How to File an Affidavit: A Guide

How to File an Affidavit

Author: Kunwar Bir Singh, UILS, Panjab University, Chandigarh

Definition of Affidavit

An affidavit is a written sworn statement of fact voluntarily made by a deponent under an oath or affirmation administered by a person authorized to do so by law. Such a statement is witnessed as to the authenticity of the deponent’s signature by a taker of oaths, such as a notary public or commissioner of oaths. The administration of oath is the most essential prerequisite of an affidavit. An affidavit is different from a bare declaration. There needs to be something which tantamounts to the administration of an oath. There must be some overt act which shows that (i) there was an intention to take an oath, and (ii) an intention to administer it. Mere intention unaccompanied by the unambiguous acts is not enough.

Civil and Criminal Proceedings

In civil proceedings which are governed by the Code of Civil Procedure, 1908, an affidavit can be sworn before the persons as mentioned in section 139 of the said code. Section 139 reads as follows

In the case of any affidavit under this code-

(a) any court or magistrate, or

(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other court which the State Government has generally or specially empowered in this behalf may administer the oath to the deponent.

And in case of criminal proceedings, only the persons mentioned by the Code of Criminal Procedure can have the privilege to get the affidavits sworn in front of them.

In Chhotan Prasad v. Hari Dusadh[1], it was held by the Apex Court that affidavits were sworn or affirmed before magistrates who are not in seisin of the case under section 145 of the CrPC, 1973, such affidavits are held to be inadmissible.

Essentials of Drafting

The importance of proper drafting in law is of cardinal importance. This is particularly true when it comes to affidavits. The basic purpose underlying the affidavits is to present the essential facts briefly. Brevity, clarity, and simplicity are the hallmarks of an effective leader. Moreover, in a writ petition, the importance of affidavit assumes gigantic significance. Now the next question arises that what could be the fundamental rules of writing an affidavit. These could be enumerated as follows-

1). Only material facts should be stated.

2) Only facts and not arguments should be stated.

3). The statement of facts should be clear and logical and should be in brief.

Affidavits are used for various purposes so there is a lot of room for different techniques but the most important thing is to avoid legal jargon and should be couched in ordinary English.

Structure of an Affidavit

An affidavit consists of 4 main portions:

1). Heading– The heading of the affidavit should be identical with the heading of the cause of the matter in which it is sworn as been held in In Re Brichkman[2]. But in case the parties are to numerous then only the name of the first party needs to state and then suffix “others” can be used.

2). Names of Parties- Every affidavit needs to be stated in the first person and unless the court otherwise directs, must state the place of residence and occupation. If he is in a professional capacity then the address of the place where he works can be given.

3). Main Part of the affidavit– It is desirable that the main part should be written in paragraphs and it should state the sources of knowledge unless the law otherwise provides. Hearsay should not appear in the affidavit. It may contain statements of information or belief but the grounds for belief need to be mentioned.

4). Verification- The verification clause should not be neglected in any circumstance. The factual version could be rejected if the verification is not in a proper form. It is the duty of the lawyer as an advisor to draw attention to mental verification of the facts by the deponent. Affidavits which are not verified are not admissible in evidence as held in A.K.K. Nambiar v. Union of India[3].

Filing of affidavit before a tribunal

Section 19 of the Arbitration and Conciliation Act,1996, states that Arbitral Tribunal is not bound by the CPC or the Evidence Act but in a catena of judgments it has been held that the tribunal cannot ignore the principles of natural justice. Though no provision of evidence act is applicable in the proceedings of the arbitral tribunal, however, it can take into consideration the provisions related to relevancy and admissibility as a piece of evidence. The stage of evidence is dealt with by Order 18 of CPC and Order 19 lays down the procedure for the admission of evidence by way of affidavit. It has been held in the Apex Court decision of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra[4] that though the evidence can be adduced by way of affidavit, it cannot be relied upon until the deponent is available for cross-examination. It has also been held by the Hon’ble Supreme Court in Munir Ahmed v. State of Rajasthan[5] that in the case of a living person, the evidence must be tendered by calling the witness to the stand and not by submission of affidavit unless the law permits the same. Furthermore, it has been held by the Hon’ble Allahabad High Court in Brijlal v. State of UP[6]that affidavit of evidence must contain the evidence of the deponent as to such facts only, of which he is in a position to speak from his own knowledge.

In one of the most important judgments delivered by Gauhati High Court, it has been held defect in terms of improper affidavit strikes at the roots at the root of the dispensation of justice and the same is held to be mischievous. Even though such improper affidavit cannot be always held to be illegality since the court need not see the case with the procedure- centric approach.

Conclusion

In the case of Uday Shankar Triyar v. Ram Kalewar Prasad Singh[7], it has been held that procedural defects which are curable in nature should not be allowed to defeat the substantive rights and it should not be the ground to reject the petition outrightly. Affidavits need to be tendered in court only after the due exercise of mental faculties have been attended to by the deponent as well as his lawyer so that the credibility of the said document increases.

References

1). A.I.R 1977 S.C. 408 at 409.

2). (1982) 1 All E.R. 336 at 337.

3). A.I.R 1970 S.C. 652.

4). (2013) 4 SCC 465

5). 1989 Supp (1) SCC 387

6). AIR 1954 All 393

7). (2006) 1 SCC 75

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