AFFIDAVITS AND ITS DRAFTING

(Term paper towards the fulfillment of project in the subject of Drafting, Pleading and
Conveyancing)

Submitted By: Submitted To:

Vaibhav Gadhveer Dr. Anjali Thanvi
B.A. LL.B. (Criminal Hons.) Faculty of Law
Roll No. 1596 National Law University,
Anshul Chauhan Jodhpur
B.A. LL.B. (Criminal Hons.)
Roll No. 1538

National Law University, Jodhpur

(Winter session)
(January-May, 2022)

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 ACKNOWLEDGEMENT

On the completion of this project, we find that there are many persons to whom we would
like to express our gratitude, since without their help and co-operation the success of this
educative endeavor would not have been possible.

We welcome this opportunity to express our sincere gratitude to our teacher and guide, Mrs.
Anjali Thanvi, Faculty of Law, who has been a constant source of encouragement and
guidance throughout the course of this work.

We are grateful to the IT Staff for providing all necessary facilities for carrying out this work.
Thanks, are also due to all members of the library staff for their help and assistance at all
times.

We are also grateful to all our friends and colleagues for being helpful in their differences and
for their constant support.

~ Vaibhav Gadhveer and Anshul

Chauhan

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 INTRODUCTION
Affidavit means a solemn declaration of a statement made on oath. “An affidavit is an oath in
writing signed by the party deposing, sworn before and attested by him who hath the
authority to administer the same.”1 An affidavit is a written statement in the name of a
person called the deponent by whom it is voluntarily signed and sworn to or affirmed.

“Affidavit” shall include affirmation and declaration in the case of persons by law allowed to
affirm or declare instead of swearing. 2 Affidavit is a self-declaring written statement or a
document which is sworn and affirmed before an authority who has the power to administer
an oath. The person who makes the affidavit is called a deponent/affiant. The deponent must
swear or affirm the contents of the affidavit as true and correct before the authority
administering the oath.

Affidavit should contain only the information/declaration pertaining to which the

deponent/affiant has personal knowledge. Any hearsay information or information which is
not correct cannot be included in an affidavit. When the deponent deposes on the basis of
information received from others, he must clearly mention so by using specific words like “I
am informed”.

Affidavit is treated as “Evidence” within the meaning of section 3 of the Evidence Act.
Affidavits are required to be sworn in by the parties not only in court proceedings but for
numerous other purposes also, e.g., to change one’s own name/surname, to obtain a birth
certificate, to banks while applying for loans, admission to university, driving licence,
passport etc.

If the court permits any fact to be proved by affidavit, there is a duty enjoined upon the court
to permit the cross-examination of such deponent where any party bonafide desires
production of witnesses for such cross-examination.3

1
Aiyar Concise Law Dictionary 2003.
2
S 3(3), General Clauses act, 1897.
3
Resources International (Regd. Partnership Firm) v Ana Bertha Do Rego E Fernandes, 2014 (2) MLJ 164.

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 AFFIDAVITS UNDER THE CODE OF CIVIL PROCEDURE
Section 139 of Civil Procedure Code enumerates as to who can administer oath to the affiant.
Only when the authorities as specified herein below administer the oath, the affidavit will be
valid and legal.4

Section 139 of the Code of Civil Procedure, 1908 lays down as to who can administer oath.

In the case of any affidavit under this Code—

(a) any Court or Magistrate, or

(b) any notary appointed under the Notaries Act, 1952 (53 of 1952); or
(c) any officer or other person whom a High Court may appoint in this behalf, or
(d) any officer appointed by any other Court which the State Government has generally
or specially empowered in this behalf, may administer the oath to the deponent.

Order XIX of the Code of Civil Procedure, 1908 lays down the provisions as to what can be
proved by an affidavit. Order XIX, which deals with affidavits states5:

1. Power to order any point to be proved by affidavit—

Any court may at any time, for sufficient reason, order that any particulars fact or
facts may be proved by affidavit, or that the affidavit of any witness may be read at
the hearing or such conditions as the court thinks reasonable.
Provided that where it appears to the court that either party bona fide desires the
production of a witness for cross examination & that such witness can be produced,
an order shall not be made authorising the evidence of such witness to be given by
affidavit.
2. Power to order attendance of deponent for cross-examination
i) Upon any application, evidence may be given by affidavit but the court may,
at the instance of either party, order the attendance for cross examination of
the deponent.
ii) Such attendance shall be in court unless the deponent is exempted from
personal appearance in the court or the court otherwise directs.
3. Matters to which affidavit shall be confined—

