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N.K.Assumi (Advocate)     10 May 2013

Deposition in affidavit

 I have received a copy of Deposition in Affidavit  served to me by the claimant counsel, and when I enquire of him whether the deponent is appearing before the MAC Tribunal, he said yes. I ask him if the claimant is appearing in person why Deposition in Affidavit,? he told me that it is only to confine my cross examination to the written affidavit in the form of deposition In Affidavit. I received the same telling him to let the Judge Decide on his Deposition In Affidavit. Can some one please explain what is this Deposition in Affidavit: that too for the claimant who is appearing in person before the tribunal (MACT)



Learning

 18 Replies

adv. rajeev ( rajoo ) (practicing advocate)     10 May 2013

Chief examination affidavit can be filed in lieu of oral evidence.

Adv Archana Deshmukh (Practicing Advocate)     10 May 2013

It is a very common practice to submit an affidavit of the petitioner in lieu of his examination-in-chief in MACT cases. You can conduct your cross examination once the affidavit is verified before the tribunal.

N.K.Assumi (Advocate)     10 May 2013

But the claimant is appearing in person and according to the claimant"s counsel my cross examination should confine to written affidavi in the form of Deposition in Affidavit, in other words the counsel has already started restricting my right to Cross examinations under theIEA? In other words, the  claimant is appearing in person with the written affidavit. Does this Deposition in Affidavit trauncate my right to cross examination under the IEA apart from the written affidavit? 

N.K.Assumi (Advocate)     10 May 2013

Please also note that I have not issued any interrogatories to the claimant at the pre trial stage and the stage is now set for recording of Evidence summoning the witnesses.

Adv Archana Deshmukh (Practicing Advocate)     10 May 2013

Affidavit in lieu of examination in chief is filed at the stage of evidence only; there is nothing wrong in filing of that affidavit and also that have nothing to do with interrogatories. You can ask all questions in the cross examination that are relevant to the case and are consistant with the pleadings and other evidence on record.

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MohammedRaffiq Bijapur (Advocate)     10 May 2013

I think u r simply confused the proof of fact in summary proceedings are prove by filing affidavit  and an opportunity be given to negativ the same by cross examination. The very Motor Vehicle act has prescribed the procedure and same was also found in CPC.

Anjuru Chandra Sekhar (Advocate )     10 May 2013

All that has happened after Amendments made to the Code in 1999 and 2002 is that instead of recording the evidence before the court, the duty is now placed on the Advocates appearing for the parties to personally examine the witness and get his statement recorded in his presence by one of the modes set out under Order 18 rule 5 of the Code and transcribe the same on an affidavit which is to be filed in the court.  An affidavit not following aforesaid procedure is not the affidavit contemplated and will have to be rejected.  Once the affidavits are filed by way of Examination in chief in compliance of the procedures the plaintiff cannot be denied opportunity to cross examine witness (AIR 2005 Bom.294).  In all cases whether appealable or non-appealable the examination in chief has to be conducted by way of affidavits (AIR 2005 AP 253).

N.K.Assumi (Advocate)     11 May 2013

But when the witness of the EIC is in "Attendence" with oath being administered to the witness, what is the requirement of law to file affidavit. The statement of objects and Reasons of the Amendment 2002 is clear, but direcrting the EIC to file affidavit who is in "attendance" before the court consume unnecessary time of the advocate.Honestly speaking, I am confused with this requirement of law for filling affidavit of a witness who is in "attendance" before the court. Does this reqirement also apply to witness who gives his evidence through audio-video link? 

Anjuru Chandra Sekhar (Advocate )     11 May 2013

Chief Examination as per IEA is done by the Advocate to his own party.  Cross examination is done by the Advocate of adverse party.  It is obvious what questions the Advocate puts to his own party.  They are predetermined and preplanned. Advocates prepares the client how to answer the questions.  There is no need for the Advocate to ask extemporaneous questions and catch the thief, unlike cross examination.

 

It can be done even in person outside court without wasting the valuable time of the court.  So in order to save time of court, the Advocate is expected to complete the Chief Examination in person and file it in written form so that when it is posted for hearing directly the part relating to cross examination may begin. 

 

To avoid disco of the Advocate with his own client. :)This is my personal view.

 

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N.K.Assumi (Advocate)     11 May 2013

Thanks Charndrasekhar.That is exactly the statements of objects and reasons of the Amendment as culled out from the Supreme Court judgment of Salem advocates Bar Association T.N vs Union of India. But,I am of the view that it is an harrasment to the advocate in the garb of saving court's time. It also deprived the Judge to observed the body language of the witness while giving oral deposition. I am not trying to question the wisdom of the parliament but simply trying to say that it is harrasment to the lawyers in the grabed of saving court's time etc.

