Bombay High Court
Nandakumar Shankar Mhatre vs Dayanand Mahadev Mhatre And Others on 18 October, 1988
Equivalent citations: 1989(1)BOMCR112
ORDER
1. This is a petition for cancellation of bail under S. 439(2) of the Criminal P.C.
2. The respondents are the accused in C.R. No. 17 of 1988 of Bhava Sheva Police Station for the offences punishable under section s 302, 147, 148, 149, 323, 114, 207 and 326 India Penal Code. They were released on bail by the Sessions Court by three different orders. After they were released on bail they abused the liberty granted to them and they had attacked the house of one Dilip Dayaram Mhatre and the Uran Police Station registered offences against them for the offences punishable under Sections 147, 148, 336, 504 and 506 I.P.C. It has been alleged in the petition that there was sufficient evidence against the petitioners for the commission of the offence under S. 302 read with S. 149 I.P.C. The learned Sessions Judge released them on bail and they abused the liberty granted to them. It was further alleged that an application was made to the Sessions Judge for cancellation of bail on 23rd August, 1988 and though it was registered, was not taken up by learned Sessions Judge. The respondents opposed the petition by filing an affidavit in reply of one Pandurang Chandrakant Mhatre respondent No. 17.
3. In this case I have heard the matter earlier on 4th October, 1988 and on that day I dictated oral judgment. When the judgment was transcribed, it was noticed that there was confusion regarding the respondents and their numbers as accused and in order to remove the confusion I recalled the oral judgment delivered on 4-10-1988 and the matter was posted to 17th October, 1988 for re-hearing. After the matter was posted for hearing the affidavit-in-reply dt. 13th October, 1988 has been filed.
4. At the re-hearing of the matter I noticed that the petitioner's application for cancellation of bail has been verified to his knowledge and belief without stating what portion thereof was to his knowledge and what portion was on the information received by him and believed to be true. The source of information is also not mentioned. It is also noticed during the hearing that averments regarding filing of application for cancellation of bail in the Sessions Court on 23-8-1988 and the averment that the application though registered was not being taken up and disposed of by the learned Sessions Judge are not true and correct. No such application has been made to the Sessions Court. It appears that the care required for preparing affidavit has not been taken and the verification has also not been done as required by law. Same is the case with the affidavit-in-reply filed on behalf of the respondents. That affidavit is not at all verified. It is nothing but written argument. All sorts of arguments have been made and it has been contended therein what is the law on the point of cancellation of bail. Affidavits are not meant for submitting arguments. They are meant for stating facts relating to the subject matter in question. The affidavits are required to be verified as per para 5 of Chap. VII page 141 of Criminal Manual, 11th Edition as revised by this Court. Para 5 reads thus :-
"5. (1) Every affidavit should clearly specify what portion of the statement is made on the declarant's knowledge and what portion of the statement is made on his information or belief.
(2) When a particular portion is not within the declarant's own knowledge but it is stated from information obtained from others, the declarant must use the expression 'I am informed' and, if it is made on belief, should add 'I verily believe it to be true.' He must also state the source or ground of the information or belief and give the name and address of, and sufficiently describe for the purpose of identification, the person or persons from whom he had received such information.
(3) When the statement rests on facts disclosed in documents or copies of documents procured from any Court or other person, the declarant shall state the source from which they were procured and his information, or belief, as to the truth of the facts disclosed in such documents."
5. Proper verification of the affidavits has been considered by the Supreme Court in State of Bombay v. Purushottam Jog Naik, of the report their Lordships observed thus :-
"We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins, C.J. and Woodroffe, J. in 'Padmabati Dasi v. Rasik Lal Dhar', (1910) ILR 37 Cal 259 and endorse the learned Judges' observation."
Again in Barium Chemicals Ltd. v. Company Law Board, , their Lordships of the Supreme Court at page 319 of the report regarding the verification of the affidavit have observed thus :-
"........ It is true that in a case of this kind it would be difficult for a petitioner to have personal knowledge in regard to an averment of mala fides, but then where such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. In such a situation, this Court has to observe is , that as slipshod verifications of affidavits might lead to their rejection, they should be modelled on the lines of O. XIX, R. 3 of the Civil P.C. and where an averment is not based on personal knowledge, the source of information should be clearly deposed ....."
6. The learned Counsel for the petitioner orally applies for amendment of the petition and thereby wants to correct the verification of the petition. I am unable to see how a party can be allowed to amend the affidavit which has been already made by him. The affidavit once made cannot be allowed to be changed by amending the same. Consequently, the prayer of the learned Counsel for the petitioner for permission to amend the petition cannot be granted.
7. As there are no proper affidavits which can be legally considered by this Court, I do not think it would be proper for this Court to hear the matter on the defective affidavits which cannot be considered as evidence. Their Lordships of the Supreme Court in A. K. K. Nambiar v. Union of India, observed thus :-
"The appellant made allegations against the Chief Minister of Andhra Pradesh and other persons some of whose names were not disclosed. Neither the Chief Minister nor any other person was made a party. The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence." In view of the law on the point of proper verification of the affidavits laid down by the Supreme Court in the decisions referred to above, the affidavits without verification and the affidavits with defective verification cannot be admitted in evidence. As indicated above, the petition is not properly verified and there is no other affidavit in support of the petition. The affidavit in reply filed by the respondents is not at all verified. The matter cannot be decided on such defective affidavits which are not admissible in evidence. Hence the petition is dismissed with liberty to the petitioner to file fresh petition, if so advised. Rule is discharged.
8. Petition dismissed.