Report No. 41

Chapter XLVI

Miscellaneous

46.1. Introductory.-

The last Chapter of the Code is a real hotch-potch and deserves the title 'Miscellaneous'. A number of provisions relegated to this Chapter could more appropriately and quite easily have been put in earlier Chapters along with connected or analogous sections.

46.2. Sections 539 and 539AA(1).-

Section 539 lists the persons before whom affidavits and affirmations to be used before any High Court or any officer of a High Court may be sworn or affirmed. Then section 539AA(1) provides that an affidavit to be used before any Court, other than a High Court, under section 510A (evidence of a formal character) or under section 539A (evidence regarding conduct of public servants), may be sworn or affirmed in the manner prescribed in section 539 or before any Magistrate.

According to one view,1 section 539A(1) does not cover affidavits under section 145 since they are not of a formal character so as to fall under section 510A. A Magistrate also does not seem to possess a general power to administer oath to any person who wishes to swear an affidavit before him. The provisions of section 4 of the Indian Oaths Act, 1873, do not confer such a power.2 In an earlier Report,3 the Law Commission has suggested an amendment of this Act for this purpose. We see no good reason why section 539AA(1) should be limited in its scope, nor why there should be two separate and slightly different provisions for the High Court and other Courts on this subject.

As regards the authorities referred to in section 539 the Clerk of the State, Commissioners to administer oaths in England or Ireland and Magistrates authorised to take affidavits or affirmations in Scotland should obviously be omitted. On the other hand, it is desirable to add notaries as they have been expressly authorised by law to administer oaths.4 We note that a suggestion to add notaries in the Code of Civil Procedure was rejected by the Law Commission in its earlier Report5 on that Code on the ground that the matter should be left to be dealt with by the High Court under section 139 of that Code. We would, however, prefer to mention notaries expressly in the Code of Criminal Procedure.

1. Herndon v. State, AIR 1966 Raj 5.

2. Wahid v. State, AIR 1963 All 256; Nandlal Ghose v. Emperor, AIR 1944 Cal 283.

3. 28th Report on the Oaths Act.

4. Section 8(1)(a), Notaries Act, 1952 (53 of 1952).

5. 27th Report.

46.3. Section 539A and section 539AA(2).-

While no change is required in sub-section (1) of section 539A (regarding affidavits in proof of the conduct of public servants), there is no reason why the provisions in sub-section (2) prescribing the essential requirements of an affidavit should be limited to this class of affidavits. Similarly, the provision in section 539AA(2) that the Court may order any scandalous and irrelevant matter to be struck out or amended should be applicable in relation to all affidavits and all Courts. These two general provisions relating to affidavits may be put together in the same section.

46.4. We propose accordingly that sections 539, 539A and 539AA be combined and revised as follows.-

"539. Authorities before whom affidavits may be sworn.- (1) Affidavits to be used before any Court under this Code may be sworn or affirmed befor.-

(a) any Judge or Magistrate;

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

(c) any notary appointed under the Notaries Act, 1952.

(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is 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.

539A. Affidavits in proof of conduct of public servants.- When any applicatioh is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given."

These two sections should be put in the Chapter relating to the taking of evidence.

46.5. Section 539B(1).-

Sub-section (1) of section 539B empowers any Judge or Magistrate to visit and inspect any place "for the purpose of properly appreciating the evidence given at the inquiry or trial". Whenever he does so, he is required to record without delay "a memorandum of any relevant facts observed at such inspection". While it may not always be possible to draw a sharp distinction between "relevant facts" and impressions or opinion formed by a Judge at a local inspection, the requirements of the section are fairly clear. The purpose of the inspection, as indicated in the sub-section, is neither unduly restrictive nor unduly lax. No change is required in the sub-section.

46.6. Section 539B(2).- The proviso to section 539B(2) relating to jury trial will have to be omitted.

46.7. Section 540A.-

With reference to section 540A, it was suggested during our discussion that there should be a provision for continuing the proceedings in the absence of the accused in cases where he persistently disturbs the proceedings and has therefore to be kept out. If such an accused is represented by counsel, it is possible for the Court, even under the present section, to proceed with the inquiry or trial in the absence of the accused person. Cases of extreme contumacious behaviour on the part of accused persons are extremely rare and we do not therefore think it necessary to make a special provision for those cases.

46.8. Section 541(3).-

In section 541(3), the references to sections 341 and 342 of the former Code of Civil Procedure should be replaced by "section 58 of the Code of Civil Procedure, 1908, or section 23 of the Provincial Insolvency Act, 1920, as the case may be."

46.9. Section 542.- We have earlier in this Report recommended1 that this section may be omitted.

1. See para. 37.4 above.

46.10. Section 543.-

Section 543 which lays a duty on every interpreter to interpret truthfully is a general provision relating to the taking and recording of evidence and should be included in the appropriate Chapter.

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