4
S 139, Code of civil procedure, 1908.
5
Order XIX, Code of Civil procedure, 1908.

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 i) Affidavit shall be confined to such facts as the deponent is able to his own
knowledge to prove, except on interlocutory applications on which statements
of his belief may be admitted provided that the grounds thereof are stated.
ii) The costs of every affidavit, which shall unnecessarily set forth matters of
hearsay or argumentative matter, or copies of extracts from documents, shall
(unless the court otherwise directs) be paid by the party filing the same.

Section 26(2) read with O VI rule 15(4) of the Code of Civil Procedure provides that an
affidavit in support of the factual base of the case would have to be filed along with the
plaint. A plaint will not be entertained without an affidavit in proof of facts stated in the
plaint. A party becomes bound by the contents of his affidavit.6

Affidavit fixes an additional responsibility on a deponent about the truth of facts stated. A
fresh affidavit is required on amendment. Affidavit so filed, however, would not be evidence
for the purpose of the trial.7

6
S 26(2), Code of civil procedure, 1908 and Order VI rule 15(4), Code of civil procedure, 1908.
7
Salem Advocate Bar Association v UOI, AIR 2005 SC 3353 (3357).

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 AFFIDAVITS UNDER CRIMINAL PROCEDURE CODE
Just like civil proceedings, evidence can be given in the form of an affidavit even in case of
criminal trials. The evidence which is of a formal character and which does not require any
further detail enquiry can be proved with the help of an affidavit.

As per Section 296, the Evidence of formal character on affidavit8

1. The evidence of any person whose evidence is of a formal character may be given by
affidavit and may, subject to all just exceptions, be read in evidence in any inquiry,
trial or other proceeding under this Code.

2. The Court may, if it thinks fit, and shall, on the application of the prosecution or the
accused, summon and examine any such person as to the facts contained in his
affidavit.

Section 297 enumerates the authorities before whom affidavits may be sworn:9

1. Affidavits to be used before any Court under this Code may be sworn or affirmed
before—
(a) any Judge or any Judicial or Executive Magistrate, or

(b) any Commissioner of Oaths appointed by a High Court or Court of Session, or

(c) any notary appointed under the Notaries Act, 1952.10 

2. Affidavits shall be confined to, and shall state separately, such facts as the deponent
are able to prove from his own knowledge and such facts as he has reasonable ground
to believe to be true, and in the latter case, the deponent shall clearly state the grounds
of such belief.

3. The Court may order any scandalous and irrelevant matter in the affidavit to be struck
out or amended.

8
S 296, Criminal Procedure Code, 1973.
9
S 297, Criminal Procedure Code, 1973.
10
See, The Notaries Act, 1952(53 of 1952).

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 FALSE AFFIDAVIT
False affidavit is construed as a positive assertion, made with definite intent to pass off a
falsity and if possible, to gain advantage.11 If an affidavit filed before a Court is untrue, it
amounts to obstructing and interfering with the due course and administration of justice,
because the Judge, going by the affidavit filed, can deliver / pass a wrong judgment / order.
The Supreme Court has held in its pronouncements that filing of false affidavit amounts to
criminal contempt.12

In Dhananjay Sharma v. State of Haryana & Ors.13, the Supreme Court took a serious view of
filing of false affidavit or making false statement in Courts and held that it is an assault on the
rule of law and such conduct cannot be left unnoticed as this can shake public confidence in
the fair administration of justice. The Court observed:

“The swearing of false affidavits in judicial proceedings not only has the tendency of causing
obstruction in the due course of judicial proceedings but has also the tendency to impede,
obstruct and interfere with the administration of justice. The filing of false affidavits in
judicial proceedings in any court of law exposes the intention of the concerned party in
perverting the course of justice. The due process of law cannot be permitted to be slighted
nor the majesty of law be made a mockery by such acts or conduct on the part of the parties
to the litigation or even while appearing as witnesses. Anyone who makes an attempt to
impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting
to the filing of false evidence, commits criminal contempt of the court and renders himself
liable to be dealt with in accordance with the Act.”

