Om Prakash Suthar vs The State of Rajasthan and Others

Sandeep Mehta, J.—The present Misc. Petition has been filed on behalf of the petitioner challenging the order dated 02.04.2009 passed by the learned Judicial Magistrate, First Class No. 2, Sri Ganganagar, whereby, the learned Magistrate on the application of the accused has directed the petitioner to take oath in the name of ''Saved Peer Baba''. The said order was challenged in revision and the learned Sessions Judge, Sri Ganganagar has affirmed the order of the learned Magistrate by rejecting the revision on 09.06.2009 and hence the present Misc. Petition. Assailing the orders impugned passed by the learned courts below, learned counsel for the petitioner submits that as per the Oaths Act, 1969, the manner in which the oath has to be administered is the discretion of the Court. The court can give direction to take the oath in a particular form but such a direction cannot be issued at the request of the accused. In these circumstances, the orders impugned passed by the courts below are abuse of the process of the court.

I have heard learned counsel for the parties, perused the orders impugned passed by the learned courts below, the provision of Section 6(1) of the Oaths Act, 1969 and have considered the arguments advanced at the bar.

The provision of Section 6(1) of the Oaths Act, 1969 reads as under:

Forms of oaths and affirmations. -- (1) All oaths and affirmations made u/s 4 shall be administered according to such one of the forms given in the Schedule as may be appropriate to the circumstance of the case:

Provided that if a witness in any judicial proceeding desires to give evidence on oath or solemn affirmation in any form common amongst, or held binding by persons of the class to which it belongs, and not repugnant to justice or decency, and not purporting to affect the third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore; contained, allow him to give evidence on such oath or affirmation."

A consideration of the Proviso to Section 6(1) of the Oaths Act clearly leads to the irrefutable conclusion that the witness has a right to express a desire to give evidence on oath in any form common amongst, or held binding by persons of the class to which is belongs. Thus, the discretion to choose the mode of oath has been given to the witness and such a request cannot be made by the accused. That apart, the oath has to be administered as per the form given in the Schedule. The form of oath or affirmation leads that a witness has to be given oath in the name of God.

A perusal of the said provision reveals that the oath has to be administered to a person who taking oath as per the form provided in the Schedule but no such direction can be given to the witness to be administered oath in a particular way on the request, of the accused. The oath has to be administered as per the form prescribed under the Oaths Act and the oath has to be taken in the name of God.

In this opinion of this Court, ''Sayed Peer Baba'' in whose name the oath has been directed to be administered cannot be said to'' be God.

Resultantly, this Misc. Petition succeeds. The order dated 02.04.2009 passed by the learned Judicial Magistrate, First Class No. 2. Sri Ganganagar as affirmed by the learned Sessions Judge, Sri Ganganagar in revision by the order dated 09.06.2009 are hereby quashed and set aside. The court shall now administer oath as per the Oaths Act, 1969 as well as in accordance with law.