Patna High Court
In Re: Musammat Gobindia And Ors. vs Emperor on 24 March, 1924
Equivalent citations: 81IND. CAS.124
JUDGMENT Kulwant Sahay, J.
1. This is a reference by the Sessions Judge of Patna recommending that the order of the Sadar Sub-Divisional Magistrate of Patna, dated February the 2nd, 1924, committing Musammat Gobindia, Punai Mahto and Dhanukhdhari Mahto for trial by the Court of Session for an offence under Section 82 of the Indian Registration Act may be set aside. The facts are shortly these:
2. There were two brothers Aklu and Sukhlal and one Chamru was their cousin. The accused Musammat Gobindia is the widow of Chamru. It appears that at time of the preparation of the Survey Record of Rights Chamru was dead and the holding in dispute was recorded in the names of Sukhlal, Aklu and Musammat Gobindia. Subsequently Sukhlal died. On the 16th July 1923 Musammat Gobindia executed a deed of surrender in favour of Punai Mahto and Dhanukhdhari Mahto, the other two accused persons, surrendering the whole holding in their favour on the allegation that Aklu was also dead and that Punai and Dhanukhdhari were the next reversioners. On the 8th December 1923 Aklu filed a complaint before the Sub-Divisional Magistrate alleging that the recital in the deed about the death of Aklu was false and that he was the person who was referred to in the deed as being dead, that he was still alive and that the recital in the deed was falsely made in order to deprive him of his property. He, therefore, prayed to summon the accused persons for an offence under Section 82 of the Indian Registration Act. The accused were summoned and the learned Sub-Divisional Magistrate by his order dated the 2nd February 1924 has committed them for trial before the Court of Session for an offence under Section 82 of the Act. The learned Sessions Judge has recommended that the commitment order should be set aside on the ground'that the facts set forth in the charge do not constitute an offence under Section 82 of the Indian Registration Act, nor do the facts as they appear from the evidence recorded by the Committing: Magistrate constitute an offence under any other law. Section 82 (a) of the Registration Act provides: "whoever intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act; shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both."
3. The proceeding or enquiry referred to in the section must be a proceeding or enquiry as prescribed by the Act. The Act nowhere prescribes any enquiry by the Registration Officer as regards the truth or falsity of any recital in a deed. All that the Registering Officer is required to enquire into is as to whether the document presented before him for registration was or was not executed by the person by whom it purports to have been executed. The enquiries prescribed are those provided for in Section 34 and Section 35 of the Registration Act, and I am clearly of opinion that the Sub-Registrar had no jurisdiction to enquire as regards the truth of or falsity of any recital in the deed and the enquiry as contemplated by Section 82 Clause (a) does not refer to an enquiry as regards the truth or falsity of any recital in the deed. In this view of the case I agree with the learned Sessions Judge and hold that no offence under Section 82 of the Registration Act can be brought home to the accused in the present case and the order of commitment must be quashed under Section 215 of the Criminal Procedure Code.
4. Another ground has been taken before me by the learned Vakil who has appeared on behalf of the accused persons to the effect that the prosecution was bad in law inasmuch as no permission, had been given to the complainant under Section 83 of the Act, This was not the ground taken by the teamed Sessions Judge and having regard to the fact that no prosecution under Section 82 can be sustained in the present case, it is not necessary to decide this point. There has been a divergence of opinion on this point. In the case of Hussain Khan v. Emperor 36 Ind. Cas. 145 : 38 A 354 : 14 A.L.J.412 : 17 Cr. L.J 465 it seems to have been held that the permission referred to in Section 83 of the Registration Act was necessary in order to sustain a prosecution fpr an offence under Section 82 of the Act; whereas in the Full Bench case of the Calcutta High Court in Gopinath v. Kuldip Singh 11 C. 566 (F.B.); 5 Ind. Dec. (N.S.) 1136 it was held that no permission was necessary for a complainant to institute a charge under Section 82 of the Registration Act. This decision was followed in the Madras High Court in the case of In re Piramu Nadathi 38 Ind Cas. 976 : 40 M. 880 : 21 M.L.T. 118 : 5 L.W. 414 : 18 Cr. L.J. 416. I am inclined to agree with the decisions in the Calcutta and Madras High Courts and to hold that no permission would be necessary under Section 83 of the Act. It is, however, not necessary to discuss this point.
5. The result is that the order of commitment passed by the Sadar Sub-Divisional Magistrate is quashed.