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Report No. 60

3.6. Indian practice.-

Indian legislative practice also regards "affidavit" as referring to the written statement" on oath" etc., and not to the oath or affirmation. In our procedural codes,-for example, in the Code of Civil Procedure1 "affidavit" means not the process or ceremony (oath or affirmation) but the document which is on oath or affirmation. In the Code of Criminal Procedure, 1898, section 539, both the words "affidavit" and "affirmation" were used, but in the new Code2, only the word "affidavit" is used, in conformity with the draft suggested in the Law Commission's Report.3

1. Order 19, rule 1, Code of Civil Procedure, 1908.

2. Section 297, Cr.P.C., 1974.

3. Law Commission, 41st Report, Vol. I, para. 46.4.

3.7. In the Oaths Act, in the provision1 conferring power to Oaths Act administer oaths or affirmation for the purpose of affidavit, the language used (so far as is material), is as follows:-

"any court, Judge, magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf-

(a) by the High Court, in respect of affidavits, for the purpose of judicial proceedings; or

(b) by the State Government, in respect of other affidavits."

Under the same Act2, a witness, interpreter or juror may, instead of making an oath, make an affirmation. Forms of oath and affirmation are also given in the Schedule to the Act, read with section 6. This discussion is intended to show that the word "affirmation", in the majority of Indian statutes refers usually to the formality substituted for the word "oath". Hence, the word "affirmation" is not appropriate to denote the writing.

1. Section 3(2), Oaths Act, 1969.

2. Section 5, Oaths Act, 1969 (Central Act 44 of 1969).

General Clauses Act, 1897 Back

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