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Case Number

Criminal Appeal No. 102 of 1934, on behalf of the Local Government, from an order of acquittal passed by Farid-uddin Ahmad Khan, Sessions Judge of Fatehpur

Advocates

The Government Advocate (Mr. Muhammad Ismail), for the Crown.
Messrs Mahbub Alam, S.N Verma and Shankar Lal Tewari; for the accused.

Judges

Sir Shah Muhammad Sulaiman, C.J
Kendall
Bajpai, JJ.

Acts

section 467 read with section 471 of the Indian Penal Code and under section 82 of the Indian Registration Act (Act XVI of 1908).
section 532 of the Code of Criminal Procedure
section 215 of the Code of Criminal Procedure,
section 439 read with section 423 of the Code
SECTION 82 REGISTRATION ACT
SECTION 83 REGISTRATION ACT
sections of the Indian Penal Code.
sub-section (2) of section 532
INDIAN REGISTRATION ACT

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Smart Summary

Full Bench Opinion — Summary (Sections 82 & 83, Indian Registration Act; relevant CrPC provisions)

Factual and Procedural Background

The accused were prosecuted under sections 467 and 471 of the Indian Penal Code and under section 82 of the Indian Registration Act (Act XVI of 1908). The allegation was that a forged document, purporting to bear another person's thumb-impression, was executed and presented for registration; a false person was identified as the executant.

No prior permission was obtained from the Inspector-General of Registration, the Registrar, or the Sub-Registrar before the Magistrate inquired into the complaint. The Magistrate acted on a complaint by a Deputy Collector connected to a mutation proceeding and committed the accused to the Sessions Court. The Sessions Judge accepted the commitment, fixed a trial date and commenced evidence. Before the hearing in Sessions commenced, a letter signed on behalf of the Inspector-General granting permission was received.

After trial, the Sessions Judge concluded that the lack of prior sanction was a fatal defect and acquitted the accused on the ground that permission had not been obtained before the commitment to his court. The Government appealed the order of acquittal. Two questions of law were referred by the Division Bench to the Full Bench for answer: (1) whether permission under section 83 of the Registration Act is necessary before prosecution under section 82, and (2) whether the Inspector-General's belated permission (dated 28 August 1933) validated the trial.

Legal Issues Presented

Is permission of the authorities mentioned in section 83 of the Registration Act necessary before an accused can be prosecuted under section 82 of the Registration Act?
Does the permission accorded by the Inspector-General of Registration on 28 August 1933 validate the Sessions Court trial?

Arguments of the Parties

Government (Appellant) — submissions made by the Government Advocate

Argued that the belated permission cured the defect because permission was obtained before the Sessions trial commenced.
Contended that section 532 of the Code of Criminal Procedure permitted the Sessions Judge to accept the commitment notwithstanding the defect, and that the subsequent permission operated to cure the defect.
Further contended that omission to obtain permission in time was a mere irregularity and that section 537 of the Code would cure such irregularity.

Accused — submissions (as reported in the opinion)

