DHARMADEO RAI

RAMNAGINA llAI

January 18, 1972

(J. M. SHELAT AND K. K. MATHEW, JJ.]

Indian Registration Act, 1916, 4' 83(1)-Section is permissive and not prohibitive-Does not prevent an aggrieved private person from filing a complaint.

A private complaint in connection with the forgery of a zerpeshgi lease and its registration under the Indian Registration Act was filed against several persons including the appellant.

The appellant was aC<1uitted by the trial court.

In an appeal .filed by the complainant the High Court .cpnvioted the appellant under s. 82( d) of the Indian Registration Act for abetment of an offence under s. 82 after overriding his contention that the complaint was not maintainable without the permission as requied by s. 83 of the AcJ.

Under s. 83(1) a prosecution for any offence under the 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 the Sub-Registrar in whose territories, district or sub~ distriGt as the case may be, the offence has been committed. In appeal by special leave before this Court the only point argued on behalf of the appellant \\:as that the complaint was incompetnt as it wa-s filed _by a person \vithout obtaining the necessary permission under s. 83 of the Act and therefore the conviction of the appellant was bad and must be set aside.

HELD : On a reading of the section it would be clear that it deals only \\'ith procution for an offence under the Act coming to the knowledge of the Registering Officer in his official capacty. It, in effect, provides that \vhere an offence comes to the knowledge of the Registering Officer in his official capacity, a prosecution may be commenced by or with the pennission of any of the officers mentioned in the section. The section can possibly ha\"e no applic+ation to cases in which the offences are committed under the Act, but the offences do not come to the knowledge of the .Re

gistering Officer in his official capacity. 'fl 13 HJ

The section is not prohibitory in that it does not preclude a private

peron from commencing a prosecution.

Even in a case where the commission of offence comes to the knowledge of the Registering Offir in his official capacity, the section does not prohibit a private person.from commencing a prosecution as the section is clearly permissive in Ianguae and intent. [114 BJ

One would have expected a more apt phraseology if the purpose of the Legislature was to prohibit the prosecution of an offence under the Act by a private individual.

Seeing that a private person will be mdre seriously injured by the action of an offender who not only forges a document but endeavours to give it a higher effiejacy by registering it, there is no reason why the private person should be deprived of the liberty to J*ose cute the offender.

There is also no reaoon why a regi!; tering officer guilty of an offence under s. 81 of the Act should get Immunity from prosecution by a private individual injured ther<lby, In. s. 195(1) of the Criminal

Procedure Code, s. 70(1) of the Indian Stamp Act ands. 29 of the Indian A Arms Act, !878 the language employed is prohibitory in character. Section 83 (I) of the Act is not prohibitory either in terms or in intention.

[!16A-G]

The view taken by the Allahabad and Rangoon High Courts that the weird 'may' ins. 83(1) should be read as 'must' was not correct. [114 H•l 15 DJ

Gopinatlz v. Kulrflp Singh and Anr., I.LR. Calcutta Series, Vol. XI, 566, Re Piranu Nadathi and Anr. and Emperor v. Yesa Nana Didwagh and Ors., A.LR. 1937. Bombay 191, approved.

Nge Pan Gaing and Ors. v. King Emperor, A.I.R. 1927 Ranaoon 61 and Emperor v. Mohd. Mehdi and Ors., A.l.R. 1934 Allahabad, 963, dis approved.

Ganga Dibya and Anr. v. Emperor, A.LR. 1943 Patna 227 and Habib C Shah v. Mehda Shah, A.l.R. 1960 J & K. 18, referred to.

K. M. Kane.vi v. State of Mysore, [11968] 3 S.C.R. 821. held inapplicable.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 33 of 1969.

Appeal by Special Leave from the Judent and Order dated the 12th November, 1968 of the Patna High Court in Criminal Appeal No. 58 of 1966.

S. N. Prasad, for the appellant.

K. K. Sinha, for the respondent.

R. C. Prasad, for the State of Bihar.

The Judgment of the Court was delivered by

Mathew, J.

This appeal, by special leave, is directed against the judgment passed in Criminal Appeal No. 58/1966 F whereby the High Court of Patna set aside the acquittal of the appellant by the Additional Sessions Judge of Chapra and convicted him under section 82 ( d) of the Indian Registration Act (hereinafter referred to 'as the Act) and sentenced him to six months' rigorous imprisonment

One Ramnagina Rai filed a complaint before the Sub-Divi- G sional Officer, Sadar, Chapra, against Bishundeo Rai, Sheo Deo Prasad Rai, Mohan Rai, Jangli Rai and the appellant stating that they entered into a conspiracy and forged a Zerpeshgi deed on 25-1-1964 purporting to be executed by Bishundeo Rai and Nageshwar Rai in favour of Jangli Rai in which Sheo Deo Prasad Rai falsely personated Nageshwar Rai. The Sessions Court, to which the case was committed, after trial, came to the conclusion H thatSheo Deo Prasad Rai, posing as Nageshwar, son of Bujhawan, executed the Zerpeshgi deed and that Sheo Deo Prasad

A Rai falsely personated as Nageshwar before the Sub-Registrar,

tha'. no such person as Nageshwar existed and that Bishundeo . Rai, the father of Sheo Deo Prasad Rai and co-executant of the document was a party to the forgery.

