Karnataka High Court
B.G. Gangadharappa vs Tahsildar, Soraba Taluk, Soraba on 16 November, 1994
Equivalent citations: 1995CRILJ2820, ILR1994KAR3509, 1995(1)KARLJ258
ORDER
1. This petition is filed by the respondent in Criminal Revision Petition No. 109/88 challenging the legality of the order dated 1-10-1991 passed by the Addl. Sessions Judge, Shimoga, allowing the revision petition filed by the respondent and setting aside the order passed by the Addl. JMFC., Sagar in C. Misc. 20/87 allowing the petition directing the village accountant to register the death of Smt. Gowramma on 25-1-1985.
2. The petitioner filed a petition in C. Misc. 20/87 under Section 13(3), of the Registration of Births and Deaths Act, 1969 ('the Act' for short) read with Rule 10(3) of the Karnataka Registration of Births and Deaths Rules 1970, praying for a direction to the village accountant of Amachi village to register the death of his mother-in-law Smt. Gowaramma, wife of Narayanappa at Amachi on 25-1-1985. The petitioner's case was that his mothers-in-law Smt. Gowramma died in her house at Amachi on 25-1-1985, though the fact of death was informed to the village accountant, the same had not been entered in the death register that petitioner came to know about this fact when he sought for a death certificate, that when he presented an application to the respondent-tahsildar he was directed to secure an order from the Court and at that stage he has filed this petition. The respondent in the objections stated that the correctness of the date of the death mentioned in the petition was not admitted and that the petition was not maintainable under law and that he also had no locus standi to file the petition.
3. The learned JMFC recorded the evidence of the petitioner and on the basis of the material on record he held that the petitioner had made out that his mother-in-law died on 25-1-1985 and consequently he allowed the petition and directed the respondent to register the death of Smt. Gowramma on 25-1-1985.
4. The respondent preferred a revision petition before the Sessions Judge in Cr.R.P. 109/88. One of the contentions raised before the Sessions Judge was that the J.M.F.C. had no jurisdiction to entertain an application under Section 13(3), of the Act and that it was only the Executive Magistrate who was competent to deal with that matter. The learned Sessions Judge relying entirely on copy of a letter dated 16-1-1989 issued by the office of the Chief Registrar of Births and Deaths, Bangalore, has held that, it is only the executive magistrate who has jurisdiction to make an order under Section 13(3) of the Act and that the judicial Magistrate has no jurisdiction to pass such an order. He also disagreed with the lower Court's finding that the petitioner had established the date of death of his mother-in-law as 25-1-1985. On these findings he allowed the revision petition and set aside the order of the magistrate.
5. In this revision the learned Counsel for the petitioner has produced a Criminal Circular No. 1/80 issued by the High Court of Karnataka as well as a Circular dated 17-1-1991 issued by the office of the Director of Prosecution and Government Litigation in Karnataka to contend that actually it is the judicial Magistrate who has jurisdiction to try the petition under Section 13(3), of the Act and not the executive magistrate.
6. The learned State Public Prosecutor did not dispute the fact that the Directorate of Prosecution had issued the circular in question, he was also of opinion that it would be the judicial Magistrate first class who has jurisdiction to entertain petition under Section 13(3), of the Act.
7. The criminal circular No. 1/80 issued by the High Court does not state that it is only the judicial Magistrate first classs who has the jurisdiction to deal with the application under Section 13(3), of the Act. All that this circular purports to do is to draw the attention of the judicial magistrates and executive magistrates in the State to a reference dated 18-1-1980 received from the Secretariate, Government of Karnataka, Planning Department, regarding the powers to be exercised by executive magistrates in the cases filed under Section 13(3) of the Act. That circular points out that on an earlier occasion the same Government by letter dated 18-7-78 bad opined that such powers have to be exercised by the judicial Magistrate. Under that circular all the judicial and executive Magistrates of the State have been informed to look into this aspect before proceeding with the case filed under Section 13(3), of the Act. In effect the High Court has asked the Magistrates to consider the question of jurisdiction on the judicial side then proceed with the matter.
8. Section 13(1), of the Act stipulates that any birth or death, of which information is given to the registrar after the expiry of the period specified thereof but within 30 days of its occurrence shall be registered on payment of prescribed late fee. Sub-section (2), stipulates that any birth or death, of which delayed information is given to the registrar after 30 days but within one year of its occurrence, shall be registered only with written permission of the prescribed authority and on payment of prescribed fee and the production of an affidavit made before a notary public or any other authorised officer. Sub-section (3) which is relevant, reads as hereunder :
"Section 13(1) : Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee."
Rule 10 is similar to Section 13, and Rule 10(3), stipulates that any birth or death which has not been registered within one year of its occurrence shall be registered only on an order of the magistrate first class and on payment of late fee of Rs. 5/-.
