JUDGMENT :

Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of declaration, declaring Rule 12(4), Rule 13, Rule 27(4), (5) and (11), Judicial form No.73 and Rule 93 of the Criminal Rules of Practice, 2019 as ultra vires to the Constitution.

1. By this writ petition, challenge to the constitutional validity of Rule 12(4), Rule 13, Rule 27(4), (5) and (11) and Rule 93 of the Criminal Rules of Practice, 2019 (for short, “Rules of 2019”) has been made.

2. The petitioner, appearing in person, has made a reference to Section 4 of the Oaths Act, 1969 (for short, “Act of 1969”) for challenge to Rule 12(4) of the Rules of 2019. It is submitted that Rule 12(4) of the Rules of 2019 mandates an application under Section 438 Cr.P.C. to be accompanied by a sworn affidavit of the applicant. The Rule aforesaid offends Section 4 of the Act of 1969. Thus, it is to be struck down. A reference to the judgments of the Patna High Court in the case of Ramnath Sahni v. The State of Bihar, Criminal Appeal (DB) No.303 of 2015, decided on 22.04.2015 and the Karnataka High Court in the case of J.Jaikumar, Major v. Yogesh Lemichwal, Major, reported in 1997 STPL (LE-Crim) 4887 Kar have been made.

3. To appreciate the arguments of the petitioner, appearing in person, we are quoting Rule 12(4) of the Rules of 2019 as well as Section 4 of the Act of 1969:

“12. Bail in non-bailable cases.-

(1) ...

(2) ...

(3) ...

(4) Application for relief under section 438 of the Code shall be accompanied by a sworn affidavit of the applicant.”

“4. Oaths or affirmations to be made by witnesses, interpreter and jurors.- (1) Oaths or affirmations shall be made by the following persons, namely:-

(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;

(b) interpreters of questions put to, and evidence given by, witnesses; and

(c) jurors:

Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.”

4. Rule 12 is in Chapter III of the Rules of 2019. As per the said Rules, for bail in a non-bailable offence, the application under Section 438 Cr.P.C should be accompanied by a sworn affidavit. The provision of Section 4 of the Act of 1969 prescribes oaths or affirmations to be made by witnesses. It is not for an affidavit. Section 4 provides that, in criminal matters, an oath or affirmation to the accused person would not be administered unless he is examined as a witness. The provision aforesaid is for the oath or affirmation of a witness and unless the accused stands as a witness, the oath or affirmation is not required. The sworn affidavit required under Rule 12(4) of the Rules of 2019 is not an oath or affirmation before the Court. Thus, Rule 12(4) of the Rules of 2019 is not hit by Section 4 of the Act of 1969.

5. The petitioner appearing in person has made a reference of the judgment of the Patna High Court in the case of Ramnath Sahni (supra), where in paragraph 7, the Patna High