1. Five persons, namely Mohd Akbar Alai, Sattar Alai. Reshi Para, Naseem Akhtar and Ghulam Ahmad Reshi were tried in the court of Judicial Magistrate, (Munsiff), Badgam, for an offence under Section 82 of the Registration Act, the first among them also for an offence under Section 420, R. P. C. On consideration of the evidence, the learned Magistrate found that no offence was made out against Gh. Ahmed Reshi and acquitted him. He also found that the offence under Section 420, R. P. C. was not made out against Akbar Alai and acquitted him of that charge. He, however, found that the offence under Section 82 Registration Act was made out against Akbar Alai, Sattar Alai, Reshi Para and Naseem Akhtar He convicted them of the said offence and sentenced them to rigorous imprisonment for six months and a fine of Rs. 100/- each, in default to simple imprisonment for further fifteen days. On appeal, the learned Sessions Judge, Srinagar, found that the offence under Section 82, Registration Act was made out against Satar Alai, Reshi Para and Nasim Akhtar but not so against Moh'd Akbar Alai. Accordingly he acquitted Moh'd Akbar Alai and while maintaining the conviction of the other three accused persons reduced their period of sentence to that already undergone by them, which was eleven days. The complainant, Mst. Jana, filed a revision in this Court challenging the propriety of acquittal of Moh'd Akbar Alai and the reduction of sentence of the other three accused persons. It is Revision petition No. 1 of 1970. At the hearing of this petition, Justice J. N. Bhat as he then was, by his order dated October 15, 1971, directed issue of a rule to all the four accused why, in the event of their conviction being upheld, the sentence imposed on them be not enhanced. The accused opposed the rule. In view of the rule the case came up for hearing before a Division Bench of this Court consisting of myself and my learned brother, Mian Jalal-ud-Din J. On the finding that the learned Sessions Judge, Srinagar had not considered the evidence relied on by the prosecution against Moh'd Akbar Alai, we set aside his acquittal and directed the re-hearing of the appeal by the Additional Sessions Judge, Srinagar in order to avoid embarrassment to the then Sessions Judge who had already expressed his opinion in the matter. We also directed that the rule of enhancement will lie over till the result of the appeal was known. On rehearing the appeal, the learned Additional Sessions Judge, by his judgment dated 9-12-1972. upheld the conviction and sentence imposed on Mohd Akbar Alai by the trial Magistrate and dismissed his appeal. Aggrieved by this decision, Moh'd Akbar Alai has come up in revision to this Court which is revision petition No. 34 of 1972. This judgment will govern the disposal of both the revisions as also the Rule of enhancement issued by Mr. Justice J. N. Bhat.
2. The case of the prosecution in the trial court was that on 22-4-1965 Akbar Alai got a sale deed executed by Mst. Jana P.W. in favour of his father, Sattar Alai, without, however, paying the stipulated consideration of Rs. 5,000/- which, he promised to pay her at Srinagar through his father. But nothing was actually paid to Mst. Jana in spite of her repeated request. On the other hand Akbar Alai, Sattar Alai joined hands with Reshi Para and Ahmed Reshi and procured the services of Naseem Akhtar who falsely personated herself as Mst. Jana before the Sub-Registrar Badgam on 27-5-1965 when the deed was presented for registration. The case of the prosecution further was that Mst. Jana had already got wind of the designed action and so, she too rushed to Badgam on the relevant day where the truth of the matter became known to her. She immediately filed an application before the Sub-Registrar, and also lodged a report Exp. 2 at police Station Badgam. The Sub-Registrar issued a rule to the aforesaid persons and withheld the certificate of registration. They even appeared in response to the rule, confessed the guilt and pleaded for mercy. But. before, further action could be taken by the Sub-Registrar in the matter, the relevant file was claimed by the fire which gutted the court building. The police, however, submitted a charge-sheet against all the aforesaid persons under various offences as a result of which they were tried in the court of Judicial Magistrate first class, Badgam with the results mentioned above. The defence of the accused at the trial was of denial simpliciter with one of them namely, Akbar Alai, also pleading alibi
3. At this stage it may be mentioned that, in the course of the trial while the prosecution evidence was on, Mst. Naseem Akhtar filed an application along with an affidavit admitting that she had falsely personated for Mst. Jana Bibi at the time of the Registration, adding, that she had done so at the instance of Amma Reshi and Akbar Alai. The learned Magistrate recorded her statement in which she affirmed the contents of the affidavit and added that it was voluntary and not a product of any inducement or coercion. In her subsequent statement under Section 342, Criminal Procedure Code she, however, stated that the affidavit was got scribed by her father and that she had produced it in the court without knowing what it contained.
