Madras High Court
Kotta Atchayya And Anr. vs Devarasetti Gangayya on 13 October, 1891
Equivalent citations: (1892)2MLJ64
JUDGMENT Arthur J.H. Collins, Kt. C.J. 1. The question referred to the Full Bench is whether a Registrar acting under Sections 72 to 75 of the Registration Act is or is not a court for the purposes of Section 195, Code of Criminal Procedure. 2. The facts of the case are fully set out in the order of Reference made by Muthusami Aiyar and Wilkinson, JJ. 3. The question is undoubtedly one of some difficulty as there is no definition of a "court" either in the Registration Act or in either of the Codes. 4. By Section 3 of the Evidence Act, a 'court' includes all persons except arbitrators legally authorized to take evidence. A Court of Justice is defined by the Indian Penal Code, Section 20, and is more restricted in its application. 5. Are we then at liberty to apply the definition of "court" given in the Evidence Act to the Registrar acting under Sections 72 to 75 of the Registration Act ? It is argued that the definition of 'court' given in the Evidence Act 1 of 1872 is framed only for the purposes of the Act itself and cannot be applied to cases under the Registration Apt, [see Queen Empress v. Tulja I. L. R., 12 B., 37]. If this argument prevailed the difficulty in holding the Registrar's enquiry to be one by a 'court' would be much increased. The duties of the Registrar on the point in question are defined by Sections 72 to 75 of the Registration Act and are as follows: 6. An application shall be made to him in writing, and the statements in the application shall be verified in the manner required by law for the verification of plaints. He shall then enquire (1) whether the document has been executed, (2) whether the requirements of the law have been complied with so as to entitle the document to registration. If he finds the document has been executed and that certain requirements have been complied with he' shall order the document to be registered. 7. The Registrar has power to summon and enforce the attendance of witnesses, he can compel them to give evidence " as if he were a Civil Court," and he has also a discretion as to the costs. 8. It is therefore clear to my mind that the Registrar exercises more than mere administrative functions--in the examination of witnesses he is bound to observe the rules of evidence, and he is to consider the weight and credibility of the evidence and form his own conclusions. The learned judges in I. L. R., 12 B, 37 appeared to consider the Registrar's functions purely administrative and the fact appears to have mainly influenced their judgment. 9. It appears also that in the former Code of Criminal Procedure the words used in Section 469 were "any Civil or Criminal or Revenue Court" whilst in Section 195 of the present Act the words used are "any court." I assume that it was the intention of the legislature to give the word "court " a more extended meaning than it had in the former Act. I am of opinion therefore that I am entitled to hold that the definition of court used in the Evidence Act applies to the Registrar holding an enquiry and taking evidence under the Registration Act and I therefore answer the question in the affirmative. Muthusami Aiyar, J.
10. For the reasons recorded in the order of reference to the Full Bench I am of opinion that the question must be answered in the affirmative.
Parker, J.
11. The question referred to the Full Bench is whether a Registrar acting under Sections 72 to 75 of the Registration Act is or is not a court for the purposes of Section 195 of the Criminal Procedure Code. The reference has been made in consequence of the decision in I. L. R, 12 B, 36, in which the decision of this Court in In re Venkatachala, I. L. R, 10 M, 154, was dissented from. The question therefore for decision is in what sense the word "court" is used in Section 195 Criminal Procedure Code. The Code does not contain any definition of the term and it is used in more than one meaning, in some places as signifying a personal judicial authority and in others, a place. In Section 352 the same word is used in the two significations but when used as signifying a person it doss not appear to be synonymous with "Court of Justice" as defined in Section 20 of the Indian Penal Code. The term "Court of Justice" (S. 20, I. P. C.) necessarily denotes a "judge" as defined in Section 19. Now illustration (d) to Section 19 declares that a Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial is not a judge. The explanation to Section 193, I. P. C. makes it clear, however, that a preliminary enquiry under Ch. XVIII of the Criminal Procedure Code is a stage of a judicial proceeding. There is again no doubt that a Committing Magistrate is a court within the meaning of the term as used in the Evidence Act and a Criminal Court within the definition of Section 6 of the Code of Criminal Procedure. He is also referred to as a court in Sections 842 to 344 of the Criminal Procedure Code. The contention therefore that the term "court" in the Criminal Procedure Code, Section 195, is necessarily identical with Court of Justice as limited in the Indian Penal Code definition cannot be supported.
