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Report No. 28

52. Section 4 and powers of Commanding Officers.-Under section 4(b), proviso (2), the power of a Commanding Officer to administer an oath or affirmation is restricted by two conditions; firstly, that the oath, etc., is administered within the limits of his station, and secondly, that the oath, etc., is such, as a Justice of the Peace is competent to administer. Now, the second condition is slightly obscure, for the reason that the oath or affirmation which a Justice of the Peace is competent to administer in India cannot be ascertained.

The sections in the Code of Criminal Procedure, 1898, which deal with Justices of the Peace (sections 22 to 25) do not lay down the oath or affirmation which a Justice of the Peace is competent to administer.

53. In England, under section 16 of the Evidence Act, 18511, every court, Justice, etc., having, by law or by consent of the parties, authority to hear, receive and examine evidence is empowered to administer oath to all such witnesses as are legally called before them respectively.2

1. Evidence Act, 1851 (14 and 15, Vict., c. 99).

2. The Act of 1851 is not one of the British Statutes which was applicable to India. For a list of such British Statutes, see 5th Report of the Law Commission (British Statutes Applicable to India); See also the British Statutes, etc. Repealing Act, (57 of 1960).

54. It would appear from the proceedings in the Governor-General's Council (at the time when the Bill which led to the existing Act was discussed),1 that there was an old Act-Act 9 of 1836-relating to the Commanding Officer's power to administer oath, and that Act was being repealed by the Bill and the provision contained therein was proposed to be re-enacted in the Bill. As the power of a Justice of the Peace to administer an oath is obscure so far as India is concerned, this part of the proviso should now be omitted.2

1. Gazette of India, (1873), Supp 2, para. 238.

2. See App 1, clause 4.

Indian Oaths Act, 1873 Back

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