4. As stated earlier, the trial Court acquitted Gh. Ahmed Reshi of the only charge under Section 82 of the Registration Act against him The court also acquitted Akbar Alai of the charge under Section 420, R. P. C. These acquittals have not been challenged by the State. The only question before us is whether the offence under Section 82 of the Registration Act is made out against Akbar Alai. Sattar Alai, Reshi Para and Naseem Akhtar (hereinafter called 'the accused'). In dealing with this question we cannot rest content with the findings of the courts below because of the rule for enhancement in response to which the accused pleaded that their conviction was not justifiable. Accordingly it will be necessary to examine the evidence produced by the parties.
(After considering the evidence in paras 5 to 11 his Lordship proceeded.)
12. On the oral and documentary evidence produced by the prosecution it is amply clear that the sale deed Ext. P-1 was presented for registration on 27-5-1965 at 10 A. M.; that, in the course of registration, Mst. Naseem Akhtar posed herself to be the real executant, Mst. Jana Bibi; that Sattar Alai, Akbar Alai and Reshi Para expressly supported her in her false assertion inducing the Sub-Registrar to believe that she was the real executant, Mst. Jana Bibi; that soon afterwards, on the same day, Mst. Jana Bibi filed an application complaining about the matter to the Sub-Registrar; and. that on this application, the Sub-Registrar directed issue of a rule in response to which the accused confessed their guilt and pleaded for mercy but he could not take any action against them because the file got destroyed in the fire which subsequently gutted the court building. It is true that the P.Ws. Abdul Khaliq But and Ali Malik clerk and orderly of Mr. Parrey, do not agree with Mr. Parrey in all details, particularly, about the presence of Akbar Alai at the time of registration. But they do not also quite disagree with him. If Abdul Khaliq says that Naseem Akhtar wore a Burqa of Punjabi style and not of Kashmiri style, as stated by Mr. Parrey, that does not exclude the presence of Naseem Akhtar at the time of registration when he categorically states that she was present and personated for Mst. Jana Bibi. Similarly if he expresses his inability to say if Akbar Alai was present at the time of registration that does not exclude Akbar Alai from the scene particularly when he himself states that Akbar Alai and Sattar Alai delivered the deed to him for preliminary examination. Likewise if Ali Malik has stated that he does not remember whether Akbar Alai was present at the time of registration, that does not necessarily imply that he was not present. Accordingly the discrepancies are more apparent than real. They are attributable to the human failings of memory and observation, particularly so, in the present case considering the fact that the statements of Ali Malik and Abdul Khaliq were recorded almost four years after the occurrence. In any case there is no reason to disbelieve Mr. Parrey whose evidence is cogent, convincing and unimpeachable and is supported by other evidence, in particular by the expert's report Exp. 15 and the affidavit produced and affirmed in the course of trial by Naseem Akhtar implicating herself as also Akbar Alai. It is true that, at the subsequent stage of the trial, Mst. Naseema retracted from the confession made by her in the affidavit pleading that it was her father who got it scribed and she only produced it without knowing what the contents were. But the confession stands amply proved from her contemporaneous statement before the learned trial Magistrate in the course of which the affidavit was read over and explained to her and she accepted it to be correct and even stated that she had executed it voluntarily without any inducement or coercion from any extraneous agency. It was open to Mst. Naseema as also to Akbar Alai, who were affected by the affidavit, to prove that the affidavit and the subsequent statement made by Mst. Naseema in the court affirming it were the result of fraud, coercion or undue influence, but they have produced no evidence to that effect, though the affidavit was produced and the accompanying statement made at an early stage of the proceedings and they had ample opportunity to produce evidence. In the circumstances the confession is conclusive against Mst. Naseema and can also be taken into consideration against Akbar Alai, though only as a piece of corroborative evidence. Therefore, on the prosecution evidence, the participation of Akbar Alai in the crime is proved no less than that of Sattar Alai, Reshi Para and Mst. Naseema.
13. The evidence led by Akbar Alai in defence, even if taken on its face value, does not shake the conclusion arrived at above, much less prove his innocence. Taking a view favourable to him, let me assume that he reached village Mallapora at 12 noon, though one of the witnesses has put it as past noon. Let me also assume that the distance between Badgam and Mallapora is 10 to 15 miles and that there is no bus service connecting the two places and also that it takes three or four hours, as stated by Moh'd Mir, or even 5 or 6 hours, as stated by Rehman Dar, to cover that distance on foot. But then where is the evidence that Akbar Alai covered the distance on foot and not otherwise as, for instance, on a horseback. Therefore, on this evidence, it cannot be reasonably concluded that Akbar Alai was not present at Bud-gam at 10 a.m. when the deed was presented for registration.