The accused's advocate contended that section 215 of the Code of Criminal Procedure could not apply because the Magistrate who committed the accused to the Sessions Court was not a competent Magistrate. (The Full Bench rejected this contention on the facts: the Magistrate was competent but the commitment was illegal for want of permission.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Emperor v. Jiwan	Early authority supporting requirement of prior permission under section 83 (view expressed by Tudball, J.).	Referenced as prior judicial support for the proposition that previous permission is necessary; relied on in the chain of authorities favouring mandatory sanction.
Emperor v. Husain Khan	Held that prosecution under section 82 should not be commenced without the permission referred to in section 83; conviction/sentence set aside where permission absent.	Singled out (Richards, C.J.) for carefully examining section 83 and adopting the view that prior permission is required; the Full Bench accords weight to this reasoning.
Mohan Lal v. King-Emperor	Listed among the decisions of this Court consistently supporting the requirement of prior permission.	Included in the set of Allahabad decisions relied upon by the Full Bench to support the interpretation that section 83 requires prior permission.
Gopinath v. Kuldip Singh (Calcutta Full Bench)	Held that section 83 was not obligatory and that prior permission by the officers named was not necessary to institute proceedings.	Not followed by Richards, C.J.; cited by parties as representing the contrary (Calcutta/Madras) view which the Full Bench considered and contrasted with the Allahabad/Rangoon line.
Queen-Empress v. Vythilinga (Madras)	Madras High Court followed the Calcutta Full Bench view that prior permission under section 83 was not necessary.	Cited as representing the contrary position adopted by some High Courts; the Full Bench noted it but preferred the view requiring prior permission.
Re Nadathi (Madras Division Bench)	Division Bench considered section 83 and concluded that permission was not absolutely necessary (followed Calcutta view).	Cited as part of the Madras line of authorities; the Full Bench discussed the reasoning and recorded that both Madras Judges found difficulty but preferred the Calcutta view, which the Full Bench ultimately rejected.
In re Palani Goundan (Madras)	Followed Re Nadathi / the Calcutta Full Bench view that prior permission was not necessary.	Noted as part of the group of authorities taking the permissive/directory view of section 83; Full Bench contrasted and declined to adopt that approach.
Gobindia v. King-Emperor (Patna, single Judge)	Adopted the Calcutta/Madras view that prior permission under section 83 was not necessary.	Cited as another authority taking the permissive view; considered but not followed by the Full Bench.
Indrani Bahu v. Mst. Rani Badi Dulaiya (Nagpur Judicial Commissioner)	Adopted the permissive view that prior permission was not essential.	Included among decisions that did not require prior sanction; the Full Bench treated it as part of the contrary line it declined to follow.
Nga Pan Gaing v. King-Emperor (Rangoon Division Bench)	Re-examined the question at length and sided with the Allahabad view that previous permission under section 83 is required; endorsed almost every aspect examined by the Full Bench.	The Full Bench agreed with the detailed reasons given by the Rangoon Division Bench and adopted that reasoning (with one caveat noted about the word "may").
Emperor v. Madhav Laxman (Bombay High Court)	Held that section 532 of the Code of Criminal Procedure does not apply where the only defect is absence of previous sanction/permission.	Relied upon by the Full Bench to support its conclusion that section 532 is inapplicable to cases where the commitment is illegal solely for want of previous sanction.

Court's Reasoning and Analysis

The Full Bench undertook a textual and purposive examination of section 83 of the Indian Registration Act in light of sections 81 and 82 and the surrounding statutory scheme.

Key steps in the Court's reasoning:

The Court observed that sections 81 and 82 create offences that are distinct from the Indian Penal Code and, in some instances, prescribe higher maxima of punishment than comparable IPC provisions. Because these are statutory offences created by the Registration Act, the procedure laid down in that Act must be followed if one seeks to prosecute under those specific provisions.
The Court noted textual difficulty in section 83—particularly the use of the word "may"—and reviewed authorities that took opposite positions (some construing the provision as directory/permissive, others as mandatory). The Bench emphasized the practical consequences of a permissive construction: private persons could prosecute registering officers even after registration authorities have inquired and refused permission, potentially undermining departmental supervision and discipline.
Having reviewed prior rulings, the Court found that the better-reasoned line (including decisions from Allahabad and the Rangoon Division Bench) supported the conclusion that prior permission of the Inspector-General, Registrar or Sub-Registrar is required before prosecution under section 82 can be commenced. The Bench specifically agreed with the reasons given by the Rangoon Division Bench, save for one point about whether "may" should be read as "must".
Turning to the second question, the Court held that because prior sanction was essential, the prosecution without such sanction was illegal. The Government Advocate's submission that a belated permission cured the defect was considered against provisions of the Code of Criminal Procedure.
The Court analyzed sections 532 and 537 of the Code. It concluded that section 537 (which allows the High Court to refuse to set aside orders for error/irregularity where no failure of justice has occurred) was not applicable: the acquittal was in favour of the accused, and neither party sought to have that order set aside on the ground of error or irregularity. The Government Advocate's argument was in truth that the Sessions Judge erred in law and that the acquittal was illegal.
Regarding section 532, the Court concluded that it does not apply where the only defect is absence of the previous sanction required by statute. The Bench supported this conclusion by reference to the Bombay High Court decision in Emperor v. Madhav Laxman and by analysis of section 532's purpose (which addresses incompetent magistrates committing accused persons) and its subsection (2) (which contemplates quashing commitments where the committing magistrate was incompetent). Here the committing Magistrate was competent, but the prosecution itself was illegal for want of sanction; hence section 532 was inapplicable.
The Court held that when a Sessions Judge is satisfied that a commitment was illegal for want of proper permission and that he has no power to try the case, he should not proceed to try it; instead the Sessions Judge should report the matter to the High Court for appropriate action. The Sessions Judge erred in acquitting the accused where he admitted he had no jurisdiction to try them.
Finally, the Bench explained the High Court's remedial powers under section 215 of the Code (to quash illegal commitments) and section 439 read with section 423 (to order fresh inquiry or other appropriate steps), noting that where a commitment is illegal on a question of law the High Court has ample power to quash it and either drop proceedings or order a fresh inquiry.

