1. This is in context with Directorate of Air Veterans (DAV) SOP for Retired Officers ref No. Air HQ/99797/Pen-Pol/RP/O/DAV dated 28 Jun 2021 that for a correction or change in the name of the spouse of a Commissioned Officer pensioner of the IAF, and for PBoR where one has to have an affidavit sworn before a 1st Class magistrate. (An aside: a former PD DAV corrected me that it wasn’t Judicial Magistrate First Class!)
2. It has been admitted there isn’t any GoI/MoD/DESW approval of the SOP, (ii) the matter is now with the Chiefs of Staff Committee. I am placing my points of fact in greater detail for information.
3. List of those empowered to swear in affidavits as per Section 139 of the Code of Civil Procedure 1908 and in the Section 12 onwards in the Code of Criminal Procedure 1973: -
(a) Code of Civil Procedure 1908 at Section 139 states, inter alia, states, “Oath on affidavit by whom to be administered – in the case of any affidavit under this code (a) any Court or Magistrate or (aa) any notary appointed under the Notaries Act, 1952 (53 of 1952) or (c) any officer or other person whom a High Court may appoint in this behalf or (c) any other officer appointed by any other Court which the State Government has generally or specially empowered in this behalf may administer the oath to the deponent (italics supplied).
(b) Section 3 in the Code of Criminal Procedure, 1973
3. Construction of references.
(1) In this Code,-
(a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,-
(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;
(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(b) any reference to a Magistrate of the second class shall, in relation to an area outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(c) any reference to a Magistrate of the first class shall,-
(i) in relation to a metropolitan area, be construed as a reference to a Metropolitan Magistrate exercising jurisdiction in that area,
(ii) in relation to any other area, be construed as a reference to a Judicial Magistrate of the first class exercising jurisdiction in that area;
(d) any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area.
(2) In this Code, unless the context otherwise requires, any reference to the Court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan Magistrate for that area.
(c) Sections 11 to 15 define Judicial Magistrates First Class and Second Class, Sections 16 to 19 define Metropolitan Magistrates.
(d) Section 20 – 23 defines Executive Magistrates who are appointed by State Governments which includes the District Collector who is District Magistrate, Tehsildars etc.
4. Changes/corrections of name/date of birth and other occurrences listed in the SOP are civil procedures. Therefore, swearing in an affidavit should comply with Section 139 of Code of Civil Procedure which states - Oath on affidavit by whom to be administered – in the case of any affidavit under this code
(a) any Court or Magistrate or
(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952) or
(b) any officer or other person whom a High Court may appoint in this behalf or
(c) any other officer appointed by any other Court which the State Government has generally or specially empowered in this behalf may administer the oath to the deponent (emphasis supplied).
5. Therefore,
(a) It is clear that the High Court, with prior approval of the State Govt has decided who can swear in any affidavit. As will be seen below, (Karnataka, where I reside) High Court Rules do not restrict/specify who can swear in only a specific category of affidavit. Surely, DAV cannot overrule a High Court.
(b) In exercise of the powers conferred by Section 122 of the Code of Civil Procedure (Central Act V of 1908) and all other powers thereunto enabling the High Court of Karnataka, with the approval of the Government of Karnataka, and in suppression of the Rules of Practice continuing in force by virtue of Section 119 of the States Reorganisation Act, 1956 (Central Act XXXVII of 1956) in different areas of the State, The Karnataka Civil Rules of Practice, 1967 (https://karnatakajudiciary.kar.nic.in) were enacted. There would be similar Rules for each State.
(c) The Karnataka Rules referred to above states in Chapter 12 Part B Affidavits at Para 5 (i) Under Section 139 (b) of the Code of Civil Procedure approximately two to four legal practitioners at the Headquarters of each district and one at each station where there is a Subordinate Judge, are appointed as Commissioners for the purpose of administering oaths and affirmations with the previous approval of the High Court. Oath Commissioners may also be appointed at Headquarters of Tahsils where there are no Subordinate Judges…(emphasis supplied).
6. Supreme Court of India Handbook on Practice and Procedure and Office Procedure 2017 at Chapter IX titled Affidavit states 1. An affidavit for the purpose of any cause, appeal or matter before the Court may be sworn before a Notary or any authority mentioned in Section 139 of the Code or before a Registrar of the Court duly authorized in this behalf by the Chief Justice, or before an Oath Commissioner generally or specially authorized in that behalf by the Chief Justice.
7. As the honourable High Courts (and even the Supreme Court) have laid down who can swear in any affidavit vide Section 139 of the Code for Civil Procedure, 1908 instead of searching for an entity titled 1st Class Magistrate, it is requested that the matter of who can swear in affidavits of Air Force pensioners/spouses/children/dependents for changes listed in the impugned SOP may also comply with the laws of the land as given in Section 139 of the Code for Civil Procedure, 1908.
8. It is understood from anecdotal/hearsay statements of office bearers of different State chapters of AFA that Directorate of Air Veterans has informed though not in writing that the affidavit from 1st Class Magistrate has been insisted up on by Principal Controller of Defence Accounts (Pension)/Joint Controller of Defence Accounts (Air Force). However, reference numbers of the letter/correspondence from PCDA (P) or JCDA (AF) rejecting affidavits for change/correction of name of spouse/children/dependents signed by other than “1st Class Magistrate,” if any have not been placed on the portal/website of DAV or Air Force Association. Publication of the objections of PCDA(P)/JCDA (AF) would enable action under the RTI Act, 2005 just as it was done for truth about Migration policy for Legacy pensioners (reply “It is agreed to that proposal for seeking consent from pensioners before migration to SPARSH was sent to Ministry vide UO No. 5702/AT-P/CPP/Vol II dated 09.3.2017. However it has already been intimated vide our reply dated 10.08.2022 (under trailing mail) that no approval is available with the Department in this regard.” JCDA (AF) Ms Sonal Mehlawat, IDAS, took a screenshot on 20 Aug 22 and has transferred it to PCDA (P) on 25 Aug 22.)
9. It is a well know fact that there is immense pressure on the Courts to dispose of as many cases as possible and even the Apex Court has been reported to have disposed off a record number of cases in 4 days (https://www.hindustantimes.com/india-news/supreme-court-wraps-up-1-8k-cases-in-4-days-under-cji-lalit-101662188348087.html). Magistrates are under similar pressure, so Court clerk(s) have asked for a GoI document that overrules Sections 122 and 139 of Code of Civil Procedure.
10. It is also known that certain States require Govt Gazette notification for correction or change of name of only Govt employees like Karnataka https://legaldesk.com/affidavits/affidavit-for-change-of-name
Concluded