SANGEETA VYAS Vs. ASANSOL MUNICIPAL CORPORATION

JUDGEMENT

(1.) This application under section 482 read with section 401 of the Code of Criminal Procedure, 1973 filed by the petitioner, Sangeeta Vyas, through her constituted attorney Pundarick Upadhyaya, (brother of the petitioner), praying for setting aside of the order passed by the learned Additional Chief Judicial Magistrate, Asansol in Case No. C/411/2009 dated 28.5.2009 and to pass necessary direction.

(2.) The petitioner, Sangeeta Vyas, wife of Nitin Kumar Mulshankar Vyas, daughter of Vijendrarai Upadhyaya, was born on 19th June, 1965 in Midland Nursing Home, Burnpur Road, Asansol, Burdwan. THE certificate of the concerned Nursing Home was issued to that effect. Inadvertently her berth was not registered with the Asansol Municipality. She studied in Lareto Convent at Asansol and passed I.S.C. Examination in the year 1983. In the Pass Certificate of I.S.C. Examination, her date of birth was shown as 19th June, 1965. She is an Indian Passport holder. THE passport was issued in her favour on 30.7.1985, wherein her date of birth was recorded as 2.6.1966. She went to United Kingdom in the year 1991 and got married with Nitin Kumar Mulshankar Vyas on 18.10.1991. A marriage certificate was issued by the concerned authority of the United Kingdom, wherein her date of birth was shown as 2.6.1966 on the basis of the Passport issued on 30.7.1985. After marriage her title was changed and, accordingly, she obtained another passport dated 11.9.1995 wherein her name was recorded as Sangeeta Vyas but her date of birth was recorded as 2.6.1966 inadvertently in view of the Marriage Certificate. Another passport was issued in her favour by the concerned authority of the Government of India on 24.2.2006, which is valid upto 23.2.2016. In that passport, her date of birth was recorded as 2.6.1966 following the date of birth mentioned in the first passport, Marriage Certificate and the second passport. THE petitioner approached the Indian High Commissioner in London to get her date of birth rectified. She was informed that she may file an affidavit along with relevant documents before the Judicial Magistrate, First Class, in order to correct her date of birth and, thereafter, place it before the appropriate authority. She is facing various problems because of wrong recording of her date of birth in the passport, which allows her to remain in the United Kingdom till 2016. As she is resident of United Kingdom, she executed a power of attorney in favour of her brother, Pundarick Upadhayaya to file an application under section 13(3) of the Registration of Births and Deaths Act, 1969 before the learned Judicial Magistrate, First Class, having territorial jurisdiction over the place wherein she was actually born.

(3.) There is no dispute as to the fact that the local Municipal Corporation can register any birth even after a period of one year of its occurrence. But in that case, an order of Magistrate, First Class, or Presidency Magistrate, is required. What the Magistrate is to do is to verify the correctness of birth on payment of prescribed fee and pass an order directing the Municipality to get the birth recorded. The Magistrate is not required to register such an application as a petition of complaint. This type of application does not give rise to any criminal action. The power is to be exercised by the Judicial Magistrate, First Class, only or a Presidency Magistrate in order to help any person who failed to register his/her birth within the specified time. This type of application can well be entertained by the Magistrate as a miscellaneous application. The Magistrate, First Class, cannot avoid his duty. When the Act provides something to do in a certain way, the same is to be done in that way. The Act itself empowers a Magistrate to make an order for recording birth, which was not recorded within the prescribed time before the Municipality. THEREfore, the order impugned does not appear to be in consonance with the Act. Hence it is set aside. The learned Additional Chief Judicial Magistrate, Asansol, is directed to verify the correctness of the birth of the petitioner and issue necessary order directing the Municipality to register birth of the petitioner, if everything is found correct.