Anjuru Chandra Sekhar (Advocate )     11 May 2013

@N.K. Assumi.  Kind regards.  I have gone through the judgment a little bit after it is quoted by you.  My view is the work between judges may be divided in such a way that the judges who can read well may be called "reading judges" who only deal with file, and judges who possess skill to hear and examine may be called "hearing judges", and they only deal with court hearings, though have access to file but have brief idea about subject.  This division of work may save time of courts much better.  What is recorded during hearing is given to the "reading judge" and he decides case accordingly.  If hearing can be conducted even by Commissioners appointed by court, I feel the hearing judge can be of lower rank and the reading judge can be of higher rank.  The reading judge who is of higher rank may give the assignment to the junior judge the way he wishes to obtain the proceedings of hearing on specified lines instead of asking junior judge to go through file.  I do not know practical difficulties, some new idea.

 

To what extent demeanour of the witnesses play its role in deciding about the veracity of the deposition is not known, when after the Examination in Chief and Cross examination is complete, the witness is given the copy of what is recorded and asked to confirm by way of signature whether what is stated by him during EIC and CE is true and correct.  If he has any objections, he is also allowed to offer his objections to what is recorded as being said/admitted by him during the course of examination.  That being the case, it makes no difference whether he is examined inside court or outside court by anyone as opined in the said judgment.

 

You see hearing means fundamentally the judgment based on body language and demeanor only.  In the given set up, even if the judge knows by instincts that the witness deposing is lying 100 percent, how far he can reject that deposition is not known to me.  Entire written part may go off in one stroke in some case if the judge decides that the prime witness is lying.  If that is system, then hearing is OK.  Otherwise what is the purpose of hearing? Are we ready to hear the victim directly and give justice to him reading his demeanor vis-a-vis the demeanor of the offender?  No.  That is actually purpose of hearing.  To read the body language, demeanor etc and arrive at judgment as to who is possible victim and who is possible offender.  When everything can be rejected when presented on paper for the purpose of confirmation, what purpose it serves?

 

Even otherwise, hearing is meant for recording evidences, examination, cross examination and re-examination.  Rest of all is paper work only. If that (recording evidences, examination, cross, reexamination etc) is outsourced what is there for judge to do in hearings?

Anjuru Chandra Sekhar (Advocate )     11 May 2013

Let me put it this way.  A girl files for divorce in Family court saying, she is married forcibly by one Mr.A. under Hindu Marriage Act.  Mr. A contests that marriage is accepted by both families and is done as per Hindu rites and customs, all evidences are there and every witness deposes that marriage is perfectly done.  All customs were perfectly followed as required by Hindu Marriage Act.  However girl is deposing that none of them is true, I am saying I was forced by my parents to marry the man called A. 

 

Under which section of HMA the judge can reject divorce to her?

 

There is no section in HMA that lends protection to girls who are married forcibly.  Judge knows she is not lying.  He accepts that her deposition is honest.  But there is no law to support her.  He will give a direction to her saying, "there is no provision in HMA to women married by force, you can find your remedy under general common law in a Civil court".  That is fine.  But what happens to the deposition?  The question is whether law weighs or the deposition. If it is to be decided purely on the basis of hearing without considering any rule book position, the judge has to give judgment in favor of the girl because she herself is admitting that it is a forced marriage. 

 

So, it is entirely judgment based on rule book position that we follow in courts.  That is our system. And even the facts that are found during examination can be manipulated facts or twisted facts because once they are shown to the offender after cross, his mind may work in the direction of manipulating the facts so as to serve his best defences.

 

My view is justice is not the test of skill between Advocates but the judgment of where lies the case, on whose side. If that is benchmark for giving justice, then even if rule book position says otherwise, even if the best competitor is on wrong side, the judge would be in a position to save the girl purely on the basis of her deposition.

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N.K.Assumi (Advocate)     11 May 2013

The case of Salem Advocates always reminds me of the memorable words of the famous epitaph memorable words of the IInd world war "When You Go home, tell them of us, and say,  we gave ours today for your tommorow" That Order XVIII if followed in strictio, it has the tendency of creating a very very serious remification in our adversial systems. Why should the time of lawyers be sacrificesd for the time of the judges? Should the Judges simply sit and give verdicts based on papaer works? Is it not the basic principles of our judicial jurisprudence that the evidence be recorded in the presence of the presiding Judge? And how come the Commissioner who is a stranger to the case comes to the trial scene? I am aware that this procedures exist in other continents, but is it good for a country like ours? any way, thanks a lot for giving your time and lets keep pondering over this issues. Once again thanks for giving your time.

N.K.Assumi (Advocate)     11 May 2013

As regards to hearing Judge and Reading Judge:let me quote Shakespear's  memorable lines. "Some are born Great, some achieve greatness, some have greatness thrush upon them". Likewise, we also have Judges in those catagories; which one do you prefer? As for me I prefer either a born Judge or achieving Judge and surely not a Judge that is being thrush upon them. 


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