Only Judicial Magistrate & Not Executive Magistrate Empowered To Verify Correctness Of Delayed Registration Of Births & Deaths: Madhya Pradesh HC

The division bench of Justice Sheel Nagu and Justice Anand Pathak was essentially dealing with a writ appeal, preferred by the Appellant/Petitioner against the order of dismissal of his writ petition in the nature of Habeas Corpus.

The case of the Petitioner was that he had earlier filed a writ petition in the nature of Habeas Corpus, contending that his 16 years old sister (Corpus) was kidnapped by the respondents (No.5 to No.8). The Police produced her before the Court, where she expressed her willingness to live with her parents. Accordingly, her statements were recorded and a case against the accused persons was registered for offences U/S 376 IPC and U/S 3,4 POCSO Act.

The Petitioner alleged that the Corpus was again kidnapped by Respondent No.5 and because the police did not show any interest in investigating the matter, he filed another writ petition in the nature of Habeas Corpus before the Court. The Corpus was again produced before the Court where she stated that she was a major and had married Respondent No.5 on her own volition. She further conveyed that she wished to live at her matrimonial house.

The Petitioner had argued before the Writ Court that the Corpus was a minor even at the time of her second abduction. However, the Corpus stated before the Court that she was a major and further contended that her parents had created a forged marksheet of a government school for age purpose, whereas she studied at a Madarsa.

The Writ Court had observed that her father had lodged the FIR after she eloped the first time and mentioned her age to be 17 years and 11months, which even the Corpus accepted to be her correct age at the given time. However, in the instant petition, the brother showed her age to be different from the one mentioned in the FIR. The Writ Court thus, sided with the version of the Corpus and dismissed the petition, holding that she was indeed a major.

Aggrieved by the order of the Writ Court, the Petitioner challenged the same on the ground that correct date of birth of Corpus was as 2/5/2003 and in support of his submissions, he referred to her birth certificate issued by Nagar Panchayat, Mau under the M.P. Registration of Births and Deaths Rules, 1999.

He also relied upon one certificate (undated) issued by Government Shastri Primary School Mau, in which her date of birth was referred as 2/5/2003. He also referred to her marksheet for the year 2011-12 (when she was in Class III), to suggest that date her date of birth was 2/5/2003.

Per Contra, the state submitted that the birth certificate produced by Appellant was issued on 22/6/2020, whereby the date of birth of Corpus was referred by Chief Municipal Officer as 2/5/2003. He raised the question that after 17 years, the CMO could not have issued such birth certificate because it was governed by provisions as contained U/S 13 of the Registration of Births and Deaths Act, 1969. He further submitted that after passing the order by Writ Court dated 29/1/2020, this certificate was issued by CMO on 22/6/2020 and therefore, the same could not be taken into consideration.

Based on the submissions of the parties, the Court noted that the question that arose in the matter was "whether CMO or for that matter Tahsildar as Executive Magistrate could have issued birth certificate after lapse of 17 years; whereas, jurisdiction as per Section 13 (3) of Act of 1969 lies with Judicial Magistrate only."

Examining the relevant provisions under the Act of 1969, the Court observed that-

"If Section 13(3) and 30 (f) (g) are seen in juxtaposition then it makes the legislative intent clear that by Section 13 (3) of the Act of 1969, Parliament has given the authority to Judicial Magistrate First Class (or Presidency Magistrate) to verify the correctness of the birth or death if not registered within one year of its occurrence and understandably so because after one year dispute and discrepancies may occur in respect of date of birth or death of a person."

The Court elucidated the importance of determining the correctness of date of birth by referring to Section 15 of Juvenile Justice (Protection & Care of Children) Act, 2015, wherein, person above 16 years but below 18 years, if commits heinous offence then, after due procedure as prescribed, may be tried in Children's Court rather than before Juvenile Justice Board. It also referred to the POCSO Act, where age of the Prosecutrix assumes importance.

The Court held that it was only to avoid all these complications, Section 13 of Act of 1969 provided a mechanism for verification of claim regarding correctness of birth or death beyond one year of its occurrence, before the Judicial Magistrate First Class only and not before the Executive Magistrate.

Perusing Section 30 of the Act of 1969, which provides for the state government to make certain rules, along with Section 13, which deals with delayed registration of births and deaths, the Court noted-

Perusal of Section 30 of Act of 1969 reveals that authority / power to make rules to the State Government has been given by the Parliament in respect of Section 13 (2) and in respect of fees payable for registration is made under Section 13. But very specifically, Section 13 (3) is not under the purview of Rule Making Authority of State Government. In fact, sub-section (2) of Section 30 starts with following words:- "In particular, and without prejudice to the generality of the foregoing provision, such rules may provide for", therefore, State Government can make rules as per the letter and spirit of Section 30 and 13 (3) of Act of 1969 only and cannot go beyond that.