The Court, therefore, convicted Bishulldeo Rai and Sheo Deo Prasad Rai of offences under section 467 and section 120 B of the Indian Penal Code. Bishun- 11 deo and Sheo Deo Prasad were also convicteq under section 82(d) and 82(c) respectively of the Act.

The remaining three accused were given the benefit of doubt and acquitted.

Two appeals were filed from this judgment to the High Court, namely, Criminal Appeal No. 205/1966 and Criminal Appeal No. 58/ 1966.

We are only concerned with the appeal filed by the com C plainant against the acquittal of the appellant, namely, Criminal Appeal No. 58/ 1966. Jn that appeal, the High Court came to the conclusiQn that the Sessions Judge was wrong in acquitting the appellant as there was clear evidence that it was he who identified Sheo Deo Prasad Rai as Nageshwar, son of Bujhawan, before the Sub-Registrar.

The Court, therefore, convicted him under section 82(d) of the Act for abetment, of an offence under D s. 82 after overruling his contention that the complaint was not maintainable without the permission as required by section 83 of the Act.

In this Court, the only point argued on behalf of the appellant was that the complaint was incompetent as it was filed by a per- E son without obtaining the necessary permission under section 83 of the Act and, therefore, the conviction was bad and must be set aside. Section 83 of the Act provides :

"83 ( 1) A prosecution for any offence under this Act oming 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 the Sub-Registrar, in whose territories, district or subdistrict, as the case may be, the offence has been committed.

(2) Offences punishable under this Act shall be triable by any Court or officer exereising powers not

' G less than those of a Magistrate of the second class."

On a .reading of the section, it would be clear that it deals only with prosecution for an offence under the Act coming to the knowledge of the Registering Officer in his official capacity. It, in effect, provides that where 8!l offence comes to the knowlge H of the Registering Officer in his official capacity, a prosecution may be commenced by or with the permission of any of the officers mentioned in the section.

Th~ section can possibly have no application to cases in which offences are committed under the

Act, but the offences do not come to the. knowledge of the Regis- A tering Officer in his official capacity.

If the Registering Officer does not know in his official capacity that the document produced before him is a false document or that the person appearing before him is personating some other person, the section has no application.

The section is not prohibitory in that it does not preclude a private person from commencing a prosecution. Even B in a case where the commission of an offence comes to the know ledge of the Registering Officer in his official capacity, the section does not prohibit a private person from commencing a prosecu tion as the section is clearly permissive in its language and intent.

In other words, the section is an enabling one. It enables the rersons mentioned therein to commence a prosecution in cases C where the commission of the offence under the Act comes to the knowledge of the Registering Officer in his official capacity. The Section enables the officers named to use their official position for the purpose of prosecution without. personal risk.

In Gopinath v. Kuldip Singh and otliers(1), the question whether the section prohibits a private person from commencing D a prosecution without the permission as provided in the section, came up for consideration and a Full Bench of the Calcutta High Court answered the question by saying that the section is not prohibitory in character and that it does not preclude a private person from commencing a prosecution for an offence under the Act without the permission as envisaged in the section. This case E has been followed. by the Madras High Court in Re Piranu Nadathi and others('). There also the Court has taken the view that the section is an enabling one in that it only authorises the authorities ment.ioned therein to commence a prosecution, and does nut prohibit a private person from commencing a prosecu tion without the permission as required by the section. In r Emperor v. Yesa Nana Bidwagh and others(•), Beaumont; C.J., speaking for the Court, said that the section is intended to provide only for cases where the knowledge of an offence under the Act comes to a Registering Officer in his official capacity and that it has no application when he has no such knowled$e• .. and that even in cases where he has knowledge of the comm1ss1on of the offence in his official capacity, the section is only enabling and G does not preclude a private person from launching a p.rosecution for the offence.

The same view was taken by a Bench . of the Patna High Court in Ganga Dibya and another v. Emperor(<) and also by the High Court of Jammu and Kashmir in Habib Shah v. Mehda Shah(").