Holding and Implications

The Full Bench returned the following answers to the referred questions:

Permission of the authorities mentioned in section 83 of the Registration Act is necessary before an accused can be prosecuted under section 82 of the Registration Act.
The permission accorded by the Inspector-General of Registration on 28 August 1933 did not validate the Sessions trial because the commitment to the Sessions Court was itself illegal for want of the prior sanction required by section 83.

Implications and immediate consequences (as stated in the opinion):

The prosecution under section 82 without prior sanction was illegal and contrary to the Registration Act; a belated sanction, obtained after an illegal commitment, does not validate a Sessions trial that proceeded without jurisdiction.
The Sessions Judge erred in acquitting the accused when he had concluded that he had no jurisdiction to try them; instead, the appropriate course where a commitment is illegal for want of prior permission is for the Sessions Judge to report to the High Court so that the High Court may quash the commitment and either drop the proceedings or order a fresh inquiry (for example under section 439 read with section 423 of the Code), or act under section 215 to quash the commitment on a question of law.
No broader new doctrinal rule beyond the answers stated was articulated in the opinion; the Court expressly aligned itself with earlier well-considered judgments reaching the conclusion that prior permission is necessary and explained the procedural consequences when that requirement is not satisfied.

This summary is based exclusively on the contents of the provided opinion and does not add or infer facts beyond that text.

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Emperor v. Muhammad Mehdi And Others

Sulaiman, C.J, Kendall and Bajpai, JJ.:— Two questions have been referred to the Full Bench by the Division Bench before which the appeal came up for hearing. These are:

(1) Is permission of the authorities mentioned in section 83 of the Registration Act necessary before an accused can be prosecuted under section 82 of the Registration Act?

(2) Does the permission accorded by the Inspector-General of Registration on the 28th of August, 1933, validate the trial?

It appears that the accused persons were prosecuted under section 467 read with section 471 of the Indian Penal Code and under section 82 of the Indian Registration Act (Act XVI of 1908). The case against them was that a forged document purporting to bear the thumb-impression of another person was executed and then presented for registration before the Sub-Registrar and a false person was identified as the executant. No permission of either the Inspector-General or the Registrar or the Sub-Registrar was obtained before the inquiry was made by the Magistrate. He took action on the complaint made by a Deputy Collector who was hearing a mutation case following upon the registration of the disputed document. The learned Magistrate committed the accused to the sessions court. The order of reference assumes that no objection was taken on behalf of the accused before the Magistrate as to the absence of permission. The Sessions Judge appears to have accepted the commitment, and he fixed a date for the trial and then took evidence. Before the hearing commenced a letter was received, which had been signed on behalf of the Inspector-General of Registration and granted the permission. The learned Sessions Judge after concluding the trial came to the conclusion that the want of sanction was a fatal defect to the prosecution. He then acquitted the accused on the main ground that no such sanction had been obtained before the commitment to his court.

