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PETITIONER: DHARMADEO RAI

       Vs.

RESPONDENT: RAMNAGINA RAI

DATE OF JUDGMENT18/01/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN SHELAT, J.M.

CITATION:  1972 AIR  928            1972 SCR  (3) 111  1972 SCC  (1) 460

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

HEADNOTE: 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 acquitted by  the  trial court.  In an appeal filed by the complainant the High Court convicted  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 required by s. 83  of the Act.  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  subdistrict 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 was that the complaint was incompetent  as it was filed by a person  without  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  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  an offence comes to the knowledge 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.   The section can possibly have no  application  to cases in which the offences are committed under the Act, but the offences do not come to the knowledge of the Registering Officer in his official capacity. [113 H] The section is not prohibitory in that it does not  preclude a  private person from commencing a prosecution.  Even in  a case where the commission of offence comes to the  knowledge of  the  Registering Officer in his official  capacity,  the

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section does not prohibit a private person from commencing a prosecution as the section is clearly permissive in language and intent. [114B] 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 more seriously injured by  the action  of  an offender who not only forges a  document  but endeavours  to give it a higher efficacy by registering  it, there is no reason why the private person should be deprived of the liberty to prosecute the offender.  There is also  no reason why a registering officer guilty of an offence  under s. 81 of the Act should get immunity from prosecution. by  a private  individual  injured thereby.  In s. 195(1)  of  the Criminal 112 Procedure  Code, s. 70(1) of the Indian Stamp Act and s.  29 of  the  Indian  Arms Act, 1878  the  language  employed  is prohibitory  in character.  Section 83(1) of the Act is  not prohibitory either in terms or in intention [116 A-G] The view taken by the Allahabad and Rangoon High Courts that the word ’may’ in s. 83(1) should be read as ’must’ was  not correct. [114 H-115 D] Gopinath  v. Kuldip Singh and Anr., I.L.R. Calcutta  Series, Vol.  XI 566, Re Piranu Nadathi and Anr. and Emperor v. Yesa Nath Didiwagh and Ors., A.I.R. 1937 Bombay 191, approved. Nge Pan Gaing and Ors. v. King Emperor, A.I.R. 1927  Rangoon 61  and  Emperor  v.  Mohd.  Mehdi  and  Ors.,  A.I.R.  1934 Allahabad, 963. disapproved. Gonga  Dibya and Anr. v. Emperor, A.I.R. 1943 Patna 227  and Habib  Shah v. Mehda Shah, A.I.R. 1960 J & K.  18,  referred to. K.   M.   Kanavi  v. State of Mysore, [1968] 3  S.C.R.  821, held inapplicable.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 33  of 1969. Appeal  by Special Leave from the Judgment 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 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- 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 that Sheo  Deo  Prasad  Rai, posing as Nageshwar, son of Bujhawan. executed the Zerpeshgi

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deed and that Sheo Deo Prasad 113 Rai   falsely  personated  as  Nageshwar  before  the   Sub- Registrar, that 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  Bishundeo Rai  and  Sheo  Deo Prasad  Rai of offences under section 467 and section 120  B of  the  Indian Penal Code.  Bishundeo and Sheo  Deo  Prasad were   also   convicted  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 complainant against the acquittal of the appellant,  namely, Criminal Appeal No. 58/1966.  In that appeal, the High Court came to the conclusion that the, Sessions Judge was wrong in acquitting the appellant as there was clear evidence that it was be 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 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 person 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  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  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- exercising               powers not 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  an  offence comes  to  the knowledge 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.   The section can possibly have no  application  to cases in which offences are committed under the 114 Act,  but the offences do not come to the knowledge  of  the Registering  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 in a case  where the  commission of an offence comes to the knowledge of  the Registering  Officer in his official capacity,  the  section does  not  prohibit  a  private  person  from  commencing  a prosecution  as  the section is clearly  permissive  in  its

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language  and  intent.  In other words, the  section  is  an enabling  one.  It enables the persons mentioned therein  to commence a prosecution in cases 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  others(1),  the  question whether   the  section  prohibits  a  private  person   from commencing 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 has  been followed  by the Madras High Court in Re Piranu Nadathi  and others ( 2 ) . There also the Court has taken the view  that the  section is an enabling one in that it  only  authorises the authorities mentioned therein to commence a  prosecution and  does  not prohibit a private person from  commencing  a prosecution  without  the  permission  as  required  by  the section.   In Emperor v. Yesa Nath 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 knowledge, and that even  in cases  where  he  has knowledge of  the  commission  of  the offence  in  his  official capacity,  the  section  is  only enabling  and  does  not  preclude  a  private  person  from launching a prosecution for the offence.  The same view  was taken by a Bench of the Patna High Court in Ganga Dibya  and another  v. Emperor(4) and also by the High Court  of  Jammu and Kashmir in Habib Shah v. Mehda Shah(5)  In Nge Pan Gaing and  other v. King Emperor(6), the Rangoon High  Court  held that the word ’may’ (1)  I.L.R. Calcutta Series, Vol.  XI, 566. (3)  A.I.R. 1937 Bombay 191. (5)  A.I.R. 1960 J & K 18. (2)  I.L.R. 40 Madras 880. (4)  A.I.R. 1943 Patna 227. (6)  A.I.R. 1927 Rangoon 61. 115 in  section  83 of the Act should be read as  equivalent  to ’must be’and that a prosecution for an offence under the Act coming  to  the knowledge 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  it  the  Allahabad High Court, in  Emperor  v.  Mohd. Mehdi and others(1), took the view that section 83 lays down a special procedure for prosecution of "he 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, offences committed against registering  authority, that only indirectly 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

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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 imprisonment 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 to  collide  with  the person guilty of  an.  offence  under section  82  of  the  Act’, or if  they  fail  to  launch  a prosecution  against the registering officer for an  offence under section 81 of the Act, there, would 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 the section. (1)  A.I.R. 1934 Allahabad, 963. 116 One  would have expected a more apt phraseology if the  pur- 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 endeavors to give it a higher efficacy by registering it, we can  perceive  no reason why the private  person  should  be denied  the liberty to prosecute the offender.  We also  see no  reason  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(1)  and  contended that  section  83 of the Act is  prohibitory  in  character. There is no merit in 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               "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

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             an,,,  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 all these sections, the language employed is  prohibitory in  character.  Section 83(1) of the Act is 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 (2 ) ,  Re Piranu  Nodathi  and  others(3), and Emperor  v.  Yesa  Nana Didwagh and others(4) lay down the correct law. (1)  [1968] 3 S.C.R. 821. (3)  I.L.R. 40 Madras 880. (2)  I.L.R Calcutta, Vol.  XI 566. (4)  A.I.R. 1937 Bom. 191.                             117 We cannot appreciate or approve the reasoning in Emperor  v. Mohd.   Mahdi and others(1) and Nga Pan Gaing and others  v. King Emperor(2) 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. (1)  A.I.R. 1934 All. 963. (2)  A.I.R. 1927 Rangoon 61. 118