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2018 DIGILAW 1075 (KER)

Sajil T. M. v. State of Kerala

2018-12-20

ALEXANDER THOMAS

body2018
JUDGMENT : 1. The prayers in the above Writ Petition (Civil) are as follows: “i. Call for records connecting Exts.P-1 to P-9 from the respondents concerned. ii. Call for Ext. P-9 from the 2nd respondent and issue Writ of Certiorari to quash the same; iii. Issue Writ of Mandamus directing 2nd respondent to include the name of child 'Adhnan T.S.' and effect the correction of names and addresses of the petitioners as parents of the child, sought for in Exhibits P-2 and P-3.” 2. Heard Sri. K.S.Madhusoodanan, the learned counsel appearing for the petitioners and Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for R1. Though notice has been duly served by special messenger on R-2 Panchayath, there is no appearance for that party. 3. The petitioners are aggrieved by the impugned decision rendered by the notified Registrar of Births and Deaths attached to the 2nd respondent Grama Panchayat rendered as per the impugned Ext.P9 order dated 8.11.2018, whereby the applications made by the petitioners as per Exts.P2 and P3 for inclusion of the name of their child as well as for correction of the entries in the said certificate regarding the names and addresses of the parents of the child etc. have been rejected. 4. From the pleadings and materials on record, it is seen that the petitioners are spouses and a male child was born in that wedlock on 6.2.2015 and the delivery of the child had taken place at Shanthi Hospital, Omasserry, Kozhikode District. It is further stated that the 1st petitioner was implicated as an accused in Crime No.704/2010 of Muvattupuzha Police Station and that he had absconded with the 2nd petitioner and was residing incognito at Omaserry within the limits of the 2nd respondent Grama Panchayat in Kozhikode. During that period, a male child was born in their wedlock and the 2nd petitioner has delivered the child on 6.2.2015 at Shanthi Hospital, Omaserry as afore stated. That fearing arrest, the petitioners had given wrong names and addresses as the parents of the child to Shanthi Hospital authorities, who in turn had conveyed the said wrong information to the Registrar of Births and Deaths attached to the 2nd respondent Omaserry Grama Panchayat and such erroneous entries regarding the names of the parents was thus shown in Ext.P1 birth certificate. It is also pointed out that the name of the child was also not mentioned by the petitioners in the information given by them to the hospital and therefore, the name of the child is not shown in the birth certificate issued by the 2nd respondent as per Ext.P1. From a perusal of Ext.P1 birth certificate, it can be seen that the name of the father of the child is shown as 'Musthaque' and the name of the mother of the child is shown as 'Ayisha Musthaque' and no name is shown as against the coloumn 4, the name of the child. The gender of the child is shown as 'male' and the date of birth of the child is shown as 6.2.2015'. So also the addresses of the parents of the child are also shown as 'Puthan purayil House, Pilassery, Kozhikode, Kerala, India'. The petitioners would assert that as a matter of fact they are the parents of the child mentioned in Ext.P1 and they had given wrong information to the hospital authorities concerned as otherwise they felt that the 1st petitioner will be arrested, as he was then abs-condoning in the said crime proceedings and non-bailable warrant was also pending as against him. 5. It is now pointed out by Sri. K.S. Madhusoodanan, the learned counsel appearing for the petitioner that later the 1st petitioner had surrendered and was remanded to judicial custody and subsequently he had secured bail and the case is now numbered Sessions Case, S.C.No.2/2015, which is now on trial under the Sessions Court dealing with designated National Investigation Agency (NIA) cases and the 1st petitioner is the 2nd accused therein for various offences including under Section 307 IPC and the allegation therein is that the accused persons including the 1st petitioner with the intention to cause death of the victim/defacto complainant therein had amputated the left hand of the victim, who is a Professor of the Private Aided College affiliated College at Thodupuzha etc. 6. The child of the petitioners is now aged about 3½ years. 6. The child of the petitioners is now aged about 3½ years. The petitioners had thereafter obtained Ext.P1 birth certificate through the online mode on 3.4.2018 and they were advised that the erroneous/wrong entries in Ext.P1 regarding the names of the parents of the child should be immediately corrected and that the name of the child should also be included in Ext.P1 as otherwise it would have serious consequences on the future of the child. Accordingly, the petitioners have submitted Ext.P2 application dated 4.4.2018 before the Registrar of Births and Deaths attached to the 2nd respondent Grama Panchayat seeking for corrections of the names and addresses of the parents of the child as shown in Ext.P1 in order to correct the names of the petitioners herein and their addresses in the said certificate and also to include the name of the child therein. Thereafter the 2nd respondent had directed the petitioners to file a joint application for the said purpose and accordingly, the petitioners have submitted Ext.P3 application dated 6.4.2018 and the same was accepted by the 2nd respondent by issuing Ext. P3(a) receipt dated 11.5.2018. 