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HussaIn Khan and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in36Ind.Cas.145
AppellantHussaIn Khan and anr.
RespondentEmperor
Cases ReferredEmperor v. Jiwan
Excerpt:
registration act (xvi of 1908), section 82, 83 - prosecution for offence under section 82--sanction--jurisdiction of court--sanction, grant of, to person who compromised, whether enures for fresh complaint. - .....court has found that at the time of this registration banno bibi was dead. on this finding it is clear that an offence under section 82 of the registration act was committed. section 83 of the registration act is 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 genera], the branch inspector general of sindh, the registrar or the sub-registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed.' the son of the present complainant had got permission under section 83 to prosecute but he compromised the case and dropped the prosecution. this case accordingly must be dealt with on the assumption that.....
Judgment:

Henry Richards, C.J.

1. The accused have been Convicted of an offence under Section 82 of the Registration Act. The Court below has found that the accused brought a certain document purporting to be a Will executed by (amongst other persons) one Musammat Banno Bibi and had the document registered. The Court has found that at the time of this registration Banno Bibi was dead. On this finding it is clear that an offence under Section 82 of the Registration Act was committed. Section 83 of the Registration Act is 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 Genera], the Branch Inspector General of Sindh, the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed.' The son of the present complainant had got permission under Section 83 to prosecute but he compromised the case and dropped the prosecution. This case accordingly must be dealt with on the assumption that no permission under Section 83 was obtained. The applicant contends that the absence of this permission vitiates the conviction and that no Court could take cognizance of an offence under the Registration Act unless permission under Section 83 was first had and obtained. Section 83 seems neither very clear nor grammatical. Bearing in mind, however, that the offence is the creation of the Registration Act and finds no place in the Penal Code, I think that the accused is entitled to the benefit of any ambiguity in the provisions of the Act. It is certainly not an unreasonable contention to be urged on his behalf that a prosecution for an offence under Section 82 should not be commenced without the permission referred to in the section. It is said that the permission only refers to permission by a registering authority. This seems hardly correct, because the different registering authorities are the very persons who are named by the section as the persons who should grant the permission. The applicant cites the case of Emperor v. Jiwan 27 Ind. Cas. 208 : 13 A.L.J. 4 : 16 Cr. L.J. 144 : 37 A. 107. It seems quite clear that Tudball, J., was of opinion that permission was necessary before a prosecution for an offence under Section 82 could be commenced. I allow the application, set aside the conviction and sentence and direct that the accused be set at liberty. The fine, if paid, will be refunded.


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