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

While ruling on who is empowered to verify correctness of delayed registration of births and deaths, the Gwalior Bench of Madhya Pradesh High Court in a brief, brilliant, and balanced judgment titled Kallu Khan Vs State of M.P. & Ors. in Writ Appeal No. 120/2021 delivered on February 11, 2022 has laid down unambiguously that under the Registration of Births and Deaths Act, 1969, only a Judicial Magistrate First Class has the authority to verify the correctness of delayed registration of births and deaths, which have not been registered within one year of their occurrence. It was also made clear that an Executive Magistrate has no authority in this regard. No wonder that corollary to the ruling, it struck down Rule 9 of MP Registration of Births and Deaths Rules, 1999 which authorized the Executive Magistrate along with JFMC for the said purpose.

Briefly stated, the law laid down in this judgment is (i) As per Section 13 (3) of Registration of Births and Deaths Act, 1969, only Judicial Magistrate First Class has the authority to verify the correctness of delayed registration of births and deaths which have not been registered within one year of its occurrence. Executive Magistrate has no authority to verify cases of delayed registration of births and deaths as per Section 13 (3) of Act of 1969.

(ii) Section 30 of Act of 1969 give power to State Government to make rules as specified into the said provision but it does not give any authority in respect of Section 13 (3) of the Act of 1969, in specific terms, therefore, Rule 9 of M.P. Registration of Births and Deaths Rules, 1999 exceeds the mandate of Section 30 of Act of 1969 and thus, goes contrary to legislative intent. Therefore, Rule 9 deserves to be struck down / read down.

(iii) Section 20 of the General Clauses Act 1897 and Section 3(4) of Cr.P.C. relied and discussed."

To start with, this learned judgment authored by Justice Anand Pathak for a Division Bench of Gwalior Bench of Madhya Pradesh High Court first and foremost puts forth in para 1 that, "Instant writ appeal has been preferred by the appellant/petitioner under Section 2 (1) of Madhya Prades Uchch Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 taking exception to order dated 29/1/2020 passed by learned writ Court in W.P.No. 1714/2020; whereby, petition (habeas corpus petition) preferred by appellant/petitioner has been dismissed."

To put things in perspective, the Bench then envisages in para 2 that, "Precisely stated facts of the case are that appellant as petitioner preferred a writ petition under Article 226 of the Constitution of India vide W.P.NO. 24982/2019 in the nature of Habeas Corpus with the allegations that corpus-Tamanna(sister of petitioner), a minor girl aged 16 years being kidnapped by respondents No. 5 to 8. Later on, corpus was produced by police and she expressed her willingness to live with her parents and accordingly her statement was recorded before the Principal Registrar of this Court and she was released to live at her maternal home. Police registered a case vide Crime No. 381/2019 for offence under Section 376 of IPC and Section 3/ 4 of POCSO Act and charge-sheet was filed against accused persons and trial was pending at the relevant point of time."

Furthermore, the Bench then states in para 3 that, "It is further alleged that on 1/12/2019, respondent No. 5 again kidnapped the corpus, therefore, fresh complaint was lodged. Since police refused to take any action on the said complaint, therefore, complaints were made to higher Police Authorities and thereafter, instant writ petition (Habeas Corpus) was filed."

As we see, the Bench then reveals in para 4 that, "Meanwhile, Police produced the corpus again before the Court and she made a statement that she is Major and entered into wedlock with respondent No. 5-Chhotu S/o Harnarayan on her own volition and she expressed her desire to live with her husband at her matrimonial house. Learned writ Court directed her to write down her statement for which she expressed her inability to write down. Accordingly, with the direction of this Court, SHO, Police Station Dehat, District Bhind wrote the statement of corpus, which was signed by corpus as well as Constable Amrita, who brought her to the Court."

As it turned out, the Bench then discloses in para 5 that, "Main contention of petitioner was the age of corpus as according to him, date of birth of corpus is 2/5/2003, therefore, according to him, she was minor when she was allegedly abducted. It was his submission that corpus studied in Govt. Shastri Primary School, Mau, District Bhind in which her date of birth is referred as 2/5/2003. However, corpus opposed the said contention on the basis of fact that she never studied in said school; in fact, she studied in Madarsa and her parents have created forged mark-sheet of govt. Shastri Primary School, Mau, District Bhind for age purpose.."