In Mohan Singh v. Amar Singh Through The Lrs. 14, taking note of the fact that a false
affidavit has been filed, the Court directed initiation of criminal proceedings against the
appellant observing that “tampering with the record of judicial proceedings and filing of
false affidavit, in a court of law has the tendency of causing obstruction in the due course of
justice”.

Consequences Of Filing a False Affidavit

A false affidavit is one in which a person deliberately swears false and frivolous statements to
be true, correct and accurate in an affidavit and signs it, in order to deceive and mislead the
11
Murray & Co. v. Ashok Kr. Newatia & Anr. AIR 2000 SC 833.
12
See: M. C. Mehta v. Union of India & Ors., AIR 2003 SC 3469.
13
Dhananjay Sharma v. State of Haryana & Ors., AIR 1995 SC 1795.
14
Mohan Singh v. Amar Singh Through The Lrs., AIR 1999 SC 482,

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Court. This causes inordinate delay in proceedings and is a clear misuse of the judicial
process. Filing of false affidavit is an offence of perjury under the provisions of the Indian
Penal Code. It is a criminal offence under Section 191,193,195,199 of Indian Penal Code,
1860 to make false affidavit in one’s pleadings or filing false affidavit or false document in
evidence before court of law. Further, criminal contempt of court proceedings can be initiated
against the person filing false affidavit.15

Criminal proceeding may be initiated against the guilty by making an application under
section 340 Read with section 195 of Code of Criminal Procedure, 1973 before the criminal
or civil court for giving false evidence.

When false affidavit or false documents are given in any quasi-judicial or administrative
proceedings, then a private complaint can be filed under Section 200 of the Code of Criminal
Procedure, 1973 before the competent magistrate.

 Section 193 of the Indian Penal Code deals with the Punishment for false evidence.
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates
false evidence for the purpose of being used in any stage of a judicial proceeding, shall be
punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine, and whoever intentionally gives or fabricates false
evidence in any other case , shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine.

Is withdrawal of ‘Evidence Affidavit’ permissible?

Generally speaking, there can never be withdrawal of an Evidence Affidavit just as there can
never be a withdrawal of an examination-in-chief conducted directly in court. But, there are
two situations that require consideration.

First, where the witness is no longer physically available, that is, he has expired between the
time of filing of his Evidence Affidavit and the time for his cross examination. The law in
this regard is well settled, and it is simply this, that where the testimony is incomplete by
reason of death or incapacity of the witness before cross examination, the evidence,
admissible when given, does not cease to be so merely on account of that intervening factual
circumstance. What probative or evidentiary value is to be attached to this evidence is
another matter, and it turns on the circumstances of each case. The Court may seek
15
Bhandari, A., & Rathore, A. TOWARDS DECIMALIZATION OF INDIAN POLITICS: NEED OF THE
HOUR. JOURNAL OF GLOBAL RESEARCH & ANALYSIS, 5, 203.

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independent corroboration of that evidence; it may accept it, albeit cautiously, and that is no
infirmity per se in the final decision.16

Second, where the witness although is available and an Evidence Affidavit has been filed,
but, the witness is not tendered for cross examination as a sort of litigation strategy. Here the
party which led the evidence of a particular witness prefers to, as it were, take the high road.
He files an Evidence Affidavit and then simply does not produce the witness for cross
examination. It is impossible to allow this without consequence. The right to cross
examination is a fundamental strut of adversarial legal system and is a vital facet of the
principles of natural justice. Generally speaking, if a witness is not produced in the witness
box for cross examination by a party, then that party is divested from relying on any part of
the Evidence Affidavit of that witness, however, the opposite party is always at liberty to
benefit from the admissions made by that witness in his Evidence Affidavit. It is settled law
that where a party does not offer itself for cross examination, it will give rise to a
presumption under Section 114 of the Indian Evidence Act that the case that the party sets up
is incorrect.

The question that requires some deliberation is that, if the deponent (examination-in-chief by
way of an affidavit) has not made itself available for cross examination, would that mean that
the documents already admitted into evidence on the basis of that Evidence Affidavit can
later be rejected or removed from the evidentiary record? The Bombay High Court in the
matter of, Banganga Cooperative Housing Society Ltd. v. Vasanti Gajanan Nerurkar17, held
that, it is not correct to state that, a document once properly introduced into evidence can then
be expunged or excised from the record. However, in the absence of cross examination, the
person propounding that document may not be allowed to rely on it, but it may be used by the
other side as an admission.

