, in terms of its order dated 27.05.2023, as such, the objection raised by learned counsel for the private respondents is without any substance.

8) In order to determine the merits of rival contentions of the parties, it would be apt to refer to the provisions contained in Rule 5 of the Writ Proceeding Rules, 1997. It reads as under:

5. Every petition shall be signed by the petitioner(s) and is Advocate. In case the petitioner happens to be illiterate, his thumb impression should be attested by the Advocate. The petition shall be supported by an affidavit or affidavits, as in Schedule I appended to these rules, verifying the facts stated therein by reference to the numbers of the paragraphs of the petition containing the facts. It shall be drawn up in the name of first person and shall be attested by an Oath Commissioner.

While administering oath to the deponent, the Oath Commissioner shall indicate that the contents of the petition were read over to the deponent in the language understood by him and were admitted to be correct. He shall attest the affidavit after proper identification of the deponent. All cuttings on each page of the petition shall be signed/initialled by the Oath Commissioner.

9) From a perusal of the aforesaid provision, it is clear that a petition before the High Court has to be supported