ROSHANA MICHAEL v. SALEH, OIC (CRIMES), POLICE STATION, NARAHENPITA AND OTHERS SC (FR) NO. 1/2001

The petiitoner, a visiting domestic servant worked in the house of her employer until 12.15 pm on 03. 12. 2000. At about 6 pm., the employer’s wife (the complainant) observed her husband’s gold wristlet watch missing. She got down the petitioner and questioned her but the wristlet watch was not found. According to the Information Book of the Narahenpita Police Station, the complainant had made a complaint regarding the loss of the wristlet watch on 04. 12. 2000 at 9.10 am.; the 1st respondent (Inspector of Police) and another officer left for inquiry at 10.00 am, in a private vehicle; they went to the petitioner’s house for investigation; arrested the petitioner at 5.10 pm on suspicion and brought her to the Police Station at 6.30 pm. Her statement was recorded on 05. 12. 2000
at 7.30 am and she was produced before the Magistrate at 11.30 am the same day. The proved facts showed that the 1st respondent and two police officers and the complainant had visited the petitioner’s house at 8 pm on 03. 12. 2000 in a private car and assaulted the petitioner and brought her to the complainant’s house. After a futile search for the wristlet watch there and a lot of threatening and harassment on the way, the Police brought her to the Police Station. Whilst in Police custody she was assaulted with a rod and a pole with the object of extracting a confession of theft of the wristlet watch. A doctor also witnessed the petitioner’s condition at the Police station and saw injuries. A complaint was also made to the Magistrate regarding the assault. The JMO”s evidence supported the petitioner’s version of the alleged assault.

Although a person who makes an affidavit is usually described as a “deponent”, it would not be incorrect to describe him as a “declarant” (see sections 181 and 438 of the Civil Procedure Code). The use of the word “declaration” in the jurat does not vitiate the affidavit. While it is inappropriate for a person to take an oath or swear, if
for him an oath has no binding force, or if he has a conscientious objection to make an oath, the converse is not true. A person who does believe in the binding force of an oath may make, without doing 280 violence to his beliefs, a solemn declaration or affirmation. Of course such an affirmation alone may not suffice to constitute a valid affidavit,
but the addition of an affirmation will not vitiate an otherwise valid oath; and the description of the petitioner as an “affirmant” did not invalidate the oath which she took. As for the jurat, it is true that it is the person administering the oath or affirmation who must state in the jurat that the oath or affirmation was administered in his presence, and the place and date. The jurat is defective as it purports to be the petitioner’s statement. However, the Commissioner’s attestation confirms that the document was signed under oath in his presence. 290 Had that affidavit been vital, I would have adjourned the hearing and given the petitioner an opportunity of correcting that formal defect,
but that was unnecessary as the other affidavits were more than adequate.

full judgement here

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