EMPEROR Vs. MOHDMEHDI

JUDGEMENT

(1.) Two questions have been referred to the Pull Bench by the Division Bench before which the appeal came up for hearing. These are: (1) Is permission of the authorities mentioned in Section 83, Registration Act, necessary before an accused can be prosecuted under Section 82, Registration Act (2) Does the permission accorded by the Inspector-General of Registration on 28 August 1933, validate the trial? It appears that the accused persons were prosecuted under Section 467 read with Section 471, Indian Penal Code, and under Section 82, Registration Act, (10 of 1908). The case against them was that a forged document purporting to bear the thumb-impression of another person was executed and then presented for registration before the Sub-Registrar and a false person was identified as the executant. No permission of either the Inspector-General or the Registrar or the Sub-Registrar was obtained before the inquiry was made by the Magistrate. He took action on the complaint made by a Dy. Collector who was hearing a mutation case following upon the registration of the disputed document. The learned Magistrate committed the accused to the Sessions Court. The order of reference assumed that no objection was taken on behalf of the accused before the Magistrate as to the absence of permission. The Sessions Judge appears to have accepted the commitment, fixed a date for the trial and then took evidence. Before the hearing commenced a letter was received, which had been signed on behalf of the inspector-General of Registration and which granted the permission. The learned Sessions Judge after concluding the trial came to the conclusion that the want of sanction was a fatal defect to the prosecution. He then acquitted the accused on the main ground that no such sanction had been obtained before the commitment to his Court.

(2.) The Government have appealed from the order of acquittal, but this Full Bench is concerned with the two questions of law which have been referred to it for answer. Part. 14, Registration Act, provides penalties for certain offences. Under Section 81 there is a penalty for incorrectly endorsing, copying, translating or registering a document with intent to injure some person. Then under Section 82, whoever intentionally makes a false statement, whether on oath or not, or intentionally delivers to a registering officer, a false copy or translation of a document, etc., or falsely personates another, and in such assumed character presents any document, or makes any admission or abets anything made punishable by the Act, is punishable with imprisonment for a term which may extend to seven years, or with fine, or with both. Sub-section (4), of Section 83 reads as follows : "A prosecution for any offence under this Act, coming to the knowledge of a registering officer in his official capacity, may be commenced by, or with the permission of, the Inspector-General...the Registrar or Sub-Registrar in whose territories, district or sub-district, as the case may be, the offence has been committed." Sub-section (2) provides as follows : "Offences punishable under this Act shall be triable by any Court or officer exercising powers not less than those of a Magistrate of the Second Class." The language of the section is admittedly very unhappy and has been the source of considerable divergence of opinion. The first difficulty is caused by the use of the word "may," and it has been suggested in some cases that the section is not mandatory, but only directory, and that a private person can start a prosecution under Section 83, Registration Act, even without the permission mentioned therein. The argument is that the object of insisting on permission is for regulating the conduct of the registration authorities, and the section does not prevent private individuals from prosecuting accused persons under the section. On the other hand, it has been suggested that the word "may" in the section stands for the word "must" and the section is mandatory. There is difficulty in this view, because it could not have been intended that the Inspector-General of Registration or the Registrar or the Sub-Registrar is bound to commence a prosecution. Of course, if the intention of the Legislature had been that there is an absolute prohibition against the commencement of any prosecution without previous permission, the more appropriate phraseology to use would have been "no prosecution shall be commenced without the permission, etc." The language unfortunately is not so clear.

(3.) But it is obvious that Secs.81 and 82 create new offences which do not necessarily come within the scope of the provisions of the Indian Penal Code. It is also clear that in some cases a higher maximum of punishment is prescribed than is the case under the corresponding sections of the Indian Penal Code. If an act amounts to an offence under any other law, it is open to a private individual to file a complaint and have the accused person convicted; but if he wishes to take advantage of the provisions of Secs.81 and 82 of the Act, it is necessary that he should follow the procedure laid down in the Act. The necessary result of taking a contrary view would be that private persons would be entitled to file complaints against registering officers, although the higher registration authorities have inquired into the matter and are satisfied that no offence has been committed and refuse to give permission for their prosecution. The offences contemplated in these sections are principally offences committed against the registering authorities, though of course indirectly private persons may also be injured thereby. So far as the rulings in this Court are concerned they are all one way. We may refer to the case of Emperor V/s. Jiwan 1915 All. 114, Emperor V/s. Husain Khan 1916 All. 64, Emperor v. Husain Khan 1917 All. 410 and Mohan Lal V/s. Emperor 1921 All. 205.