Thursday 20 December 2012

BOMBAY HIGH COURT GUIDELINES REGARDING SWEARING OF AFFIDAVIT


In this view of the matter,
 the Registrar  General  is   directed  to   issue
 administrative instructions to all the  concerned
 oath  officers  working in this Court and also  to
 all the  Districts  and Sessions Courts  and  the
 Courts  working thereunder at taluka places not to
 administer oath or to accept one or two page bare
 affidavit unless  the  same  is in  the  form  of
 affirmation at the foot of petition or application
 or accompanied with the petition or application in
 support of  which  it is  affirmed; with  further
 direction to  see that each and every page  bears
 seal and signature or initial of the oath officer.
 It  is also necessary to issue  directions
 to the State of Maharashtra and all the  District
 Judges to  issue necessary directions to all  the
 Notaries  as  indicated   hereinabove  since  the
 Notaries are  expected to work and operate  under
 the supervision of the State Government as well as
 respective   District    Judges    under    whose
 jurisdiction they are practising as Notary Public.
 The District  Judges  are also expected  to  keep
 supervision on their working as per the provisions
 of the Notaries Act, 1952.  At the same time,  all
 the District Judges are expected to appraise  all
 the Notary Public practising in their jurisdiction
 to  follow  these  directions,  if  necessary,  by
 issuing administrative circular in this behalf.


IN THE HIGH COURT OF BOMBAY
CIVIL APPLICATION NO. 742/2005 IN WRIT PETITION NO.822/ 2004
  Shri Sadashiv Shankar Bhise. V/s. State of Maharashtra.

DECIDED ON:13DECEMBER 2005
CORUM;V C DAGA

 While   hearing this civil application,  it
 has come to my notice that one Shri S.D.Dhanavate,
 Notary,  State   of     Maharashtra,   Pune   had
 administered  oath  to  the   affiant  when   the
 affidavit  was  not accompanied with  the  subject
 civil application.  This is evident from the fact
 that the  affidavit  is  dated  11th  July,  2004
 whereas civil application itself appears to  have
 been drafted and prepared on 8th September,  2004
 i.e. subsequent to the date of affidavit on which
 the   Notary   had  put    his   seal   evidencing
 administration of oath to the affiant.
 In   absence  of  civil  application,  Shri
 Dhanavate, Notary could not have administered oath
 to the  affiant  to  affirm   one  or  two  pages
 affidavit i.e.  a bare affidavit.  Such act on the
 part  of  the  Notary  amounts  to  negligence  in
 discharge of his duty.
 It   is not uncommon that in various taluka
 and district  courts  including   the  places  at
 Mumbai, Nagpur and Aurangabad the oath officers or
 Registrars of the District and Sessions Courts or
 Registrars at  High Court administer oath to  the
 affiant when the affidavit is not accompanied with
 petition or application in support of which it is
 affirmed.  The practice of administering oath  to
 the  affiant   without    the   affidavit   being
 accompanied with the petition or application  (in
 support of  which it is made) gives rise  to  the
 various types  of manipulations and  malpractices
 including  that  of  insertion and/or  removal  of
 pages from the petition or application.
 At  this  juncture, it will not be out  of
 place to  mention  that   while  presiding   over
 Division Bench  at Nagpur on 8th January, 2003  I
 had come  across similar types of  affidavits  in
 Writ Petition  Nos.2963/2001 and  3016/2001.   In
 those petitions, the oath officer had administered 
 oath to the petitioners even though the respective
 affidavits   were   not   accompanied   with   the
 respective petitions.   Consequently,   in  those
 petitions, vide  order dated 8th  January,  2003,
 directions  were  issued to all the  District  and
 Sessions Courts falling within the jurisdiction of
 the Nagpur  Bench not to accept one or two  pages
 bare affidavit  for  administering  oath  to  the
 affiant unless the affidavit is accompanied by the
 substantive petition  or application.  Copies  of
 the said order were also sent to all the District
 and  Sessions   Judges     falling   within   the
 jurisdiction  of  the Nagpur Bench  for  necessary
 action so as to arrest such unhealthy practice.
 At 5.  the  same time, directions  were  also
 issued to the registry of the Bench at Nagpur not
 to accept  any  presentation of any  petition  or
 application unless each page of the petition carry
 seal and signature of the oath officer or Notary.
 Directions  were  also  given not  to  accept  any
 defective petition or application having defective
 affidavit.
 While 6.  sitting at Mumbai, I have also come
 across number of such cases wherein  applications
 or petitions  are  accompanied  by  defective  or
 improper affidavits.  In this view of the matter,
 the Registrar  General  is   directed  to   issue
 administrative instructions to all the  concerned
 oath  officers  working in this Court and also  to
 all the  Districts  and Sessions Courts  and  the
 Courts  working thereunder at taluka places not to
 administer oath or to accept one or two page bare
 affidavit unless  the  same  is in  the  form  of
 affirmation at the foot of petition or application
 or accompanied with the petition or application in
 support of  which  it is  affirmed; with  further
 direction to  see that each and every page  bears
 seal and signature or initial of the oath officer.
 It   is also necessary to issue  directions
 to the State of Maharashtra and all the  District
 Judges to  issue necessary directions to all  the
 Notaries  as  indicated   hereinabove  since  the
 Notaries are  expected to work and operate  under
 the supervision of the State Government as well as
 respective   District    Judges    under    whose
 jurisdiction they are practising as Notary Public.
 The District  Judges  are also expected  to  keep
 supervision on their working as per the provisions
 of the Notaries Act, 1952.  At the same time,  all
 the District Judges are expected to appraise  all
 the Notary Public practising in their jurisdiction 
 to  follow  these  directions,  if  necessary,  by
 issuing administrative circular in this behalf.
 Copies   of  this  order  be  sent  to  the
 Secretary,  Law  and   Judiciary,  Government  of
 Maharashtra and  also all the District Judges  to
 enable them to issue necessary directions to  all
 the Notary Public practising in their jurisdiction
 not to  administer  oath to the  affiant  if  the
 affidavit  is not accompanied with the substantive
 petition or civil application.
 So   far  as  the application  at  hand  is
 concerned,  since  it  does   not   have   proper
 affidavit, the application is rejected.  However,
 it  would be open for the applicant to move proper
 application supported by proper affidavit.
 Civil application stands disposed in terms
 of this order with no order as to costs.
 Copy    of  this  order  be  sent  to   the
 Registrar General for information and action.



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