Affidavit in criminal cases must adhere to relevant laws

Section 27(1) of the Nari O Shishu Nirjatan Daman Ain, 2000 and some other criminal laws require 'affidavit' to be filed with the complaint petition. There is no definition of 'affidavit' provided under the Nari O Shishu Nirjatan Daman Ain, 2000 or any other criminal law including the Code of Criminal Procedure, 1898. However, section 3(3) of the General Clauses Act, 1897 provides that 'affidavit' shall include 'affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing'.

The general concept is that every affidavit needs to be notarised by the notary appointed thereof. The Notaries Ordinance, 1961 does not define the word "affidavit". To notarise any instrument, the instrument is generally made in affidavit format. The function of notary is wider than notarising the affidavit only; notarising the affidavit is a part thereof. There is no contention in this Act that every affidavit should be notarised by the Notary Public. In addition, there is no such contention either in the General Clauses Act or any other Act that every affidavit is necessary to be notarised by the notary.

Now the question arises whether the affidavit as required under section 27(1) of the Nari O Shishu Nirjatan Daman Ain, 2000 and some other criminal laws is necessary to be notarised by the Notary. In practice, affidavit is submitted with or without being notarised, and the criminal courts accept both. In this pasture, it is necessary to examine whether criminal laws require any affidavit to be notarised by the notary, or if any affidavit is submitted after notary will be nullified, or having or not-having notary carries out any material difference.

Section 539 of the Code of Criminal Procedure provides that affidavits and affirmations to be used before the High Court Division or any officer of such court may be sworn and affirmed before such court or the clerk of the State or any Commissioner or other person appointed by such court for that purpose, or any Judge, or any Commissioner for taking affidavits in any Court of Record in Bangladesh.

Further explanation to this provision is given under the Criminal Rules and Orders (Practice and Procedure of Subordinate Courts), 2009. Rule 17 provides that 'all petitions, petitions of appeal, affidavits and papers of similar character presented to the Court, be … dated and signed by the person presenting and where necessary, by such other person as may, by law, be required to sign them ….'.

Rules 24-32 further explain the format and requirements of affidavit. Rule 24 provides that 'every affidavit to be used in a Court shall be entitled "In the Court of.......... at.........."' naming such court. Every affidavit shall be drawn up in the first person and divided into paragraphs numbered consecutively, and each paragraph, as nearly as may be, shall be confined to a distinct portion of the subject-matter and should be properly verified. Therefore, it is clear from the said Rule that every affidavit is required to be submitted before the criminal court in accordance with the aforesaid format addressing the court. There is no requirement for notary with the Notary Public. It must address the concerned court.

Every person other than a party in a criminal case or proceeding in which the application is made, making an affidavit, shall be described in such manner as shall serve to identify him clearly and where necessary for this purpose, the affidavit shall contain his full name, age, father's name, profession or trade and place of residence, and shall be subscribed either with a signature in his own hand or his left thumb-impression (Rule 25). Unless it be otherwise provided, an affidavit may be made by any person having cognisance of the facts deposed to, and two or more persons may join in an affidavit, but each shall depose separately to those facts, which are within his knowledge, and such facts shall be stated in separate paragraphs (Rule 26).

When the declarant in any affidavit swears to any fact within his knowledge, he must do so directly and positively using the words 'I affirm (or make oath)' and say (Rule 27). Every affidavit should clearly express how much is a statement of the declarant's knowledge and how much is a statement made on his information or to his belief and must also state the source or ground of the information or belief with sufficient particularity (Rule 28).

Every person making an affidavit, if not personally known to any Judge or Magistrate or any Commissioner of Affidavits/Oaths appointed by the High Court Division or the Court of Sessions shall be identified to such Judge, Magistrate or the Commissioner, as the case may be, by an Advocate or someone known to him and the Judge, Magistrate and the Commissioner, as the case may be, shall state at the foot of the affidavit (a) the name and description of the person identifying, and (b) the time and place of the making of the affidavit (Rule 29).

Where the declarant is a 'Pardanashin' woman, she shall be identified by a person to whom she is known and before whom she is accustomed to appear unveiled and such person shall at the foot of the affidavit certify that the declarant was identified by him and sign his name thereto and shall prove such identification by a separate affidavit (Rule 30).

The person before whom an affidavit is presented shall, before signing, be satisfied that the contents of the affidavit are known to the declarant and that it contains his signature or thumb-impression (Rule 31). Every correction in an affidavit shall be authenticated by the Judge, the Magistrate or the Commissioner of Affidavits/Oaths, as the case may be, before whom it is presented for swearing or affirmation (Rule 32).

Under the circumstances, it is clear that affidavit to be submitted before the criminal court in a criminal case must address the concerned court in the format as prescribed under the Criminal Rules and Orders. This affidavit, however, does not need to be notarised; the notarised affidavit does not debar the concerned criminal court from accepting the same if it is filed in compliance with the provisions of said Rules and Orders. The main contention is that it must fulfill the requirements provided under the Rules and the same should be accepted by the concerned court. If the same is not endorsed by the concerned court in prescribed format, then the notary of the same shall not be sufficient to validate it.

THE WRITER IS AN ADVOCATE, SUPREME COURT OF BANGLADESH.