# DHARMADEO RAI v. RAMNAGINA llAI

- **Citation:** [1972] 3 S.C.R. 111
- **Court:** Supreme Court of India
- **Decided:** 1972-01-18
- **Case number:** Criminal Appeal No. 33 of 1969
- **Bench:** J. M. Shelat, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dharmadeo-rai-v-ramnagina-llai-5589
- **Pages:** 7

## Headnote

111
Indian Registration Act, 1916, 4'· 83(1)-Section is permissive and not
prohibitive-Does not prevent an aggrieved private person from filing a
complaint.
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 aC<1uitted by
the trial court.
In an appeal .filed by the complainant the High Court
.cpnvioted 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 requi~ed by
s. 83 of the AcJ.
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 sub~
distriGt 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 \\:as that the complaint was incompet~nt as it wa-s filed _by
a
person \vithout obtaining the necessary permission under s. 83 of the Act
and therefore the conviction of the appellant wa·s bad and must be set
aside.
HELD : On a reading of the section it would be clear that it deals only
\\'ith pro~cution for an offence under the Act coming to the knowledge of
the Registering Officer in his official capac~ty. It, in effect, provides that
\vhere an offence comes to the knowledge of the Registering Officer in his
official capacity, a prosecution may be commenced by or with the pennission of any of the officers mentioned in the section. The section
can
possibly ha\"e no applic+ation to cases in which the offences are committed
under the Act, but the offences do not come to the knowledge of the .Re·
gistering Officer in his official capacity. 'fl 13 HJ
The section is not prohibitory in that it does not preclude a private
per~on from commencing a prosecution.
Even in a case where the commission of offence comes to the knowledge of the Registering Offi~r in his
official capacity, the section does not prohibit a private person.from commencing a prosecution as the section is clearly permissive in Iangua~e and
intent. [114 BJ
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 mdre seriously injured by the action of an offender who not only forges a document
but endeavours to give it a higher effiejacy by registering it, there is no
reason why the private person should be deprived of the liberty to J*ose·
cute the offender.
There is also no reaoon why a regi!;tering officer guilty
of an offence under s. 81 of the Act should get Immunity from prosecution by a private individual injured ther<lby, In. s. 195(1) of the ·Criminal
. 112
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Procedure Code, s. 70(1) of the Indian Stamp Act ands. 29 of the Indian
A
Arms Act, !878 the language employed is prohibitory in character. Section 83 (I) of the Act is not prohibitory either in terms or in intention.
[!16A-G]
The view taken by the Allahabad and Rangoon High Courts that the
weird 'may' ins. 83(1) should be read as 'must' was not correct.
[114 H•l 15 DJ
Gopinatlz v. Kulrflp Singh and Anr., I.LR. Calcutta Series, Vol. XI,
566, Re Piranu Nadathi and Anr. and Emperor v. Yesa Nana Didwagh
and Ors., A.LR. 1937. Bombay 191, approved.
B
Nge Pan Gaing and Ors. v. King Emperor, A.I.R. 1927 Ranaoon 61
and Emperor v. Mohd. Mehdi and Ors., A.l.R. 1934 Allahabad, 963, dis·
approved.
Ganga Dibya and Anr. v. Emperor, A.LR. 1943 Patna 227 and Habib
C
Shah v. Mehda Shah, A.l.R. 1960 J & K. 18, referred to.
K. M. Kane.vi v. State of Mysore, [11968] 3 S.C.R. 821. held inapplicable.

