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Oaths, affidavit and motion: Everyday affairs in the court
Barrister Md. Abdul Halim
As junior lawyers we have to face precarious problems in the corridors of the courts with regard to the procedures of oaths, affidavit, motion etc in our day to day court works. So is the plight of our litigants; little they know about these but they have to face these very often. If you want to file an application or motion or a case in the High Court Division, or in lower court, in general you must go for affidavit first. And the affidavit is done on oath or affirmation. What are all these about? Law on oaths and affirmations are regulated by the Oaths Act, 1969. Section 4 of the Oaths Act 1969 makes it mandatory that oaths or affirmation shall be made by all witnesses or persons who may lawfully be examined, or given, or be required to give, evidence by or before any court. Section 5 of the Oaths Act 1969 specifies that a witness may, instead of making an oath, make an affirmation. The question is- what is the difference between oath and affirmation?
Oath is swearing by the name of God. Oath has more religious persuasion. On the other hand, affirmation is non-religious and secular in nature. Many people have objections in swearing oath and as a result the provision of affirmation instead of oath has been incorporated in accordance with the recommendation of the Indian Law Commission in the Oaths Act 1969. Because of affirmation there has now been uniformity in the form to be adopted in the matter of any oath, affirmation, affidavit etc. in the courts throughout the country
Oath: "I do swear in the name of God that what I shall state shall be the truth, the whole truth and nothing but the truth."
Affirmation: "I do solemnly affirm that what I shall state shall be the truth, the whole truth and nothing but the truth."
An affidavit is a statement in writing, made on oath or affirmation. In other words, affidavit is a written statement sworn before a person having authority to administer an oath.
An affidavit must be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted.
The difference between a 'solemn affirmation' and 'affidavit' is that the applicant is to solemnly affirm that the statement made in petition are true to his own knowledge whereas in the case of an affidavit, it may be sworn by any person acquainted with the facts of the case.
An affidavit is different from deposition, in that the former is always made ex parte and without cross-examination, while the latter is evidence given on oath in the witness-box and is subject to cross-examination of the deponent.
Laws of oaths and affirmations according to CrPC Courts and persons before whom affidavits may be sworn for the purpose of High Court Division (sec. 539): Affidavits and affirmations to be used before High Court Division or any officer of such Court may be sworn and affirmed before such Court or the Clerk of the State or any Commissioner or other person appointed by such Court for that purpose, or any judge, or any Commissioner for taking affidavits in any Court of Record in Bangladesh.
In practice, the High Court Division has appointed an officer called Commissioner of Affidavit to whom all affidavits are sworn.
Courts and persons before whom affidavits may be sworn for the purpose of court other than High Court Division (sec. 539A): An affidavit to be used before any Court other than High Court Division under may be sworn or affirmed in the manner prescribed in section 539, or before any Magistrate.
In practice, the Serestader of every subordinate court has been given power to sworn affidavit or affirmation.
For any affidavit required in Magistrates courts it is the Magistrate himself of the court who administers oath or affirmation for the purpose of affidavit.
Nature of Affidavit: Section 539A describes the following nature of affidavits with regard to matters in the CrPC:
(i) 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.
(ii) The Court may order any scandalous and irrelevant matter in an affidavit to be struck out or amended.
Effect of Affidavit: The administration of oath or affirmation is an essential requirement of an affidavit. If an oath or affirmation is administered, there follows several legal consequences of which the most important is the obligation of the deponent to speak the truth. If this obligation is broken and the deponent makes in the affidavit a statement which is false and which is known to be false, he becomes punishable under the provisions of the Penal Code relating to perjury.
Motion is the generic name given to any proposal submitted to House of Parliament for normal decision. In legal field very generally motion means an application to a court or a judge for an order directing something to be done in the applicant's favour. This is, however, true for both motion application and non-motion applications. Actually, motion is a technical term in court practice and procedure. It is not an easy task to differentiate between motion applications and non-motion applications. Most of the matters in the High Court Division are filed on motion. For convenience of understanding petitions or applications in the High Court Divisions may be of two types: motion matters and non-motion matters. Motion matters are heard on a specific day called “motion day”. Normally the opening day of the week is fixed for motion matters. Civil and criminal appeals are always non-motion applications. In case of motion application affidavit or affirmation is a normal rule whereas in case on non-motion applications affidavit or affirmation may not be required. Secondly, in case of motion a notice of motion must be served to either Attorney-General or to the opposite parties' advocates (More you will learn about this procedure while you will be practising in the Supreme Court). See section 419 of CrPC for application of appeal. It does not say any requirement of motion or affidavit or affirmation. On the other hand, look at section 526 for transfer of a case. This section makes it mandatory that every application fro transfer of cases must be made on motion.
The author is an advocate, Supreme Court of Bangladesh.