Excursus:

1. An Evidence Affidavit cannot contain matter that is, irrelevant, inadmissible or both,
or, is in the nature of legal arguments, submissions or prayers for these are not in the
nature of ‘evidence’ as required by law.

16
Krishan Dayal v. Chandu Ram, (1969) ILR 1090
17
Banganga Cooperative Housing Society Ltd. v. Vasanti Gajanan Nerurkar 2015 SCC Online Bom 3411

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 2. No Evidence Affidavit under Order XVIII, Rule 4 of the CPC can be allowed to be
withdrawn for it is evidence as soon as it is affirmed.
3. Where an Evidence Affidavit is filed and the witness or deponent, though otherwise
available, is not made available for cross examination, the well-established
consequences in law will follow, that is, the opposite party will be entitled to submit
that an adverse inference be drawn against such a witness or the party who fails to
produce that witness for cross examination. Further, should the Evidence Affidavit
contain any admissions, those may be used by the opposite party. Also, so much of
the evidence as is against the party entitled to cross examination but which has gone
untested for want of production of the witness will be liable to be ignored.
4. It is permissible and is often necessary for a Court, with a view to expedite the trial
and to avoid a needlessly protracted cross examination on irrelevancies and matter
that is not ‘evidence’ to order that any such material that does not constitute evidence
be struck off or be ordered or directed to be ignored without fear of adverse
consequence.18

18
Goel, Shivam. "Can the Court order deletion of portions of ‘Evidence Affidavit’?." Available at SSRN
3066645 (2017).

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 DRAFTING OF AN AFFIDAVIT
i. Generally, affidavit is drafted in First person, so it is termed as Deed Poll document.

ii. The person who makes the affidavit is called the Affiant or Deponent.

iii. The Affiant’s or Deponent’s full description should be made in the affidavit so that
the party can be correctly identified.

iv. After the description of the affiant, the affidavit (which is divided in paragraphs),
must state the facts clearly pertaining to which the affiant or deponent is making the
affidavit.

v. As an affidavit is a statement made on oath, therefore, only those facts which are true
and correct, and regarding which the deponent has knowledge should be stated in the
affidavit.

vi. At the end the affidavit should be signed by the affiant/deponent. If the deponent is
illiterate his thumb mark is his valid signature.

vii. The affidavit must be sworn or affirmed before a Magistrate or an authorised officer
(refer to the relevant legal provisions stated above).

viii. If any clerical or typographical errors occur in the affidavit, then the same may be
scratched by ink. However, every correction should be made before swearing-in of the
affidavit. The authority before whom the affidavit has to be sworn must sign or initial
all such corrections. No correction should be made once the affidavit has been duly
sworn-in or affirmed.

ix. No affidavit having any interlineation, alteration or erasure shall be filed in Court
unless the interlineation or alteration is initialled or unless in the case of an erasure the
words or figures written on the erasure are rewritten in the margin and initialled, by
the authority before which the affidavit is sworn.

x. An affidavit after being sworn-in cannot be amended. A new affidavit incorporating

any such amendment/alteration should be filed. The new affidavit should not repeat
all the facts. Only the matter sought to be amended should be stated in such affidavit.

xi. An affidavit for non-judicial purpose has to be duly stamped and notarised.

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 xii. Affidavits are required to be drafted not only for court purposes but also for
submitting the same before quasi-judicial bodies, tribunals, registrar’s office,
government bodies, etc.

Format Of Affidavit19
If the name of a person does not have a last name, then his/ her father's first name should be
filled in the mandatory 'Last Name' field. In such a case, an affidavit duly notarized by a
Notary Public should also be submitted along with DIN application, in the format given
below:

Specimen/Format of Affidavit:

(If ID proof has single name for applicant)

I ____ (Applicant Name as per id proof), residing at _______ (Address as per address proof)
do solemnly affirm and stated as under:

I am _____ and my name _______, appearing on the enclosed ID proof, is single name. My
father’s name is ________________. For applying DIN application of mine, I am mentioning
my father’s name "____________" as my Last name, as this a mandatory requirement for
applying DIN. Both names denote one and the same person.

I solemnly state that the contents of this affidavit are true to the best of my knowledge and
belief and that it conceals nothing and that no part of it is false.

19
https://www.mca.gov.in/MinistryV2/formatofaffidavit.html.

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