Simply put, the Bench then specifies in para 6 that, "Father of petitioner Aaseen Khan lodged the FIR on 11/6/2019 when she eloped for the first time and same was registered vide crime No. 381/2019 in which he referred the age of his daughter as 17 years 11 months. Said fact appeared to be correct as stated before the writ Court because in the school leaving certificate as well as mark-sheet of Class VII, certificate of Saraswati Bal Vidhya Mandir dated 16/6/2012 (as provided later by Madarsa Islamiya School, Mau) refers the date of birth of corpus as 6/7/2001 and therefore, father rightly referred the age of corpus as 17 years 11 months and on 1/12/2019, she was major."

Truth be told, the Bench then divulges in para 7 that, "Learned writ Court came to the conclusion that earlier, Father of corpus lodged FIR and filed writ petition, now Brother of corpus has filed the writ petition while showing date of birth other than as mentioned in previous FIR (in which father of appellant/petitioner referred the age of his daughter as 17 years 11 months), resultantly, learned writ Court found the corpus to be Major as her correct date of birth was found to be 6/7/2001 and accordingly dismissed the writ petition."

What next follows is then stated in para 8 that, "Being aggrieved by the said order of writ Court, appellant/petitioner preferred instant writ appeal on the ground that correct date of birth of corpus is 2/5/2003 and in support of his submissions, he referred birth certificate issued by Nagar Panchayat, Mau under the M.P. Registration of Births and Deaths Rules, 1999 (hereinafter shall be referred to as "Rules of 1999"). He also relied upon one certificate (undated) issued by Govt. Shastri Primary School Mau in which date of birth of corpus has been referred as 2/5/2003. He also referred the mark-sheet of year 2011-12 of Class III of corpus to suggest that date of birth of corpus is 2/5/2003."

Furthermore, the Bench then says in para 12 that, "Heard learned counsel for the parties and perused the record. This Court directed the CMO,Mau to bring the record regarding delayed registration proceedings. Same was made available. Therefore, this Court perused the original record."

Of course, the Bench then states in para 13 that, "Instant case is for issuance of Writ under Article 226 of the Constitution of India in the nature of Habeas Corpus. Vide order dated 29/1/2020, learned writ court dismissed the writ petition preferred by the petitioner on the ground that corpus appears to be found Major, while relying upon her date of birth as 6/7/2001, she was sent to her matrimonial home to live with her husband."

Adding more to it, the Bench then remarks in para 14 that, "In the instant case as submitted by learned Govt. Advocate and on close scrutiny, it appears that effect of Section 13 (3) of Act of 1969 vis-a-vis Rules of 1999 are to be seen because in the case in hand, appellant produced birth certificate issued by CMO, Nagar Panchayat Mau in which date of issuance of certificate is 22/6/2020 in which date of birth of corpus is referred as 2/5/2003, therefore, question arises – 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."

For esteemed readers exclusive benefit, the Bench then brings out in para 15 that, "For the regulation of registration of births and deaths and matters connected therewith, Parliament has enacted the Registration of Births and Deaths Act, 1969. Different procedures were prescribed under Chapter III-Registration of Births and Deaths and Section 13 deals with Delayed Registration of Births and Deaths. Same is reproduced hereinbelow for ready reference:-

" 13.Delayed registration of births and deaths.-(1) Any birth of which information is given to the Registrar after the expiry of the period specified therefore, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed.

(2) Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before the notary public or any other officer authorised in this behalf by the State Government.

(3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.

(4) The provisions of this section shall without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefore and any such birth or death may be registered during the pendency of any such action.""

Be it noted, the Bench then holds in para 18 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."

Quite clearly, the Bench then mentions in para 19 that, "As per 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. Age of prosecutrix assumes importance in matters of POCSO Act and to avoid all these complications, Section 13 of Act of 1969 provides 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."

Going ahead, the Bench then points out in para 20 that, "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."

Quite forthrightly, the Bench holds in para 28 that, "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."

On a pragmatic note, the Bench then observes in para 29 that, "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."

