1. AFFIDAVIT

2. Affidavit: What it is ?
It is a statement or a declaration in writing.
Made under oath or on affirmation.
Before a Court, Magistrate or Officer having authority to administer oath or affirmation.
Who has the power to administer oath or affirmation ?
The answer may be found in Section 3 of the Oaths Act (Act 44 of 1969).
All Courts or persons having by law or consent of the parties, authority to receive evidence, may administer oath or affirmation.
Any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf:
By the High Court in respect of affidavits for the purpose of judicial proceedings.
By the State Governments, in respect of other affidavits.

3. Form of oath/affirmation in case of affidavits.
“I do swear in the name of God
Solemnly affirm that is my name and signature (of mark) and that the contents of my affidavit are true.”
Authorities before whom affidavits may be sworn for the purpose of being used under the Code of Criminal Procedure (Vide Sec.297 Cr.P.C.).
Any Judge or Judicial or Executive Magistrate.
Any Commissioner of Oaths appointed by the High Court or Court of Session.
Any Notary appointed under the Notaries Act, 1952 (Act 53 of 1952).
Affidavits under the Cr.PC may contain:
Facts based on personal knowledge of the deponent.
Facts founded upon belief of the deponent and the grounds of such belief. (Reference Sec. 297 Cr.P.C.).

4. When evidence may be given by affidavit at any trial or inquiry under Cr.P.C:
When the evidence is of a formal character, for example, evidence of a person who took specimen fingerprint of an accused (vide Sec. 296 Cr.PC).
When application against a Public Servant is made. (Sec. 295 Cr.PC).
An application for transfer of a case ought to be supported by affidavit (vide Sec. 407 (3) and 408 (3) Cr.PC).
When affidavit evidence is tendered, the opposite party may file counter-affidavit.
The court may, if it thinks fit, call the deponent for examination as to the facts contained in the affidavit. (Reference Sec. 296 Cr.PC).

5. Affidavits under the Code of Civil Procedure.
Sec. 30 (c) C.P.C provides that the court may order any fact to be proved by affidavit.
This is, however, subject to such conditions and limitations as may be prescribed.
In this context, reference should be made to Order 19 of C.P.C.
Affidavit may be filed in the following matters before a Civil court.
Affidavit in answer to interrogatories (vide Order 11 Rules 8 & 9 C.P.C.).
Affidavit in Discovery and Inspection. (vide Order 11 Rules 13 & 15 C.P.C).
Admission may be made on affidavit.
Affidavit for interlocutory matters, as for example
Attachment before judgment Order 38 Rule 4 of C.P.C.
Temporary Injunction Order 39 Rule 1 of C.P.C.

6. Affidavit and the Indian Evidence Act:
The Indian Evidence Act does not apply to affidavits presented to any Court or Officer.
Affidavit is not evidence under the India Evidence Act. If a Fact is allowed to be proved by affidavit by C.P.C, Cr.PC or any other law, it can be proved by affidavit notwithstanding the provision of the Indian Evidence Act vide 1955 Cr.L.J
Who may administer oath for the purpose of swearing affidavits under the Civil Procedure Code (vide Sec. 139 C.P.C).
Any Court or Magistrate.
Any Notary appointed under the Notaries Act., 1952.
Any Officer or other person whom a High Court may appoint in this behalf.
Any Officer appointed by any other Court which the State Government has generally or specially empowered in this behalf.

7. Affidavit – What the Magistrate, empowered to administer Oaths / Affirmation, should bear in mind:
Affidavit should contain facts personally known to the deponent or it may be based on information from a source which be believes to be correct. The grounds of belief should be stated.
The contents of the affidavit must be read over to the deponent in a language which he understands and vouched by him to be correct (1975 Cr.LJ 948 (950).
Affidavit must be properly verified and must clearly state what is based on knowledge and what is on belief. (1963 (i) Cr.LJ 512 and AIR 1987 SC 294).
The Magistrate must satisfy himself about the identity of the deponent and that the deponent had owned the statements contained in the affidavit.
The endorsement in the affidavit should show that essential formalities had been observed by the Magistrate attesting the affidavit.
Seal of the Magistrate, before whom the affidavit is sworn, should be affixed.
The affidavit should bear stamp as required under the Law.
Scandalous matter should be avoided in an affidavit as far as possible.
When the matter is both scandalous and irrelevant, those may be struck out from the affidavit.
The deponent is responsible for making precise and accurate statements in affidavit and the part or the role assigned to the person entitled to administer oath is no less sacrosanct (AIR 1985 SC 28).

8. Affidavit – evidentiary value.
Unless Law recognizes proof of a fact by affidavit, affidavit evidence is inadmissible, say for instance, actual possession u/s 145 (4) Cr.P.C can not be proved by affidavit.
If the deponent does not produce himself for cross-examination in answer to a demand by other side, the affidavit loses all its value (1955 AII 638).
If affidavits are conflicting, deponents should be summoned for cross-examination to ascertain the truth (AIR 1965 SC 1303).
Contempt Proceedings before the Supreme Court or the High Courts are generally decided on the basis of affidavits (AIR 1955 AII 638).
Writ Petitions may be decided on affidavits and counter-affidavits. If necessary, the Supreme Court or the High Court may order inquiry into alleged facts (1964 SC 1625) or permit cross-examination of the deponent on either side (AIR 1967 SC 295 and AIR 195 SC 27(67).
General principles of appreciation of evidence shall apply as far as possible, to the affidavit evidence, when it is receivable in evidence.
Vague denial in counter-affidavit of an assertion made in the affidavit is no denial.

9. Affidavit and Prosecution:
Law enjoins that persons making statements on oath or solemn affirmation speaks the truth.
To file a false affidavit is a serious wrong and the person who does so can not be said to have respect for sanctity of oath.
A person who binds him on oath to state the truth is bound to state the truth.
Filing false affidavit in a Court in proof of a fact relevant to the judicial proceeding, where affidavit evidence is admissible, is an offence as defined in Section 191 I.P.C. which is known as prejury and which is punishable u/s 193 I.P.C.