Patna High Court
Hirday Narain Singh And Anr. vs Emperor on 3 July, 1929
Equivalent citations: 119IND. CAS.888, AIR 1929 PATNA 500
JUDGMENT Wort, J.
1. This rule was granted with regard to an order made by the Sub-Divisional Officer dated 28th May, 1929, in which the applicants before me petitioned the Court to stay a criminal prosecution pending the hearing of a civil action. The Sub Divisional Officer declined to accede to the petition, and this Court was moved by Mr. Sinha on behalf of the applicants first, against the order which I have stated and also against the prosecution of the two petitioners under Section 82, Registration Act (XVI of 1908) for an offence under Section 471, Indian Penal Code.
2. It is necessary to state a few of the facts in order to appreciate the arguments which have been addressed to the Court in support and against the rule. The second petitioner is the servant of the first. An application was made in the Motihari District for the registration of a mortgage-deed and it appears that the person executing it did not appear before the Registrar. The Registrar, therefore, refused to register the document. As a result the petitioners filed a notice under Section 73, Registration Act. The matter was referred by the Registrar to the Sub-Registrar and it appears that without hearing evidence he came to the conclusion that the document or the signature was forged and ordered the petitioners to be prosecuted under Section 82, Registration Act and Section 471, Indian Penal Code.
3. The first point taken by Mr. Sinha on behalf of the petitioners is that having regard to the provisions of Section 74, Registration Act, the prosecution at any rate for an offence under Section 82 was illegal and ought to be set aside; and for that purpose reliance is placed on the decision in Mata Dayal v. Queen-Empress 24 C. 755. It is unnecessary to go into this matter elaborately as the learned Assistant Government Advocate on behalf of the Crown does not resist Mr. Sinha's application in this regard. I concur with the view taken in the case just quoted which lays down that the provisions of Section 74, Registration Act, are mandatory and that the District Registrar had no jurisdiction to refer the matter to his Deputy the Sub-Registrar; and, secondly, that any proceedings or order made by the Sub-Registrar ordering the petitioners to be prosecuted is illegal having regard to the plain terms of the section. I have already said that I agree with the view expressed and, as the point is not resisted by the learned Assistant Government Advocate, I must order that so far as the order relating to the prosecution under Section 82, Registration Act, is concerned, it must be set aside.
4. There are different considerations as regards the prosecution for an offence under Section 471, Indian Penal Code. It is quite clear that Section 82, Registration Act, creates a substantive offence and provides for the punishment thereof. But the offence alleged to have been committed under Section 471. Indian Penal Code has no relation to the Registration Act and is governed by principles entirely different from those which relate to the prosecution under Section 82, Registration Act. So far as the order for that prosecution is concerned, the prosecution under Section 471 is governed by the provisions of the Criminal Procedure Code. There is no written complaint in this case and it will be seen that the provisions of Section 195, Criminal Procedure Code do not govern an offence which has been committed before the Registration Court. Section 195 (as is well-known) provides that with regard to certain offences, amongst which is included an offence under Section 471, Indian Penal Code, there must be a complaint in writing by the presiding Judge; but Sub-section (2) of that section expressly excludes the Court of a Registrar or Sub-Registrar under the Registration Act. And although 1 do not in any way countenance as irregular the order of the Registrar or Sub-Registrar, at the same time, even assuming that the order of the Registrar referring the matter for enquiry to the Sub-Registrar is irregular, that in no way affects the validity of the order of prosecution under Section 471, Indian Penal Code. So far, therefore, at any rate, as that part of the order is concerned it must remain.
5. The next question raised by Mr. Sinha is that which is dealt with in the order of 28th May, 1929, namely, that the proceedings should be stayed pending the suit which the first petitioner has brought under the Registration Act to establish his right to have this document registered under the Act. I am referred in this connexion to a decision of this Court in Phuleshra Kuer v. Emperor 62 Ind. Cas. 185 : 1 P.L.T. 697 : 22 Cr. L.J. 489 in which case there was a prosecution under Section 82, Registration Act, and that prosecution was stayed pending the civil proceedings. In my judgment this is a matter for the discretion of the lower Court. The case to which I have referred has been considered in the case of Chitrala Ramiah v. Natu Kula Ramiah 104 Ind. Cas. 252 : A.I.R. 1927 Mad. 778 : 50 M. 839 : 26 L.W. 113 : 39 M.L.T. 14 : 53 M.L.J. 265 : (1927) M.W.N. 672 : 28 Cr. L.J. 812. The learned Judge in that case reviewed some of the authorities, amongst others the one which I have just quoted, and, in my judgment, the reasoning which is given by the learned Judge in that case is sound and ought to be followed. The effect of the decision is that there is no invariable rule as regards the staying of criminal proceedings pending the issue in a civil suit. It would seem to me to be an extraordinary proposition of law if there was such a rule. Jackson, J., in delivering his judgment in that case states:
It must be assumed that in either Court (Criminal or Civil Court) justice will be done and which Court precedes the other is merely a question of convenience. Of course, in those cases arising out of a disputed title on which it is difficult to draw the line between bona fide, claim and criminal trespass, if the title is already the subject-matter of a civil suit before the institution of criminal proceedings, it may be advisable for the criminal to abide the civil trial and then he refers to the decision in Khobhari Rai v. Bhagwat Rai 41 Ind. Cas. 147 : 1 P.L.W. 793 : 18 Cr. L.J. 771. In my judgment undoubtedly this is a matter for the discretion of the trial Court and the trial Court has exercised its discretion and in criminal revision this Court cannot interfere with the order, there being no suggestion that the Court in exercising its jurisdiction has acted in the manner which is unjudicial.
6. The result is that the prosecution of the petitioners for the offence under Section 82, Registration Act, will be set aside, otherwise the Rule must be discharged.