9. The question whether magistrate of the first class referred to in the above provisions is a judicial magistrate first class or an executive magistrate first class, has to be decided judicially by the interpretation of the relevant provisions. The learned Sessions Judge seriously erred in simply following the opinion of the Registrar of births and deaths without he himself trying to find out as to whether the Magistrate first class referred to in the above provisions is a judicial magistrate or an executive magistrate. Sections 3(3) and 3(4), of Cr.P.C. read as follows :
"Section 3(3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this code, -
(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class;
(b) to a magistrate of the second class or of the third class, shall be construed as a reference to a Judicial Magistrate of the second class;
(c) to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan Magistrate;
(d) to any area which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a Magistrate of the first class or of the second class in relation to such area, shall be construed as a reference to the Metropolitan Magistrate exercising jurisdiction in such area.
Section 3(4) : Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters -
(a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning of a prosecution or withdrawing from a prosecution they shall, subject as aforesaid, be exercisable by an Executive Magistrate."
10. Section 3(3) clearly stipulates that any reference in any enactment passed before the commencement of the 1973 Cr.P.C. to a Magistrate of the first class shall be construed as a reference to a judicial Magistrate of the first class unless the context otherwise indicates. The Act as well as the rules in question have been passed before the coming into force of the 1973 Cr.P.C. There is nothing in the provisions of the Act to indicate that the Magistrate of the first class referred to therein is an executive Magistrate. As such by virtue of Section 3(3), Cr.P.C. the Magistrate first class referred to in the Act and rules must be taken to be judicial Magistrate first class.
11. With reference to Sub-section (4), of Section 3, Cr.P.C. some arguments were advanced on the question as to whether the functions to be discharged by the Magistrate while dealing with an application under Section 13(3) of the Act are judicial in nature or whether that function was executive in nature. I do not think that Sub-section (3) of Section 3, is controlled by Sub-section (4), of that Section. So far as Sub-section (3) is concerned where-ever there is a reference to Magistrate of the first class in any enactment passed prior to this Cr.P.C. it must automatically be taken to mean to be judicial Magistrate first class unless context of that Act otherwise requires. If there is nothing in the enactment to indicate otherwise then reference to Magistrate first class should be taken to be judicial Magistrate first class. Sub-section (4) of Section 3, Cr.P.C. would apply to a case where there is only a reference to the Magistrate and not Magistrate of the first class in any other law. It may also be noted that Sub-section (4) is not restricted in its applicability only to a law enacted prior to the 1973 Cr.P.C. It is applicable generally to all laws other than this Cr.P.C. In those cases if the other law refers only to Magistrate then the question whether it is judicial Magistrate or executive Magistrate who has to perform the function will have to be decided with reference to the nature of the function.
12. Even if it can be said that to decide whether the reference to the Magistrate made in the Act is a judicial or an executive Magistrate the nature of the functions will also have to be taken into account, still it will have to be held that the Magistrate referred to in the Act is a judicial Magistrate first class Section 13(3), stipulates that the order to be made by the Magistrate must be after verifying the correctness of the birth or death. Before the Magistrate can hold that a birth or death has taken place on any particular date he has to hold an enquiry and after assessing the material placed before Court by way of evidence has to form an opinion with regard to the date of death or birth of a person. The function to be exercised by a Magistrate, under Section 13(3), involves appreciation or sifting of evidence. In this view of the matter also it has to be held that the Magistrate of the first class referred to in Section 13(3), of the Act is only a judicial Magistrate.
13. In Madhusudan v. Asst. Registrar of Co-operative Society (1978 Cr LJ 570) a question arose as to whether the Magistrate first class referred to in Section 124(1), the West Bengal Co-operative Specieties Act (Act 38 of 1973) referes to a judicial Magistrate or an executive Magistrate. The Calcutta High Court held that as the West Bengal Co-operative Societies act came into force before the passing of the Cr.P.C. 1973 in view of Section 3(3), Cr.P.C. the reference to Magistrate first class in the above act must necessarily mean a judicial Magistrate.
14. The finding of the Sessions Judge that the judicial Magistrate first class, Sagar, had no jurisdiction to entertain the application under Section 13(3), of the Act cannot be sustained.
15. The learned Sessions Judge has disagreed with the factual finding of the magistrate regarding the date of death of petitioner's mother-in-law mainly on the ground that the petitioner's evidence had not been corroborated. The learned Sessions Judge was dealing with a revision petition and not an appeal. The learned Magistrate who recorded the evidence was satisfied about the reliability of the evidence. The respondent had cross-examined the petitioner and the Magistrate felt that nothing had been elicited in the cross-examination to indicate that the sworn testimony of the petitioner was not reliable. In the circumstances, the Sessions Judge should not have interfered with the finding of fact recorded by the Magistrate.
16. For the above reasons this petition is allowed. The order of the learned Sessions Judge is set aside and the order of the Magistrate is restored.
17. Petition allowed.