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Judgment
Can a Court refuse to record the evidence of a witness who is not willing to make an oath in the name of the God, but is ready and willing to make an affirmation?
This is the question that arises for consideration in this civil revision petition.
The relevant facts, which are simple, are the following:
The petitioner herein is the plaintiff in OS No.16 of 1989 on the file of the Senior Civil Judge''s Court, Kavali, which was instituted for declaration of her title to the plaint schedule property and permanent injunction restraining the respondent-defendants from interfering with her peaceful possession and enjoyment of the same.
In the said suit, the petitioner-plaintiff got herself examined as PW1 and she wanted to examine the scribe of Ex.A1-Will, Sri Venkata Subbaiah, as PW2. When the said Sri Venkata Subbaiah refused to make an oath in the name of the God, the learned Senior Civil Judge did not permit him to give evidence and passed the impugned order dated 11-6-1998, which can be usefully extracted hereunder :
"PW1 recalled and cross-examined. Advocate for plaintiff requested to examine the scribe of Ex.A1 by name Venkata Subbaiah as a witness on behalf of plaintiff. The said Venkata Subbaiah on entering into witness box refused to take oath in name of God and he expressed his readiness to give evidence according to his conscience. As the witness refused to take oath, he is not permitted to give evidence and the Court refused to record his evidence. For further evidence, if any, adjourned to 18-6-1998."
It is this order that is assailed in this revision petition.
From a perusal of the aforesaid impugned order it is clear that the proposed witness, Sri Venkata Subbaiah, has only refused to make oath in the name of the God, but is ready to make an affirmation before giving evidence.
Sri P. Sridhar Reddy, learned Counsel for the petitioner-plaintiff relying upon Sections 4, 5 and 6 read with the Schedule of the Oaths Act, 1969 (Act 44 of 1969 - for short "the New Act") submits that a witness has an option, in law, either to make an oath in the name "of the God or make an affirmation before giving evidence, the Court below has grossly erred in refusing to record the evidence of the proposed PW2, Sri Venkata Subbaiah, on the sole ground that he has refused to make an oath in the name of the God even though he was willing to make an affirmation, and that amounts to exercising its jurisdiction with material irregularity.
Before examining the contentions of the petitioner''s Counsel, it would be appropriate, first, to note the meaning of the terms "oath" and "affirmation".
There are different kinds of "oaths" referable to different occasions. We are concerned here with "judicial oath" i.e., the oath made by the witnesses before the Courts or the Judicial Tribunals. A Judicial Oath is an outward pledge made by a witness that his evidence is given under an immediate sense of responsibility to God. Whereas, affirmation is a solemn and formal declaration by a witness that he will tell the truth (See the Black''s Law Dictionary, 5th Edition - page Nos.55 and 966.) Thus, it can be seen that there is no significant difference between an oath and an affirmation. A believer may take oath in the name of the God and a rationalist may make a solemn affirmation. This freedom, either to make an oath or affirmation, is always recognised in almost all the civilised societies. In English whenever an oath is required under the Rules, a solemn affirmation is accepted in lieu thereof. The position is no different in this Country. The Indian Oaths Act, 1873 (for short "the Old Act") clearly recognised this freedom of a witness under Sections 5 and 6 and in fact Section 6 clearly exempts Hindus and Muslims and any person who has an objection to make an oath, from making an oath before giving evidence and allows them to make an affirmation.
Accepting the 28th report of the Law Commission, the Parliament has enacted the New Act, which has repealed the Old Act. Section 4 of the New Act enjoins, inter alia, that oaths or affirmations shall be made by all witnesses. Section 5 of the New Act clearly provides thus :
"Section 5. Affirmation by persons desiring to affirm :--A witness, interpreter or juror may, instead of making an oath, make an affirmation".
The New Act also prescribes the "forms of oaths or affirmations u/s 6 read with the Schedule. Form No. 1 of the Schedule, which is relevant here, is an under:
"I do swear in the name of God/Solemnly affirm that what I shall state shall be truth, the whole truth and nothing but the truth."
Proviso to sub-section (1) of Section 6 of the New Act even enable the Court to permit a witness, on his request, to make an oath or affirmation in any other form common amongst, the class of persons to which he/she belongs.
From the above discussion, it is clear that it is open to a witness either to make an oath in the name of the God or to make a solemn affirmation. The Court, cannot, therefore, refuse to examine such a person as a witness on the sole ground that he has refused to make an oath. That is what exactly the lower Court did in this case. That is nothing but exercise of jurisdiction with material irregularity. The impugned order is, therefore, unsustainable.
For the aforementioned reasons, the civil revision petition is allowed. The impugned order is set aside. The trial Court is directed to record the evidence of the scribe of Ex.A1-Will, Sri Venkata Subbaiah, or any other person or persons on making an affirmation as laid down u/s 5 read with the Schedule of the New Act. No costs.