12. In order to ascertain the sense in which the word is used by the legislature in Section 195 it will be useful to compare the present Criminal Procedure Code with its predecessor, Act X of 1872. Both the Codes have contained provisions for requiring previous sanction to certain prosecutions and also prescribing the procedure to be followed when a prosecution is instituted by a court suo motu. The sections dealing with these matters in the old Code X of 1872 are Sections 467 to 471. Sections 467 to 470 are reproduced in Section 195 of the present Code and Section 471 (as to prosecutions instituted by the court itself) in Section 476 of the present Code. It will be noticed that Section 468 of the old Code declared that a, complaint of an offence against public justice when such offence is committed before or against any Civil or Criminal Court, should not be entertained except with the sanction of the court, whereas the corresponding provision in the present Code, Section 195, (6) requires the same sanction when such offence is committed " in or in relation to any proceeding in any court." The words used in the latter Code are therefore wider in their signification. There is a similar alteration in regard to complaints of offences relating to documents --compare Section 469, Act X of 1872 with Section 195, Clause (c) of the present Code. But in re-enacting the procedure to be followed when the court itself acts we do not find the powers given to "any court" but to "any Civil, Criminal or Revenue Court." Had the enumeration of the three classes of courts, Civil, Criminal or Revenue, been absolutely exhaustive of all possible courts, it is only reasonable to suppose the legislature would have used the term 'any court' as it did in Section 195. The difference in language leads to the supposition that there may be courts as created and defined by the legislature on which it was not intended to confer the powers given in Section 476, Criminal Procedure Code.
13. This supposition appears reasonable when it is remembered n what terms the legislature defined the word " court " for the purposes of the Indian Evidence Act (8- 3) in which enactment the term simply means all persons except arbitrators legally authorised to take evidence. In this sense a Commissioner holding an enquiry under Act XXXVII of J 850, a Settlement Officer under Act XXVII of 1860, a Forest Officer under Section 59, Madras Act V of 1882 and a Registrar under Sections 72 to 75 of the Registration Act arc all courts, though it may be, they are not invested with powers to take action under Section 476, Criminal Procedure Code as Civil, Criminal or Revenue Courts. The proceedings before these officers are judicial in their character and false evidence given before them is punishable under Section 193, 1. P. C, Expls. 2 and 3--as given in a stage of a judicial proceeding, though not given before a Court of Justice.
14. The view that the term court in Section 195 Criminal Procedure Code was intended to include all persons except arbitrators legally authorised to take evidence is strengthened when the principle of that section is considered. The restriction was obviously intended "to prevent prosecutions for acts done or evidence given at the suit of disappointed or hostile parties and it was intended to protect parties against reckless or groundless criminal proceedings. Sanction is required in order to ensure that the prosecution should not in such cases be instituted, unless there was ground sufficient in the opinion of the proper officer to justify such proceeding"--Vide remarks of Kernan and Muthusami Aiyar J. J. in Criminal Revision Case No. 89 of 1888, (Weir, 3rd Ed., 849.) The word 'court' in Section 195 is used strictly with, reference to offences of fabrication of evidence and of documents used in evidence, and therefore it seems not unreasonable to hold that the term is used--like the term "evidence"--in the same sense as in the Indian Evidence Act. The Registrar is a public servant--S. 84, Act III of 1877; and it would seem anomalous if the legislature had made his sanction a condition precedent in case of disobedience of summons [Section 174, I, P, C], or refusal to give evidence or to take oath (Section 178) but yet had required no such, sanction for the far graver offences mentioned in Clause (6) and (c), Section 195--alleged to have been committed in relation to a proceding before him, which proceeding is a stage of a judicial proceeding.
