P. N. Bakshi, J. - (1.) THIS application in revision arises out of an order passed by the Magistrate summoning the accused. It appears that a complaint was filed against the applicant for an offence under section 379 IPC. The statement of the complainant and his witnesses was recorded. Thereafter, the impugned order has been passed by the Magistrate summoning the applicant. Hence this revision.
(2.) THE sole point which has been argued in this revision is that the oath which was given to the witnesses in the examination under section 200 CrPC was given by Khayali Ram orderly (Chaprasi), and therefore, these statements are not admissible in evidence. It is hence argued that there is no material before the trial court for summoning the applicant. 'On the other hand, the Government Advocate Sri Girdhar Malviya has submitted that even if the oath was administered to the witnesses by the Chaprasi of the court, at the worst it would be an irregularity curable under section 7 of the baths Act and will not vitiate the proceedings. I have carefully considered the submissions which have been made by the counsel for the parties. Section 4 of the Oaths Act refers to oath or affirmation to be made by the witnesses, interpreters and jurors. Section 6 (1) of the Act is to the effect that all oaths and affirmations made under section 4 shall be administered in one of the forms gjven in the Schedule. Sub-section (2) of Section 6 of the Oaths Act states that all such oaths and affirmations shall, ............be administered by the Presiding Officer of the court himself. The argument which has been raised by the applicant's counsel is that since in the instant case the oath was not administered by the Presiding Officer but by the Chaprasi, therefore, the statement so recorded is not legally admissible in evidence. Reference has also been made to Section 3 of the Oaths Act, which relates to power of courts to administer oaths. Section 3(1) (a) speaks of all the courts entitled to receive evidence, as being empowered to administer oath, either by themselves or by an Officer, empowened by them. Under this section it is obvious that the power to administer oaths can be exercised either by the court or by duly empowered officer. Reading Suction 3 along with Sections 4 and 6 of the Oaths Act, the inference seems to he unavoidable that in cases where the statements of witnesses has to be recorded on oath, the oath should be administered by the Presiding Officer, but in other cases it may also be administered by an Officer empowered by the court.
(3.) COUNSEL for the applicant has in support of his submission cited a decision of Ganpat Dewaji Patil v. Emperor, 1929 Bombay 136. He has relied upon the following observation of that court "Section 13 cures the form of the oath and even an entire omission to take the oath, but does not cure the absence of authority in the officer administering the oath. On this plea it was held in the Bombay case that the statements made by the accused before the Najir of a subordinate court of Yaval, was not legal evidence, because the said statement had been made before an officer without any authority to record the same. It is noticeable that the present case before us does not relate to an affidavit. There can be no two opinion that when an affidavit is sworn before an authority which in law is not authorised to record the same, then such an affidavit can have no legal sanctity and would be nothing more; than waste paper. But in the instant case the factual position is that the statement of the witness is being recorded in the presence of the court which is empowered to record the statement. The only criticism which can be made in this connection is that though the statements has been recorded in the persence of the court yet the oath has not been administered by the court, itself, which should have been done under section 6 (2) of the Oaths Act. Taking the conditions of subordinate courts and the procedure which are being followed day to day therein,, it can not be doubted that the practice of permitting Chaprasis to administer oaths to witnesses who have come to depose before the court, is a most abominable practice. It is likely to lead to an abuse of the process of the court, it can be misused. Instances are not wanting when the statements of 3 to 4 witnesses are being recorded at a time in the presence of a court, at most simultaneously. After oaths had been administered to all of them by the Chaprasis of the courts, it is practically impossible for the Presiding Officer to be attentive enough and do make sure that the statements so recorded are genuine and true statements, made by the deponents. Such an irregularity can even lead to a serious miscarriage of justice. In my opinion, the sooner, this practice is discontinued, the better, it would be for a clean administration of justice. The Goverment Advocate, has however, argued that in the instant case though the statement of the witnesses was recorded on the oath being administered by the Chaprasi, there is at present: no material on the record to indicate that any prejudice has been caused to the accused. His another limb of the argument is that Section 13 (old) which is equivalent to Section 7 of the New Oaths Act, 1979 comes to the rescue of the prosecution. Placing reliance upon it he urges that the administering of oath by the Chaprasi is a mere irregularity and would not be sufficient to make the statement inadmissible in evidence. For this submission he relied upon the phraseology of Section 7 Oaths Act supported by an observation of the Supreme Court in Rameshwar Kalyan Singh v. State of Rajas than, AIR 1952 SC 54 ; "In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency.........Now the Oaths Act does not deal with competency,. Its main object is to render person, who gives false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witnesses the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of Section 118 these matters only touch credibility and not admissibility." ;