Notably, the Bench then enunciates in para 33 that, "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."

It is worth noting that the Bench then mentions in para 34 that, "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. Said subsection starts with the words "unless the context otherwise requires", meaning thereby in normal / general procedure, Magistrate of First Class shall be construed as a reference to a Judicial Magistrate of First Class and if the context in the present controversy is to be seen then in view of the discussion made above, specially in view of the legislative intent, as surfaced in Section 30 of the Act of 1969, it appears that said legislative intent is clear and it does not require the context to be interpreted otherwise. In context of Section 30 and 13(3) of the Act of 1969, Magistrate of First Class shall be construed as a reference to a Judicial Magistrate of First Class as per Code of Criminal Procedure, 1973. On this count also, case of appellant fails."

As a corollary, the Bench then rules in para 35 that, "Therefore, legislature rightly kept the involvement of Executives Magistrate out of this purview. In fact, delayed registration may entail serious repercussions; wherein, an adult accused may represent himself as juvenile by manipulation of records and may go scotfree or a Minor victim may be represented as Major to take the accused out of the clutches of POCSO Act etc. and many more ramifications including National Security may crop up.."

What's more, the Bench then states in para 36 that, "Even otherwise, it is the solemn duty of every citizen to get births and deaths of their near and dear ones registered so that exact population figures available to the Govt. may help the Govt. to formulate policies for welfare of the people. If controversy is seen from this vantage point also, even then delayed registration has wider ramifications."

Naturally, the Court then maintained in para 37 that, "Therefore, in the considered opinion of this Court, the Rules of 1999 framed in exercise of powers conferred under Section 30 of Act of 1969 cannot go beyond what is prescribed in the statute itself."

Most significantly, the Bench then holds in para 38 that, "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."

Very clearly, the Bench then states in para 39 that, "In the present case, Tahsildar conducted a summary enquiry and mainly on the basis of application and affidavit of father of corpus, one Panchnama of some witnesses and school leaving certificate of different schools came to the conclusion of date of birth of corpus as 2/5/2003, which in fact is a sham proceeding and nonest in the eyes of law. CMO issued birth certificate on the basis of directions given by Tahsildar on 10/6/2020 in the capacity of Executive Magistrate. Therefore, said birth certificate stands quashed and would not be treated as valid birth certificate in the eyes of law."

The Bench then holds in para 40 that, "In the cumulative analysis, writ appeal preferred by appellant fails. However, appellant shall be at liberty to move appropriate proceedings in accordance with law for delayed registration of birth of corpus before concerned judicial Magistrate First Class as per Section 13 (3) of the Act of 1969 and in accordance with law, if such remedy is available to him."

For clarity, the Bench states in para 41 that, "Before parting, it is made 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 exceeds one year of its occurrence. For rest of the provisions including Section 13(1) and (2), proceedings as per the said provisions shall continue. This observation is confined to cases in respect of Section 13 (3) of the Act of 1969 only and not for other provisions of Act of 1969."

No doubt, the Bench then rightly holds in para 42 that, "Resultantly, this Court does not find any infirmity in the impugned order dated 29/1/2020 passed in W.P. No. 1714/2020 by learned Writ Court and same is hereby affirmed."

It is then stated in para 43 that, "Consequently, appeal fails and is hereby disposed of with the aforesaid observations and findings."

Finally, the Bench concludes by holding in para 44 that, "Registrar General of this Court is directed to place the copy of this order before Hon'ble the Chief Justice to seek permission for circulation amongst District Judges /District Judiciary. Office of this Court is directed to send a copy of this order to Chief Secretary, Government of Madhya Pradesh to circulate amongst all District Collectors/ District Magistrates for information and to ensure compliance of this order because now onwards Executive Magistrates shall not entertain any application under Section 13 (3) of Registration of Births and Deaths Act, 1969 for authenticity of delayed registration of births and deaths beyond one year of its occurrence."

In sum, the Gwalior Bench of Madhya Pradesh High Court has made it absolutely clear that only Judicial Magistrate and not Executive Magistrate is empowered to verify correctness of delayed registration of births and deaths. It has elaborated in detail and we have discussed only some relevant points which are sufficient to make the whole picture pretty clear! No denying it!