15. It was moreover urged before the Full Bench that the words "as if he were a Civil Court" in Section 75 of the Registration Act signify that a Registrar should be deemed a Civil Court for the purposes of the enquiry contemplated by Sections 78-75. The argument was that the proceedings before the Registrar are judicial, and the enquiry judicial, and the right sought to be enforced was a legal right, registration being necessary to give legal validity to the document.
16. It appears to me there is some difficulty in adopting this view. The words "as if he were a Civil Court" would seem to imply that the Registrar was not one, and the words have reference only to the Procedure to enforce the attendance of witnessss and compel them to be examined. If the Registrar can give a definitive judgment upon a civil right, he would be a judge within the definition of Section 19 of the Indian Penal Code and therefore a "Court of Justice" under Section 20. The registration of a document is merely a consequence of the Registrar finding that the document is genuine. But his finding upon that point is not a definitive decision which in the absence of an appeal can make the matter res judicata between the parties.
17. In the view I have taken however it is not necessary to decide this point. I still adhere to the view taken in In re Venkatachala, I. L. R., 10 M. 154 to which I was a party. Holding that the term 'court' in Section 195 has the same meaning as that assigned to it in Section 3 of the Indian Evidence Act, I would answer the question referred to the Pull Bench in the affirmative.
Shephard, J.
18. It is argued as well with reference to the provisions of the Registration Act as with reference to certain sections of the Criminal Procedure Code that the Registrar acting under Section 72 of the Act is not a court within the meaning of Section 195 of the Code.
19. Considering first the provisions of the Act, I observe that the methods and procedure which a Registrar entertaining an application under Section 72 is enjoined to follow are precisely those which a judge trying a civil suit has to pursue. The application has to be written and verified like a plaint--the Registrar has power to summon and enforce the attendance of witnesses and to compel them to give evidence ' as if he were a Civil Court'--he also has power to adjudicate on the subject of costs. Moreover as is pointed out in the order of reference the subject matter of enquiry is a civil right. The claim which the holder of a registrable instrument has to have that instrument registered may be compared with that of a person entitled to be registered as a Parliamentary voter. In both cases, in order to constitute a certain legal relation, the law requires registration, and registration must in the case of dispute necessarily be preceded by an enquiry. When it is found that the lines upon which that enquiry must proceed are those which are followed in the adjudication of an ordinary civil suit, it seems to me that as the public officer who conducts the inquiry discharges all the functions of a court, he must also be deemed to be a court, unless a clear intention to the contrary is indicated by the legislature.
20. It is said that the language of Section 84 of the Act and also of Section 483 of the Code indicates such intention. These sections have reference to proceedings for contempt for which provision is now made by Sections 480 and 482 of the Code. It is argued that, if the Registrar acting under Section 72 was a court, there was no occasion for the provision in Section 84 that ho should be deemed to be a court within the meaning of the law relating to proceedings for contempt --and again that there was no occasion to confer on the Local Governmont power to constitute a Registrar a court for the same purpose, as has been done by Section 483 of the Code. I confess that I was at first inclined to accede to this argument, but on consideration seeing that in other respects the Registrar is in all essentials a court, I am not disposed to give weight to the circumstance that the legislature doubted whether the Registrar was a court, or thought it expedient to leave it to the Government to say whether he should be ranked as a court, with reference to a particular purpose. I do not think that circumstance can be considered conclusive to show that the legislature in passing the Registration Act did not intend the Registrar to be a court for other purposes than those referred to in Section 84.
21. For this reason I think that the decision of the court mentioned in the order of reference ought to be followed and that the question referred to us should be answered in the affirmative.
22. This case again coining on for final hearing on 8th January 1892 upon perusing the opinions expressed by the Full Bench, the court Wilkinson and Shephard J. J. made the following:
ORDER:--The only parties to these proceedings are the 1st and 2nd defendants. So far as they are concerned the order of the Sessions Judge must be set aside inasmuch as the sanction of the Registrar is required by Section 195, Criminal Procedure Code, for their prosecution. The order of December 3rd, 1890, staying proceedings is discharged.