In Nge Pan Gaing and other v. King Emperor('), the Rangoon High Court held that the word 'may' ff

(1) l.L.R. Calcutta Series, Vol. XI, 566.

(3) A.1.R. 1937 Bombay 191.

(5) A.IR. 1960 J & K 18.

(2) J.L.R. 40 Madras 880.

(4) A.I.R. 1943 Patna 2'1:7.

DHAIWADBO v. RAMNAGINA (Mathew, J.) 115

A in section 8 3 of the Act should be read as equivalent to 'must be•

and that a prosecution for an offence under the Act coming to theknowledge of a Registering Officer in his official capacity cannot be commenced by a private person without the permission mentioned in the section. A Full Bench il the Allahabad High Court, in Emperor v. Mohd. Mehdi and others('), took the view B that section 83 lays down a special procedure for prosecution of

the offences created by the Act and, therefore, that procedure should be followed; that although the word 'may' occurring in the section cannot be read as 'must', it has to be read in the context as having a mandatory character.

The Court said that the offences contemplated by sections 81 and 82 of the Act are c offences committed against registering authority, that only in-· directly that private persons would be affected and, therefore, the provisions of the section are prohibitory in character.

In our view, this reading of the section is inadmissible for the obvious reason that the section, as we have said, provides only for one type of cases, namely, cases in which the commission of an offence under the Act comes to the knowledge of the Registering l> Officer in his official capacity and even there, the language of the section is permissive and not mandatory.

Section 81 of the Act makes the endorsing, copying, translating or registering of a document by a Registering Officer charged with those duties in a manner which he knows or believes to be incorrect, intending

thereby to cause injury as defined in the Penal Code to any person, an offence punishable with impnsonment which may extend to seven years or with fine or with both.

Section 82 deals with four classes of offences classified under (a), (b), (c) and (d) of the section.

Clause (a) deals with intentionally make false statements before officers acting under the Act, (b) with intentionally delivering to a registering officer a false copy or translation of a document or a false copy of a map or plan; and ( c) with false personation and presentation of a document or the making of an admission or a statement in the assumed character in any proceeding or enquiry under the Act.

Clause ( d) deals with the abetment of the above offences.

If the authorities mentioned in section 83 of the Act were tc>· collude with the person guilty of an offence under section 82 of the Act, or if they fail to launch a pution against the registering officer for an offence under section 81 of the Act, therewould be a total bar to prosecution by a private person in case we accept the reasoning of the Rangoon and Allahabad High Courts.

We do not think that a construction which would lead to that

result is warranted by the plain language of fhe section.

(I) A.l.R. 1934 A11ahabad, 963.

One would have expected a more apt phraseology if the pur- A

pose of the Legislature was to prohibit the prosecution of an offence under the Act by a private individual.

Seeing that a private person will be more seriously injured by the action of an offender who not only forges a document but endeavours to give it a higher e_fficacy by registering it, we can perceive no reason why the private person should be denied the liberty to prosecute B the offender.

We also see no re?son why a registering officer guilty of an offence under section 81 of the Act should get immunity from prosecution by a private individual injured thereby.

Counsel for the appellant referred to the decision of this Court in K. M. Kanavi v. State of Mysore(') and contended that section 83 of the Act is prohibitory in character. There is no merit in c this contention as the language of the provision there considered was totally different.

It is permissible in this connection to look into the language employed in similar sections in other statutes where the legislature intended a prohibitory effect.

Section 195(1) of the Criminal Procedure Code provides that D "No Court shall take cognizance, (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned".

Section 70(1) of the Indian Stamp Act states that

"No prosecution in respect of any offence punishable under the Act. . . shall be instituted without the sanction of . the Collector or such other officer as the State Government generally, or the Collector specially authorises in that behalf".

Section 29 of the Indian Arms Act, 1878, says:

"No proceedings shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the District or, in a presidency town, of the Commissioner of Police".

In ull these sections, the language employed is prohibitory in G character.

Section 8 3 ( 1) of the Act 1s not prohibitory either in terms or in intention.

We think that, on the point under consideration, the decisions in Gopinath v. Kuldip Singh and others('), Re Piranu Nadathi and others('), and Emperor v. Yesa Nana Didwagh and others(') lay down the correct law.

(I) [1968] 3 S.C.R. 821.

(2) J.L.R Calcutta, Vol. XI l66. (.l) l.L.R. 40 Mad•as 880.

(4) A.J.R. 1937 Bom. 191.

We cannot appreciate or approve the reasoning in Emperor

v. Mohd. Mahdi and others(') lliild Nga Pan Gaing and others v.

King Emperor(') or the cases followed in these rulings.

The result is that the appeal has to be dismissed and we do so.

G.C.

Appeal dismissed.