## Text

A
B
c
D
E
F
G
H
DHARMADEO RAI
v.
RAMNAGINA llAI
January 18, 1972
(J. M. SHELAT AND K. K. MATHEW, JJ.]
111
Indian Registration Act, 1916, 4'· 83(1)-Section is permissive and not
prohibitive-Does not prevent an aggrieved private person from filing a
complaint.
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 aC<1uitted by
the trial court.
In an appeal .filed by the complainant the High Court
.cpnvioted 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 requi~ed by
s. 83 of the AcJ.
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 sub~
distriGt 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 \\:as that the complaint was incompet~nt as it wa-s filed _by
a
person \vithout obtaining the necessary permission under s. 83 of the Act
and therefore the conviction of the appellant wa·s bad and must be set
aside.
HELD : On a reading of the section it would be clear that it deals only
\\'ith pro~cution for an offence under the Act coming to the knowledge of
the Registering Officer in his official capac~ty. It, in effect, provides that
\vhere an offence comes to the knowledge of the Registering Officer in his
official capacity, a prosecution may be commenced by or with the pennission of any of the officers mentioned in the section. The section
can
possibly ha\"e no applic+ation to cases in which the offences are committed
under the Act, but the offences do not come to the knowledge of the .Re·
gistering Officer in his official capacity. 'fl 13 HJ
The section is not prohibitory in that it does not preclude a private
per~on from commencing a prosecution.
Even in a case where the commission of offence comes to the knowledge of the Registering Offi~r in his
official capacity, the section does not prohibit a private person.from commencing a prosecution as the section is clearly permissive in Iangua~e and
intent. [114 BJ
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 mdre seriously injured by the action of an offender who not only forges a document
but endeavours to give it a higher effiejacy by registering it, there is no
reason why the private person should be deprived of the liberty to J*ose·
cute the offender.
There is also no reaoon why a regi!;tering officer guilty
of an offence under s. 81 of the Act should get Immunity from prosecution by a private individual injured ther<lby, In. s. 195(1) of the ·Criminal
. 112
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Procedure Code, s. 70(1) of the Indian Stamp Act ands. 29 of the Indian
A
Arms Act, !878 the language employed is prohibitory in character. Section 83 (I) of the Act is not prohibitory either in terms or in intention.
[!16A-G]
The view taken by the Allahabad and Rangoon High Courts that the
weird 'may' ins. 83(1) should be read as 'must' was not correct.
[114 H•l 15 DJ
Gopinatlz v. Kulrflp Singh and Anr., I.LR. Calcutta Series, Vol. XI,
566, Re Piranu Nadathi and Anr. and Emperor v. Yesa Nana Didwagh
and Ors., A.LR. 1937. Bombay 191, approved.
B
Nge Pan Gaing and Ors. v. King Emperor, A.I.R. 1927 Ranaoon 61
and Emperor v. Mohd. Mehdi and Ors., A.l.R. 1934 Allahabad, 963, dis·
approved.
Ganga Dibya and Anr. v. Emperor, A.LR. 1943 Patna 227 and Habib
C
Shah v. Mehda Shah, A.l.R. 1960 J & K. 18, referred to.
K. M. Kane.vi v. State of Mysore, [11968] 3 S.C.R. 821. held inapplicable.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
33 of 1969.
D
Appeal by Special Leave from the Jud~ent 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
E
Mathew, J.
This appeal, by special leave, is directed
against the judgment passed in Criminal Appeal· No. 58/1966 F
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-DiviG
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
H
that··Sheo Deo Prasad Rai, posing as Nageshwar, son of Bujhawan, executed the Zerpeshgi deed and that Sheo Deo Prasad
DHARMADEO v. RAMNAGINA (Mathew,/.)
113
A Rai falsely personated as Nageshwar before the Sub-Registrar,
tha'. 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 Bishulldeo Rai and Sheo Deo Prasad Rai of offences under
section 467 and section 120 B of the Indian Penal Code. Bishun11
deo and Sheo Deo Prasad were also convicteq 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 com·
C
plainant against the acquittal of the appellant, namely, Criminal
Appeal No. 58/ 1966. Jn that appeal, the High Court came to
the conclusiQn that the Sessions Judge was wrong in acquitting
the appellant as there was clear evidence that it was he
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
D
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 perE son 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 ~oming 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 exereising powers not