7. According to the petitioners, they have complied with all the provisions of the requirements of the Registration of Births and Deaths Act, 1969 and the Rules framed there under as well as the Cricular No.B1/4356/2015 as evidenced by Exts.P4 toP7. Ext.P4 is the Aadhar identity card of the 1st petitioner. Ext.P4(a) is the Aadhar identity card of the 2nd petitioner, Ext.P5 is the copy of the affidavit of the 1st petitioner sworn to on 16.3.2018 narrating the facts and Exts.P6 and P7 are the affidavits dated 16.3.2018 submitted by the respectable persons of the locality. 8. Later, the 2nd respondent had issued Ext.P8 notice dated 22.5.2018 directing the petitioners to submit certain other documents for considering Exts.P2 and P3 applications. Thereafter, the petitioners have duly submitted all the requisite documents including those called for in Ext.P8 before the 2nd respondent. 8. Later, the 2nd respondent had issued Ext.P8 notice dated 22.5.2018 directing the petitioners to submit certain other documents for considering Exts.P2 and P3 applications. Thereafter, the petitioners have duly submitted all the requisite documents including those called for in Ext.P8 before the 2nd respondent. Later, the Registrar of Births and Deaths attached to the 2nd respondent Panchayat has now issued the impugned Ext.P9 order dated 8.11.2018 rejecting the request of the petitioners in Exts.P2 and P3 applications on the ground that they have submitted wrong and false information regarding the names and addresses of the parents of the child and that they are consequently liable for prosecution in terms of the provisions contained in the above said Act and that therefore, their request cannot be acceded to etc. It is this order at Ext.P9 that is under challenge. 9. The impugned Ext.P9 rejection order dated 8.11.2018 issued by the Registrar of Births and Deaths attached to the 2nd respondent Grama Panchayat reads as follows: xxx xxx xxx 10. The petitioners have candidly admitted that they have given wrong information to the hospital concerned, while admitting the 2nd petitioner to that hospital for delivery of the child, as the 1st petitioner was an abs-condoning accused in a serious criminal case and they were under the apprehension that if they have revealed the correct identity to the hospital authorities, it would have led to the arrest of the 1st petitioner and that it was for evading the due process of law that they had given wrong information to the hospital authorities which led to the conveyance of the wrong information to the 2nd respondent Registrar, which in turn led to the factually wrong entries in Ext.P1 birth certificate. Sections 23 and 24 of the Registration of Births and Deaths Act, 1969 provides as follows: “23. Sections 23 and 24 of the Registration of Births and Deaths Act, 1969 provides as follows: “23. Penalties.- (1) Any person who- (a) fails without reasonable cause to give any information which it is his duty to give any information which it is his duty to give under any of the provisions of sections 8 and 9: or (b) gives or causes to be given, for the purpose of being inserted in any register of births and deaths, any information which he knows or believes to be false regarding any of the particulars required to be known and registered: or (c) refuses to write his name, description and place of abode or to put his thumb mark in the register as required by section 11, shall be punishable with fine which may extend to fifty rupees. (2) Any Registrar or Sub-Registrar who neglects or refuses, without reasonable cause, to register any birth or death occurring in his jurisdiction or to submit any returns as required by sub-section (1) of section 19 shall be punishable with fine which may extend to fifty rupees. (3) Any medical practitioner who neglects or refuses to issue a certificate under sub-section (3) of section 10 and any person who neglects or refuses to deliver such certificate shall be punishable with fine which may extend to fifty rupees. (4) Any person who, without reasonable cause, contravenes any provision of this Act for the contravention of which no penalty is provided for in this section shall be punishable with fine which may extend to ten rupees. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898) an offence under this section shall be tried summarily by a Magistrate. 24. Power to compound offences.-(1) Subject to such conditions as may be prescribed, any officer authorised by the Chief Registrar by a general or special order in this behalf may, either before or after the institution of criminal proceedings under this Act, accept from the person who has committed or is reasonably suspected of having committed an offence under this Act, by way of composition of such offence a sum of money not exceeding fifty rupees. (2) On the payment of such sum of money, such person shall be discharged and no further proceedings shall be taken against him in respect of such offence.” 