The Government have appealed from the order of acquittal, but this Full Bench is concerned with the two questions of law which have been referred to it for answer.

Part XIV of the Indian Registration Act provides penalties for certain offences. Under section 81 there is a penalty for incorrectly endorsing, copying, translating or registering a document with intent to injure some person. Then under section 82 whoever intentionally makes a false statement, whether on oath or not, or intentionally delivers to a registering officer a false copy or translation of a document, etc., or falsely personates another and in such assumed character presents any document, or makes any admission, or abets anything made punishable by the Act, is punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

Sub-section (1) of section 83 reads as follows: 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 Sub-Registrar in whose territories, district or sub-district, as the case may be, the offence has been committed. Sub-section (2) provides as follows: 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.

The language of the section is admittedly very unhappy and has been the source of considerable divergence of opinion. The first difficulty is caused by the use of the word “may”, and it has been suggested in some cases that the section is not mandatory but only directory, and that a private person can start a prosecution under section 83 of the Registration Act even without the permission mentioned therein. The argument is that the object of insisting on permission is for regulating the conduct of the registration authorities, and the section does not prevent private individuals from prosecuting accused persons under the section. On the other hand, it has been suggested that the word “may” in the section stands for the word “must” and the section is mandatory. There is difficulty in this view, because it could not have been intended that the Inspector-General of Registration or the Registrar or the Sub-Registrar is bound to commence a prosecution. Of course, if the intention of the legislature had been that there is an absolute prohibition against the commencement of any prosecution without previous permission, the more appropriate phraseology to use would have been “No prosecution shall be commenced without the permission, etc.” The language unfortunately is not so clear.

But it is obvious that sections 81 and 82 create new offences which do not necessarily come within the scope of the provisions of the Indian Penal Code. It is also clear that in some cases a higher maximum of punishment is prescribed than is the case under the corresponding sections of the Indian Penal Code. If an act amounts to an offence under any other law, it is open to a private individual to file a complaint and have the accused person convicted; but if he wishes to take advantage of the provisions of sections 81 and 82 of the Act, it is necessary that he should follow the procedure laid down in the Act. The necessary result of taking a contrary view would be that private persons would be entitled to file complaints against registering officers, although the higher registration authorities have inquired into the matter and are satisfied that no offence has been committed and refuse to give permission for their prosecution. The offences contemplated in these sections are principally offences committed against the registering authorities, though of course, indirectly, private persons may also be injured thereby.

So far as the rulings in this Court are concerned they are all one way. We may refer to the case of Emperor v. Jiwan (1), Emperor v. Husain Khan (2), Emperor v. Husain Khan (3), Mohan Lal v. King-Emperor (4).

In Emperor v. Husain Khan Richards, C.J, pointed out that section 83 was neither very clear nor grammatical, but that it should be borne in mind that the offence was the creation of the Registration Act and finds no place in the Penal Code, and that therefore an accused person is entitled to the benefit of any ambiguity in the provisions of the Act. The learned Chief Justice considered that it was certainly not unreasonable to hold that a prosecution for an offence under section 82 should not be commenced without the permission referred to in the section. He rejected the contention that the permission mentioned therein referred to permission by a registering authority only, for the reason that the different registering authorities are the very persons who are named by the section as the persons who should grant the permission. He agreed with the view previously expressed by Tudball, J., in Emperor v. Jiwan and held that the conviction and sentence under section 83, in the absence of the previous permission, must be set aside. At the Bar the Full Bench case of the Calcutta High Court, Gopinath v. Kuldip Singh , was cited before him, but he did not follow it. On the other hand the Calcutta High Court, in the matter of Gopinath v. Kuldip Singh, overruling the previous decision of a Bench of that Court, expressed the opinion that under section 83 it is not necessary that some one of the officers who are mentioned in that section must have given previous permission to institute proceedings. They considered that the provisions of section 83 were not obligatory, but they rather seemed to be intended for the purpose of enabling officers of the registration department, when they saw fit, to prosecute any person under the Act. Beyond this they gave no further reason. It may be pointed out in this connection that section 83 does not merely enable officers of the registration department to institute any prosecution, but it enables private citizens to do so with the previous permission of such officers. If a mere departmental discipline were intended it could have been provided by mere rules.

