IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36045 of 2008 GOPAL PASWAN SON OF SRI KRISHNA PASWAN, RESIDENT OF BIAKHTIYARPUR MADHOPUR, P.O. AND P.S. BAKHTIYARPUR, DISTRICT- PATNA……PETITIONER. Versus THE STATE OF BIHAR……… OPPOSITE PARTY. ----------- For the Petitioner : Mr.A.B.Ojha, Advocate Mr.Bharat Bhushan, Advocate For the High Court : Mr.Tarakant Jha, Senior Advocate Mr.Amish Kumar, Advocate. ------------ 9. 10.12.2008 Petitioner filed application for grant of bail. The affidavit in support thereof was filed by the pairvikar and not any of the relation of the petitioner. In view of the direction of the learned Single Judge dated 28.7.2005 passed in Cr.Misc.No.22915 of 2005 (Sikandar Paswan versus The State of Bihar), the Stamp Reporter raised objection as defect no.13 and pointed out that the affidavit has to be sworn by the relative of the petitioner. This was contested by the petitioner and by order dated 28.8.2008 this Court overruled the objection and while doing so observed as follows : “The rules (Rule-3) elaborately lay down how the petitions could be filed and what could be their contents and who could sign them or how the petition could be presented in absence of the petitioner or appellant as the case may be and what is required to be done while supporting the contents of a petition through an affidavit. The rules are elaborately crafted and no where is it mentioned that a relative of a petitioner/appellant or a close family member could swear an affidavit. What is required is spoken of by Rule 7 and 8 of Chapter III of the rules that the name of the deponent as also his father’s name along with his caste, religion, his rank or degree in life, his profession, calling, occupation or 2 trade and his true place of residence have to be indicated while verifying the contents of an application as is required in case of the petitioner of a petition filed as per the rules contained in Chapter-III. The whole bunch of Rules complied in Chapter-III Part-II of the Rules do not contain any requirement which could justify the objection. If the rules do not require any special qualification or status or relationship so as to making a person competent to swear an affidavit, there could not be any such objection as has been raised. The objection raised by the Stamp Reporter is clearly in infraction of the Rules and could not be upheld.” While overruling the objection the learned Single Judge directed the Registrar General of the Court to issue caution in writing personally to the employee of the Court who had raised objection no.13 requiring him that “he should apply the Rules of the court in letter and spirit and even handedly”. However, it did not take into consideration the earlier decision of this Court dated 28.7.2005 passed in Cr.Misc.No.22915 of 2005 (Sikandar Paswan vs. The State of Bihar). Later on the petitioner was granted bail by order dated 30th of Semptember, 2008. The Registry put up a note before the learned Single Judge and drew the attention of the order passed in the case of Sikandar Paswan (Supra) and submitted that in view of the aforesaid order, the Stamp Reporter rightly insisted that the affidavit be sworn by a relative. In the said case, the learned Single Judge had observed as follows : “It has been brought to my notice that in some similar matters, Bench of this Court directed for holding enquiry and lodging of criminal case for swearing false affidavit, 3 but up-till-now, there has been no fruitful result as the police has also failed to trace out the culprit. In most of the cases, bail applications have been affidavited by the pairvikars and identified by the so called authorized clerks of the lawyer other than through whom such bail applications are filed. In order to check this mal-practice, I consider it proper to lay down that the affidavits in the bail applications must be sworn by some one who is related to the petitioner except in the bail applications filed through legal aid forum or which have already been filed. Further the person swearing the affidavit must be identified by the registered clerk of the lawyer through whom the bail application is filed.” The learned Judge finding his view to be in conflict with the observation of an earlier Single Bench of this Court in the case of Sikandar Paswan directed that the matter be laid before Hon’ble the Chief Justice for deciding it “by a competent Bench”. Hon’ble the Chief Justice had directed the matter to be listed before us and accordingly, this issue has been posted for consideration before us. Mr.A.B.Ojha, appearing on behalf of the petitioner points out that a Single Judge sitting on the judicial side can adjudicate the matter entrusted to it by master of roles but cannot give general direction. He points out that the direction given by the learned Single Judge in the case of Sinkandar Paswan is nothing but usurping the power of the High Court conferred under Clause 30 of the Letters Patent. He points out that Clause 28 of 4 the Letters Patent confers on the learned Single Judge the jurisdiction to adjudicate the matter posted for consideration and, as such, the direction given by the learned Single Judge in the case of Sikandar Paswan (Supra) is absolutely erroneous and the same does not flow from the rule made by the Court. According to him, the view taken by the learned Single Judge in its order dated 28.8.2008 is correct and the rule no where mentions that a relative of the petitioner or a close family member would only swear affidavit. Mr.Tarakant Jha, Senior Advocate, appearing on behalf of the High Court, however, contends that while interpreting the provision of law or rule a Judge sitting on the judicial side can give direction of general nature and in case a Judge does so, it cannot be said that he has usurped the power of the High Court to make rules. In this connection, he has drawn our attention to Rule 8, Chapter III of Part II of the High Court Rules. Having given our most anxious consideration, we are not inclined to accept the submission of Mr.Ojha. The very assumption that the learned Single Judge while giving direction has usurped the power of the High Court to frame rule is absolutely misconceived. Chapter III of Part II of the High Court Rules provides for general rules regarding application and affidavit. Rule 8 thereof which is relevant for the purpose reads as follows : “8. Every person referred to in a petition or 5 affidavit shall be described therein in such manner as will serve to identify him clearly, that is to say, by the statement of his correct name and address and such further description as may be necessary for his identification.” From a plain reading of the aforesaid rules, it is evident that the deponent of an affidavit has to a person who can be identified clearly and the said rule further provides for further description as may be necessary for his identification. It is relevant here to state that while considering the issue in the case of Sikandar Paswan, it came to the notice of the court that the deponent of the affidavit in many cases is not being identified. Therefore the direction given by the learned Single Judge flows from Rule 8 from the Rules. In our opinion, if the direction given by the court flows from the existing rules, nothing prevents the learned Judge to give general direction in regard thereto for observation. Such a direction cannot be construed as usurption of the power of the court to make rules. In the face of language of Rule 8 of the Rules, we are of the opinion that the learned Single Judge did not err in directing that the deponent of the affidavit should be a relative. The learned Single Judge while overruling the objection of the Stamp Reporter by order dated 28.2008 has not adverted to this aspect of the matter and in fact his attention was not brought to earlier decision of this Court in the case of Sikandar Paswan (Supra). In view of aforesaid, the view taken by the learned 6 Single Judge in order dated 28.8.2008 does not commend us and it is accordingly overruled. The learned Single Judge, however, is right in observing that same defect did occur in Cr.Misc.No.33822 of 2008, but it was not pointed out by the Stamp Reporter and therefore appropriate action in accordance with law deserves to be taken against the Stamp Reporter, who had made report in Cr.Misc.No.33822 of 2008. Application stands disposed off accordingly. (Chandramauli Kr.Prasad, J.) ( Dr. Ravi Ranjan, J.) Narendra/