The Court then brought its attention to Rule 9 of the Rules of 1999, which gives power to the JMFC as well as Executive Magistrate to register any birth or death which has not been registered within a year of its occurrence. It observed that although Section 13(3) categorically provides for the Judicial Magistrate to be the authority to look into the respective matter, Rule 9 of the Rules of 1999 also empowered Executive Magistrate with the same authority. In this context, the Court noted-

Rule 13(3) in specific terms gives authority to Magistrate of First Class (or a Presidency Magistrate) to exercise authority for delayed registration but nowhere gives any authority to Executive Magistrate. Even otherwise, spirit of Section 13(3) indicates that correctness of birth or death is to be made after due verification by JMFC and that verification can only be made by way of a judicial proceeding, may be it a summery proceeding, but certainly as per recognized principles of adjudication.

The Court justified the legislative intent behind empowering only the Judicial Magistrate to determine the correctness of date of birth or death, not registered within a year its occurrence-

JMFC has all the necessary tools including to call witnesses, requisition of record from any public authority, compelling the attendance of officers/witnesses and appreciating the rival submissions and evidence beside other tools of adjudication. Executive Magistrate is not equipped with such adjudicatory tools including the authority as referred above. Therefore, understandably, legislative intent under Section 13(3) was to confer jurisdiction over JMFC only and not otherwise.

The Court pointed out that reading Section 30 of Act of 1969 with Section 20 of the General Clauses Act, 1897 makes the case further clear that the state government could not have framed Rules contrary to the directions contained in Section 30 of Act of 1969. In other words, the Attempt cannot exceed the Authority. The Court also examined Section 3 of the CRPC and opined that the concept of incorporation of Executive Magistrate in the whole gamut of scheme appears to be after reframing of CRPC in 1973, wherein, certain powers were given to the Executive Magistrates as well. However, it noted, even then, it would not help the cause of the Appellant or for that matter cause of any Executive Magistrate to entertain cases of delayed registration. The Court observed-

Section 3 (4)(a) establishes authority of JMFC in the realm of Section 13(3) of Act of 1969 because appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or any penalty or detention in custody pending investigation etc.is in the domain of Judicial Magistrate only. Here Section 23 of Act of 1969 talks about penalties and any omission or failure on the part of a person as referred in said provision may attract penalty and therefore, delayed registration of births and deaths is a serious business which can only be resolved by way of appropriate proceedings before JMFC because of operation of Section 13(3) of Act of 1969 which involves appreciation / sifting of evidence and use of all the adjudicatory tools to reach to the conclusion. Executive Magistrate mainly relies upon Affidavits of parties and cursory inquiry by some revenue officer, here and there.

Section 3 (3) of Cr.P.C. also contemplates that any reference to a Magistrate of the First Class in any enactment passed before the commencement of Code shall be construed as a reference to a Judicial Magistrate of the First Class.

The Court, thereby, noted that in the context of the case at hand and in view of the examination of the Act of 1969, it appeared that the legislative intent was clear with respect to Section 30 and 13(3) of the Act of 1969, that Magistrate of First Class shall be construed as a reference to a JMFC as per the CRPC, 1973. Therefore, it held that the Rules of 1999 framed in exercise of powers conferred U/S 30 of Act of 1969 cannot go beyond what is prescribed in the statute itself. Accordingly, the Court struck down Rule 9 of Rules of 1999-

Therefore, the inclusion of Executive Magistrate in Rule 9 of Rules of 1999 needs to be struck down / read down to the extent that delayed registration of births and deaths can only be verified before JMFC of the concerned jurisdiction and Executive Magistrate shall not be allowed to exercise the jurisdiction in respect of delayed registration of births and deaths as per Section 13 (3) of Act of 1969. Accordingly, exercising the inherent and extraordinary powers so vested, we strike down the authority given to Executive Magistrate as per Rule 9 of Rules of 1999 and confines the jurisdiction to a Judicial Magistrate First class in State of Madhya Pradesh.

Therefore, the Court concluded that in the cumulative analysis, the Appeal failed. However, it held that the Appellant shall be at liberty to move appropriate proceedings in accordance with law for delayed registration of birth of Corpus before concerned JMFC as per Section 13 (3) of the Act of 1969 and in accordance with law, if such remedy was available to him.

The Court also made it clear that Executive Magistrate in the state government shall not exercise any jurisdiction in respect of cases of Section 13 (3) of Act of 1969, where non registration of births or deaths exceed one year of its occurrence. For rest of the provisions, including Section 13(1) and (2), proceedings as per the said provisions would continue. Court clarified that its observations were confined to cases with respect to Section 13 (3) of the Act of 1969 only and not for other provisions of the Act of 1969.

Case Title: Kallu Khan v. State of M.P. & Ors.

Citation: 2022 LiveLaw (MP) 38

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