The Madras High Court in Queen-Empress v. Vythilinga followed the view of the Full Bench of the Calcutta High Court without giving any additional reason. But the matter was considered very carefully by a Division Bench of the Madras High Court in Re Nadathi and both the Judges came to the conclusion that permission was not absolutely necessary. Ayling, J., pointed out that the wording of section 83 was far from clear, but, on a consideration of the section, he felt inclined to take the same view as the Full Bench of the Calcutta High Court had taken. Napier, J., also said that the question was one on which it was possible to arrive at a different conclusion, and admitted that he had great difficulty in arriving at his conclusion. This case was followed by the Madras High Court in In re Palani Goundan , and by a single Judge of the Patna High Court in Gobindia v. King-Emperor , and also by the Nagpur Judicial Commissioner's court in Indrani Bahu v. Mst. Rani Badi Dulaiya . The question has since been re-examined at considerable length by a Division Bench of the Rangoon High Court in Nga Pan Gaing v. King-Emperor . Both the learned Judges have examined almost every aspect of the question, and have come to the conclusion that the view expressed previously in the Allahabad cases was correct, and they have adopted that view in preference to the view expressed by the Calcutta and Madras courts. With perhaps one exception, namely that the word “may” has been used in the section in the sense of “must be”, we agree with the numerous reasons given by the learned Judges in respect of the view they have taken.

Apart from the difficulty caused by allowing private persons to drag registering officers into criminal courts in spite of the refusal of the registration authorities to grant permission, there is the fact that section 82 would make mere false statements made before a Sub-Registrar, though not on oath, punishable with imprisonment for seven years, whereas a statement made on oath may be punishable under section 193 only with three years. It is also to be noted that the provisions in the earlier Act of 1866 were far more stringent, as they provided for a prosecution to be instituted by the registration authorities only, provided that a prosecution for an offence under the Act might be instituted, in the case of a Sub-Registrar, with the sanction of the Registrar. It is also clear that if it had been the intention of the legislature that private citizens should have the right to start a prosecution, there would be no point in providing that the prosecution might be commenced by or with the permission of the registering authority. This appears to be the latest well considered judgment agreeing with the views previously expressed by three learned Judges of this Court. We see absolutely no reason to differ from that view, because in our opinion that is the only reasonable interpretation that can be put on section 83 of the Act.

The second question that has been referred to us is whether the belated permission by the Inspector-General of registration validated the trial.

As, in our opinion, it was absolutely essential to obtain the previous sanction of the registration authorities, the prosecution of the accused under section 83 of the Act was certainly illegal and contrary to the provisions of that section. The learned Government Advocate has urged before us that the defect was cured in this case because permission was obtained before the trial commenced in the sessions court. His contention is that under section 532 of the Code of Criminal Procedure it was open to the Sessions Judge to accept the commitment in spite of the defect, and that defect must be deemed to have been cured because subsequently the permission was obtained. He further contends that the omission to obtain this permission in time was a mere irregularity and is cured by section 537 of the Code.

In our opinion section 537 can have no application to this case. So far as the High Court is concerned, section 537 can be applied against an applicant who wants to have an order or sentence passed by a sessions court set aside, and the High Court would refuse to set it aside on account of any error, omission or irregularity, etc. if no failure of justice has been occasioned. In this case the order of acquittal is in favour of the accused persons, and they do not want to have it set aside on any ground of error, omission or irregularity. The learned Government Advocate also does not want to have that order set aside on the ground of any such error, omission or irregularity. His contention really is that the learned Sessions Judge has erred in law in holding that the prosecution was illegal. He, however, further contends that the order of acquittal is illegal.