14. In what I have stated above, I have assumed that the confession made by an accused person in the course of trial implicating himself as also another accused is admissible against the co-accused under Section 30 of the Evidence Act. The learned Additional Sessions Judge has however taken a contrary view on the ground that Section 30 applies only to the statements made before and proved at the trial In this he was influenced by the fact that the word 'proved' occurring in Section 30 is not applicable to a statement made at the trial. In my opinion the language of Section 30 does not justify the distinction between a confession made before the trial and that made in the course of the trial. All that the section requires is that the confession, whenever made, must be proved before it is taken into consideration against the co-accused. The word 'proved' occurring in the section conveys a particular meaning given to it in Section 3 of the Evidence Act. That section inter alia provides that a fact is said to be proved if after considering the matter before it, the court believes it to exist. If the statement is made before the court, it is clearly a matter before it which the court must believe to exist. Accordingly it must be held that a confession made by an accused person in the course of trial implicating himself and another accused is admissible in evidence against the co-accused under Section 30 of the Evidence Act. The value to be attached to such evidence will depend on the facts and circumstances of each case, more particularly, on the fact whether such co-accused had opportunity to rebut the same.
15. In the view expressed above I am supported by a decision of the Lahore High Court in Dial Singh v. Emperor AIR 1936 Lah 337 : 37 Cri LJ 508. In that case their Lordships considered the rival opinions of the various High Courts on the question. They agreed with the view taken by the Bombay and Nagpur High Courts in AIR 1930 Bom 354 : 31 Cri LJ 1137 and AIR 1931 Nag 169 : 32 Cri LJ 1222 that Section 30 of the Evidence Act covers the confession made in the course of trial and expressed their dissent from the view to the contrary expressed by Allahabad and Madras High Courts in AIR 1923 All 322 : 25 Cri LJ 305 and AIR 1931 Mad 820 : 32 Cri LJ 1099 observing:
We have to point out with great respect that, in arriving at this conclusion, the learned Judge of the Allahabad High Court and the learned Judges of the Madras High Court overlooked the definition of 'proved' in Section 3, Evidence Act. That definition is:
A fact is said to be proved when, after considering the matter before, it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.If a confession is made before the Court itself it 'is a matter before it' and the Court must believe it to exist. It must, therefore, be said to be 'proved'. A fact can be proved not only by 'evidence' as denned in Section 3, Evidence Act, but also by other matters before the Court. A confession recorded by the Court itself could not be 'evidence', but would be a 'matter before the Court'. We, are therefore, of opinion that the language of Section 30, Evidence Act, does not justify a distinction between a confession made by an accused person before the trial and in the course of the trial. A confession made before the Court even at the close of the case for the prosecution can, therefore be said to be a confession 'proved' within the meaning of Section 30 Evidence Act This being so, it could legally be taken into consideration that is to say, used as evidence.
16 In the end the learned Counsel for accused argued that the trial was vitiated because the prosecution had been launched without the previous permission of the Inspector-General of Registration under Section 83 of the Registration Act. That section reads thus:
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 sub-district, 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.
17. Dealing with the section in Dharamdeo Rai v. Ramnagina Rai : 1972CriLJ632 , their Lordships of the Supreme Court observed:
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 Act, but the offences do not come to the knowledge of the Registring 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 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.
18. On the authority of these observations the law must be treated to be well settled that in a case like the present where the offence comes to the notice of the Registering Officer this section does not prohibit a private person from commencing the prosecution directly or along with the cognisable offences, if any, through the agency of the police. In that view the argument must fail.
19. In this background I am of the opinion that the offence under Section 82 of the Registration Act stands fully established against the accused. That inevitably raises the question of sentence. There can be hardly any doubt that the act of registration is a solemn and sacred act. It has far reaching consequences on the rights and obligations of the parties to a deed, particularly so, when the deed covers immovable property. It is, therefore, necessary that everybody concerned in the act should be fair and honest. Where it is polluted by impersonation, as in the present case, the person guilty of such pollution must be dealt with severely. In this view the sentence originally passed by the trial Magistrate may not be excessive or penal, as found by the learned Sessions Judge. But considering the fact that five years have elapsed since the conviction of the accused was recorded by the trial Magistrate, as also the fact that during this period they had to undergo a lot of agony and expense in pursuing different cases at different levels in the hierarchy of the Judiciary, it would be just and proper if a little leniency is shown to them. In my opinion the ends of justice will be adequately served if the substantive sentence is reduced to three months rigorous imprisonment each. With this variation the conviction and sentence passed on the accused by the trial Magistrate is maintained. The revision petitions and the rule for enhancement are disposed of accordingly. The accused shall surrender to their bail bonds and undergo the remaining portion of their sentence.
Mohd. Jalal-Ud-Din, J.
20. I agree.