11. (2) On the payment of such sum of money, such person shall be discharged and no further proceedings shall be taken against him in respect of such offence.” 11. From a reading of the above said provision, it can be seen that furnishing of false information to the Registrar of Births and Deaths is a criminal offence as per Section 23 (1) (b), but the punishment for such an offence is fine which may extend to Rs.50/-. Section 24 of the Act deals with power to compound the offences. By Section 24 of the Act, the power is conferred on the Chief Registrar by special or a general order either before or after the issuance of the criminal proceedings under the Act to accept from any person, who has committed or is reasonably suspected for having committed an offence under the Act by way of composition of such offence a sum of money not exceeding fifty rupees. 12. It is indeed true that the petitioners have committed a grave wrong in having conveyed false and wrong information to the hospital authorities knowing fully well that the said information is false as regards the names and addresses of the parents of the child and this is the factual position even going by the admitted case set up by the petitioners. Therefore, ordinarily in matters like this, a writ Court, which is exercising powers of judicial review, may not exercise its discretionary jurisdiction in favour of such persons. But, equally, by the ordinary standards in the human state of affairs, an authority like the 2nd respondent also cannot be found fault with for having taken the view that a strict approach should be taken as against the persons like the petitioners who had deliberately given wrong and false information. That could have been the course of action in a case where the adverse consequences to be suffered by such a stand would have been none other than the persons who gave such false information. That could have been the course of action in a case where the adverse consequences to be suffered by such a stand would have been none other than the persons who gave such false information. But the crucial fact of the matter is that if such a strict view is taken, the petitioners may in a way be affected by that, but the main victim of such a course of action would be none other than a minor child, who cannot be attributed with any fault for this grievous wrong committed by his parents and if as a matter of fact, the entries regarding the names and addresses of the parents of the child are erroneous and wrong, then it will be detrimentally affecting the future of the child of all throughout his life. Right to personality and individuality etc are also now an important facts of the constitutionally conceived idea of 'right to life' as emanating from Article 21 of the Constitution of India. The stark reality that is confronted by this Court is that unless effective intervention is made, the future of the child will be detrimentally affected, which would certainly amount to infringement of the constitutionally guaranteed right to live with dignity conferred on the child, if as a matter of fact the names of the parents shown in Ext.P1 birth certificate are wrong. True, the 1st petitioner is also an accused of very grievous criminal offence and ordinarily if the wrong information conveyed by him would have been only affecting that person, then there is no question of exercising any discretionary jurisdiction vested under Article 226 of the Constitution of India in favour of the person like the petitioners more particularly the 1st petitioner. But the fact of the matter is that wrongs of the parents cannot be the basis for penalising a child, who is hardly now at the age of 3 ½ years. Therefore, the application as per Exts.P2 and P3 cannot be rejected on the mere ground that the petitioners by their action has conveyed wrong and false information and has thus committed offence under Section 23 of the Act and therefore, the application cannot be considered etc. Therefore, the application as per Exts.P2 and P3 cannot be rejected on the mere ground that the petitioners by their action has conveyed wrong and false information and has thus committed offence under Section 23 of the Act and therefore, the application cannot be considered etc. Hence, it is imperative that the matter is remitted so that the 2nd respondent to consider the merits of the matter and if it is found that the names and addresses of the parents of the child are wrong and erroneous as shown in Ext.P1, then certainly remedial measures is called for so as to invoke the powers conferred on the notified Registrar in terms of Section 15 and Section 11 of the Registration of Births and Deaths Act and in the light of the discretionary powers vested with notified Registrar to carry out such necessary corrections. 