As far as section 532 is concerned, it appears to us that section does not apply to a case where the prosecution is illegal on the ground of want of such permission. In the first place, section 537 used to have a subsequent clause (b) dealing with the want of, or any irregularity in, any sanction required by section 195, etc. This has been deleted. The deleted clause suggests that want of sanction was not contemplated in section 532. Section 532 deals with cases where a Magistrate, purporting to exercise powers of commitment which are not so conferred upon him, commits an accused person for trial before the sessions court. In the present case there was no question as to the competence of the Magistrate. He was a Magistrate of the first class who was perfectly competent to inquire into a criminal case and to commit the case to the sessions court. The main defect was that the prosecution was illegal for want of sanction. We agree with the view expressed by the Bombay High Court in Emperor v. Madhav Laxman that section 532 does not apply to a case where there is no question that the Magistrate who committed the accused for trial to the court of session had the power to do so, but the only defect is that there was no previous sanction. In such a case the Sessions Judge had no power to quash the commitment and direct a fresh inquiry, but the proper procedure was to make a reference to the High Court.

That this is necessarily the correct interpretation is obvious from sub-section (2) of section 532 which provides that if the sessions court considers that the accused was injured or if such objection was so made it shall quash the commitment and direct fresh inquiry by a competent Magistrate. Where the Magistrate who has committed an accused is not competent to commit an accused, the Sessions Judge may either accept the commitment if there is no injury to the accused and if no objection had been taken before the Magistrate, or may quash the commitment and then direct that another Magistrate who is competent to commit the accused should inquire into the case. Obviously, where there is a defect of want of previous permission there can be no other competent Magistrate who can inquire into the matter. Section 532 therefore would not be applicable to such a case.

The learned Sessions Judge, therefore, should not have gone on with the trial when he was satisfied that the Magistrate had acted illegally in committing the accused to his court in the absence of proper permission, and he felt that he himself had no power to try the case and convict the accused; he should have reported the case to the High Court for the quashing of the order of commitment. The learned Sessions Judge has erred in acquitting the accused when admittedly he had no jurisdiction to try them.

A Magistrate can take cognizance of an offence on a complaint filed before him; but a Sessions Judge can take cognizance of a case only when a case has been properly committed to his court. If the commitment is wholly illegal and is not merely irregular, so that the defect can not be cured by him, the Sessions Judge has no option but to refer the case to the High Court. The learned advocate for the accused has contended before us that section 215 cannot apply to this case because the Magistrate who committed the accused to the sessions court was not a competent Magistrate. We are unable to accept this contention. There was no question of incompetence of the Magistrate in this case. He was perfectly competent under section 206 to commit the accused to the sessions court within the meaning of section 215 of the Code of Criminal Procedure, but his commitment was illegal as it was contrary to law. The High Court therefore has ample powers under the section to quash the commitment on a question of law. When a matter is brought before the High Court and it appears that the order of commitment was illegal, the High Court will, of course, quash the commitment, and may either drop the proceedings altogether or act under section 439 read with section 423 of the Code and order a fresh inquiry.

Our answers to the two questions referred to us are as follows:

1. Permission of the authorities mentioned in section 83 of the Registration Act is necessary before an accused can be prosecuted under section 82 of the Registration Act.

2. The permission accorded by the Inspector-General of registration on the 28th of August, 1933, did not validate the sessions trial because the commitment to the sessions court was itself illegal.

Emperor v. Muhammad Mehdi And Others

Full Bench Opinion — Summary (Sections 82 & 83, Indian Registration Act; relevant CrPC provisions)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Government (Appellant) — submissions made by the Government Advocate

Accused — submissions (as reported in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Emperor v. Muhammad Mehdi And Others

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