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Himachal Pradesh High Court · body

2000 DIGILAW 136 (HP)

MANSHA RAM v. STATE OF H. P.

2000-06-19

M.R.VERMA

body2000
JUDGMENT (M.R. Verma, J.): This petition is directed against the order dated January 28, 2000 passed by the learned Sessions Judge, Bilaspur in Cr. Rev. No. 1 of 2000 whereby the order dated January 11, 2000 passed by the learned Judicial Magistrate, I-Class Bilaspur in case No. 74/2 of 99/92 directing production of photo copies of Wills on application of the prosecution under Section 311 of the Criminal Procedure Code has been upheld. 2. Brief facts material for the disposal of the case in hand are that the petitioner herein along with respondents No. 2 and 3 is facing trial in the Court of the learned Judicial Magistrate 1- Class, Bilaspur on a charge under Sections 498-A, 494, 506, 380, 466, 468, 471 and 12-B of the Indian Penal Code. One Nika Ram, Registration Clerk has been examined in the said case to prove execution of two Wills by the petitioner. It is alleged that the said witness had not produced the photo copies of the Wills which are essentially required to be produced to prove the charge; therefore, the prosecution moved an application under Section 311 of the Criminal Procedure Code for recalling Nika Ram with direction to produce copies of the said Wills. The petitioner and respondents. No.2 and 3 resisted the application on the grounds that the production of such copies was not necessary and that during the life time of the testator (the petitioner) copies of the Wills could not be procured and produced in evidence. The learned trial Magistrate allowed the application and directed production of the copies of the Will vide order dated January 11, 2000. The revision petition preferred by the petitioner and respondents No. 2 and 3 against the said order was dismissed vide the impugned order by the learned Sessions Judge. Hence the present petitions. 3. I have heard the learned counsel for the petitioner and the learned Additional Advocate General for the respondents/State and have also gone through the relevant records. 4. The controversy between the parties raised the following questions for determination: (i) Whether the impugned order is illegal? (ii) Whether the illegality is of the nature that interference is called for by this Court in exercise of its powers under Section 482 of the Criminal Procedure Code? 4. The controversy between the parties raised the following questions for determination: (i) Whether the impugned order is illegal? (ii) Whether the illegality is of the nature that interference is called for by this Court in exercise of its powers under Section 482 of the Criminal Procedure Code? Question No. (i): Sub-section (2) of Section 57 of the Registration Act, 1908 (here-after referred to as the Act) which provides for supply of copies of Wills, reads as under: "57. Registering Officers to allow inspection of certain books and indexes, and to give certified copies of entries.- (1) *** *** *** (2) Subject to the same provisions, copies of entries in Book No. 3 and the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies". 5. It is crystal clear from a bare reading of the above provisions that before the death of the testator no person, except the testator himself or his agent, is entitled to get copies of a registered Will. Thus, the Registrar is legally bound not to supply copy of a Will to any person other than the testator or his agent during the life time of the testator. The Courts have no powers unless specifically given by law to compel a person to do something which he is legally bound not to do. 6. Section 46 of the Act which empowers the Courts to compel the production of any Will, reads as follows: "46. Saving certain enactments and powers of Courts.- (1) Nothing hereinbefore contained shall affect the provisions of Section 259 of the Indian Succession Act, 1865 (10 of 1865), or of Section 81 of the Probate and Administration Act, 1881 (5 of 1881), or the power of any Court by order to compel the production of any will. (2) When any such order is made, the Registrar shall, unless the will has been already copies under Section 45, open the cover and cause the will to be copies into his Book No.3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid". 7. (2) When any such order is made, the Registrar shall, unless the will has been already copies under Section 45, open the cover and cause the will to be copies into his Book No.3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid". 7. Section 46 supra, no doubt, saves the powers of the Courts to compel production of any will but it has to be read and interpreted in view of the provisions of Section 45 of the Act which reads as follows: "45. Proceedings on death of depositor. - (1) If, on the death of a testator who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same and if the Registrar is satisfied that the testator is dead, he shall, in the applicants presence, open the cover, and, at the applicants expense, cause the contents thereof to be copied into his Book No. 3. (2) When such copy has been made, the Registrar shall re-deposit the original will". 8. It is clear from a bare reading of Section 45 supra that it will operate only after the death of the testator. In view of the words "Nothing hereinbefore contained" as used in Section 46 supra, both these Sections have to be read together. It is evident from a combined reading of Sections 45 and 46 that the provisions of Section 46 shall have application only after the death of the testator and not during his life time. 9. Both the Courts below have decided in favour of re-calling the witness to produce the copies of Wills during the life time of the testator and despite his objections without properly appreciating and contrary to the provisions of Section 57(2) of the Act. Therefore, the impugned order is illegal. Question No. (ii): 10. Section 482 of the Code of Criminal Procedure reads as follows: "482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". 11. 11. Apparently, Section 482 of the Code of Criminal Procedure gives wide powers to the High Court to interfere in three eventualities viz. (i) to give effect to an order of the Court, (ii) if there is an abuse of the process of the Court, and (iii) to secure the ends of justice. 12. A Will takes effect after the death of the testator. It is implicit that a testator wants to keep the execution and specially the contents of a Will a secret during life time. It is to protect the rights of the testator to keep his Will secret till he is dead that in the case of registered Wills the Registrar has legally been barred by Section 57(2) of the Registration Act from giving copies of the will to any person except the testator or his agent. As already seen above, the Courts have no powers even under Section 46 of the Act to compel production of the Will or copies thereof during the life time of the testator. Thus, the impugned order is not only illegal being violative of the provisions of Section 57(2) supra but is also violative of the right of the .testator to keep the contents of his Will a secret during his life time. The impugned order, therefore, is sheer abuse of the process of the Court and unsustainable in law. This Court, therefore, has the powers to interfere under Section 482 of the Code of Criminal Procedure and set the wrong right. 13. As a result, this petition is allowed and the impugned order as also the order January 11, 2000 passed by the trial Magistrate are set aside and the application of the prosecution under Section 311 of the Code of Criminal Procedure is dismissed. 14. Parties, through their learned counsel, are directed to appear before the trial Court on 30-6-2000. Petition Allowed