The main legal point established is the strict adherence to the rules governing affidavits, the prohibition of advocate's clerks signing affidavits, and the impact of non-compliance on the court's decision.

JUDGMENT

S. K. Panigrahi, J. - The petitioner has filed the instant application under Section 439 of Cr. P.C seeking bail in connection with G.R. Case No.951 of 2020 pending in the Court of the learned SDJM, Koraput corresponding to Koraput Sadar P.S. Case No.120 of 2020. The petitioner is accused in connection with the alleged commission of offence punishable under Section 395 of the IPC.

2. Fir was registered against unknown persons in FIR No.120 of 2020 before Koraput Sadar P.S. Two persons, namely, Dhananjay Nayak and Surendra Sagar, were arrested in connection with the case, during the course of investigation. It is submitted that, thereafter, the petitioner was arrested and taken into custody on 13.11.2020 on the basis of the statement of the abovementioned accused.

3. Previous bail applications moved by the petitioner before the learned SDJM, Koraput as well as the learned Additional Sessions Judge, Koraput stood rejected mainly on the ground that some cash has been recovered from some of the co-accused and some of the co-accused are still at large. The learned Judge is of the view that if the petitioner is enlarged on bail, it would hamper the investigation. Aggrieved by the above order, the petitioner has approached this Court.

4. Strangely, we find that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate's clerk-incharge. Curiously enough, the advocate's clerk has sworn that he is looking after the case on behalf of the petitioner. This Court fails to understand as to how an advocate's clerk can swear an affidavit claiming to be "looking after" a case before this Court in gross violation of the Orissa High Court Rules.

5. 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. Further, every High Court, in furtherance of its own requirements from an affidavit, has framed its own Rules. 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. While it is permissible that if the knowledge is not personal, it can be gathered from other sources (provided details of the sources are mentioned), it is in flagrant violation of rule of law to execute an affidavit without having any knowledge of the averments made therein. Courts rely heavily on affidavits and their ensuing probative value for the smooth administration of justice. Noting the importance of an Affidavit, 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.

6. Recently, it is noticed that there has been a growing trend of advocates' clerks signing affidavit for applications/petitions/counter affidavits etc. imperviously and oblivious of the contents therein. A Vakalatnama to represent a party in Court is held by an Advocate and the brief is entrusted to the Advocate. 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' Assoc