13. This Court in a series of cases has laid down the parameters and the legal principles which regulate the exercise of the discretionary powers conferred on the Registrar to deal with the plea for correction of the entries in the birth certificate. It will be profitable to refer the various decisions of this Court as in Sivanandan v. Registrar of Births and Deaths [ 2007(3) KLT 721 ], Varghese v. Director of Panchayat [ 2008(2) KLT 278 ], Chalakudy Municipality v. Malavika [ 2009(4) KLT 714 (DB), Johnson v. Registrar of Births and Deaths [2017 (2 ) KLT 577] and Mathew Alex v. Kanjirappally Grama Panchayat [2018(3)KLT 126] etc. This Court in decision as in Sivanandan's case (supra) reported in [ 2007(3) KLT 721 ] and Mathew Alex's case (supra) [2018(3)KLT 126] has specifically held that the Registrar of Births and Deaths has the power to consider the pleas for correction not only in respect of the factual scenarios conceived in Section 15 of the Act and the Rule 11 of the Rules but also in respect of the factual scenarios which are not covered by those statutory provisions and in such cases, where the pleas are not covered by the factual scenarios conceived in Section 15 of the Act and Rule 11 of the Rules, then the Registrar will have to exercise his discretion by examining as to whether the pleas for correction are genuine and bona fide and are not vitiated by any extraneous and ulterior considerations and further that in such cases, the golden rule is that the Registrar should then exercise his discretion by following the well known principles of justice, equity and good conscience etc. 14. The upshot of the above decision is that the impugned order is illegal and ultra vires and would require interdiction so as to effectuate a remit in the matter for enabling the 2nd respondent to consider the merits of the plea made by the petitioners in Exts.P2 and P3 applications. In that view of the matter it is ordered that Ext.P9 rejection order dated 8.11.2018 will stand set aside. The request of the petitioner as per Exts.P2 and P3 applications will stand remitted to the Registrar of respondent Grama Panchayat for consideration of the matter afresh. Accordingly, it is ordered that the 2nd respondent Panchayat may request a competent revenue official like the Village Officer concerned etc to make a comprehensive enquiry into the various factual aspects emanating in Exts.P2 and P3 applications with due prior notice to the petitioners. The 2nd respondent Registrar will also ensure that a police verification process is also conducted in respect of the above said matters. The 2nd respondent Registrar will also ensure that a police verification process is also conducted in respect of the above said matters. On making such a request by the 2nd respondent Registrar, the competent Village Officer concerned and the competent police authorities concerned will immediately ensure that the appropriate enquiries are conducted by those respective authorities and reports thereon should be furnished to the 2nd respondent without much delay preferably within a period of six week from the date of intimation in that regard given by the 2nd respondent. The above said enquiry process to be conducted by the Village Officer and the police authorities concerned is to ascertain the correctness of the factual aspects from the hospital authorities concerned and as to how the wrong and false information has occurred in Ext.P1 certificate and also more crucially as to whether the petitioners are in-fact the parents of the child. Thereafter, the 2nd respondent should ensure that the copy of the report of the Village Officer and the gist of the findings in the police verification report should be given to the petitioners. In this regard, it is made clear that the 2nd respondent need not give the copy of the entire report of the police verification process to the extent it contains any confidential and other aspects, But, the gist of the findings in the said reports should be duly communicated by the 2nd respondent to the petitioners. Thereafter, the petitioners may submit detailed written submissions in the matter to the 2nd respondent and thereupon the 2nd respondent will afford a reasonable opportunity of being heard to the petitioners through their authorised representative/counsel, if any and then should take considered decision on the plea made by the petitioners in Exs.P2 and P3 and should take a decision as to whether or not the names and addresses of the parents of the child as shown in Ext.p1 are wrong and whether the petitioners are in fact the parents of the child concerned. After taking into consideration all relevant aspects of the matter, the 2nd respondent will take a considered decision on the said applications without much delay preferably within a period of two months from the date of receipt of the reports of the competent Village Officer concerned and the police verification report as afore stated. After taking into consideration all relevant aspects of the matter, the 2nd respondent will take a considered decision on the said applications without much delay preferably within a period of two months from the date of receipt of the reports of the competent Village Officer concerned and the police verification report as afore stated. However, it is made clear that this judgment will not in any manner stand in the way of the 2nd respondent or any other competent authority for initiating criminal proceedings against the petitioners as conceived in Section 23 and/or Section 24 of the Registration of Births and Deaths Act. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.