' G
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 8!l offence comes to the knowl~ge
H
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.
Th·~ section can possibly have no
application to cases in which offences are committed under the
114
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Act, but the offences do not come to the. knowledge of the RegisA
tering 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 B
in a case where the commission of an offence comes to the know·
ledge of the Registering Officer in his official capacity, the section
does not prohibit a private person from commencing a prosecu·
tion as the section is clearly permissive in its language and intent.
In other words, the section is an enabling one. It enables the
rersons mentioned therein to commence a prosecution in cases
C
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 otliers(1), the question
whether the section prohibits a private person from commencing D
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 E
has been followed. by the Madras High Court in Re Piranu
Nadathi and others('). There also the Court has taken the view
that the section is an enabling one in that it only authorises the
authorities ment.ioned · therein to commence a prosecution,
and
does nut prohibit a private person from commencing a prosecu·
tion without the permission as required by the section. In r
Emperor ·v. Yesa Nana 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 knowled$e• .. and
that even in cases where he has knowledge of the comm1ss1on of
the offence in his official capacity, the section is only enabling and G
does not preclude a private person from launching a p.rosecution
for the offence.
The same view was taken by a Bench . of the
Patna High Court in Ganga Dibya and another v. Emperor(<)
and also by the High Court of Jammu and Kashmir in Habib
Shah v. Mehda Shah(").
In Nge Pan Gaing and other v. King
Emperor('), the Rangoon High Court held that the word 'may' ff
(1) l.L.R. Calcutta Series, Vol. XI, 566.
(3) A.1.R. 1937 Bombay 191.
(5) A.IR. 1960 J & K 18.
(2) J.L.R. 40 Madras 880.
(4) A.I.R. 1943 Patna 2'1:7.
(6) A.J.R. 1927 Rangoon 61.
DHAIWADBO v. RAMNAGINA (Mathew, J.)
115
A in section 8 3 of the Act should be read as equivalent to 'must be•
and that a prosecution for an offence under the Act coming to theknowledge 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 il the Allahabad High
Court, in Emperor v. Mohd. Mehdi and others('), took the view
B that section 83 lays down a special procedure for prosecution of
the 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·
c
offences committed against registering authority, that only in-·
directly 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
l>
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
E
F
G
H
thereby to cause injury as defined in the Penal Code to any person, an offence punishable with impnsonment 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 tc>·
collude with the person guilty of an offence under section 82 of
the Act, or if they fail to launch a p~ution against the registering officer for an offence under section 81 of the Act, therewould 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 fhe section.
(I) A.l.R. 1934 A11ahabad, 963.
116
SUPREME COURT REPORTS
[ 1972 J 3 S.C.R.
One would have expected a more apt phraseology if the purA
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 endeavours to give
it a higher e_fficacy by registering it, we can perceive no reason
why the private person should be denied the liberty to prosecute
B
the offender.
We also see no re?son 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(') and contended that section
83 of the Act is prohibitory in character. There is no merit in c
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
D
"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
any
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".
E
F
In ull these sections, the language employed is
prohibitory in G
character.
Section 8 3 ( 1) of the Act 1s 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('), Re Piranu Nadathi
and others('), and Emperor v. Yesa Nana Didwagh and others(')
lay down the correct law.
H
(I) [1968] 3 S.C.R. 821.
(2) J.L.R Calcutta, Vol. XI l66.
(.l) l.L.R. 40 Mad•·as 880.
(4) A.J.R. 1937 Bom. 191.
A
B
DHARMADEO v. RAMNAGINA (Mathew, ]. )
117
We cannot appreciate or approve the reasoning in Emperor
v. Mohd. Mahdi and others(') lliild Nga Pan Gaing and others v.
King Emperor(') 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.
(I) A.l.R. 1934 All. 963.
(2) A.1.R. 1927 Rangoon 6J.