Report No. 67
16.8. Section 33(1)-Exception regarding officers of police whether to be extended.-
Another point concerns the exception in sub-section (1) for officers of police. The question may be considered whether this exception should not be extended also to other officers connected with the investigation of offences. Such extension appears to be desirable, because under the present provision, impounding of the document is obligatory on the persons mentioned in the section, and the section leaves no option in this respect.1 The result is that a law enforcement officer-e.g., a Customs Inspector-is also burdened with this duty, with the consequence that his ordinary work of investigation might suffer. There is no reason why such officers should not be treated on the same footing as police officers, in this context. We recommend such amendment, which is favoured by the replies also.2
1. Pyarelal v. Sukandram, AIR 1926 All 478.
2. Question 49.
16.9. Meaning of "production".-
The word "produced" in the section has also come up for consideration. It has been emphasised that it is not sufficient for the purposes of the section that the document should some how be produced or come before a public officer. In order that this section may apply, it is essential that it should be produced or come before the public officer in the performance of his functions; and a mere production in compliance with an illegal demand will not confer authority on him to take action under the section.1 A registrar requiring the production of a document on the ground that it is not duly stamped, after it has been registered and delivered to the party concerned, cannot be said to be acting "in the performance of his functions." A Full Bench of the Lahore High Court2 has held that a document ordered to be returned because it is not proved, can no longer be considered to be part of the judicial record, and cannot, therefore, properly come before the court again in the performance of its functions, and cannot be impounded.
1. (a) Thakar Das v. Emperor, AIR 1932 Lah 495 (SB).
(b) Collector, Ahmedabad v. Rambhan, AIR 1930 Born 392 (FB).
(c) Uttar)? Chand v. Paramand, AIR 1942 Lah 265.
2. Puran Chand v. Emperor, AIR 1942 Lah 257.
16.10. The word 'produced' has a technical meaning, and means either produced in response to a summons, or produced voluntarily for some judicial purpose.1 A document which falls accidentally or incidentally into a judge's hand, cannot be said to be "produced". In a Madras case,2 it was reiterated that a mere handing over of a document,, even if it is as a result of a summons from the court, cannot be said to be 'production'. There must be volition on the part of the person bringing it to the court, to use it for some purpose. These points of detail, however, do not call for an amendment of the section, as the position with reference to the meaning of 'produced' is fairly clean.
1. Narayandas Nathuram (in re:), AIR 1943 Nag 97.
2. S. Rangaraju v. D.S. Rameshani, AIR 1953 Mad 698.
16.11. Section 33(2), Proviso (a)-References to Chapters of the Code of Criminal Procedure.-
A verbal point may now be mentioned. There is, in section 33(2), Proviso (a), a reference to proceedings under Chapter 12 or Chapter 36 of the Code of Criminal Procedure, 1898. Chapter 12 of that Code related to disputes as to immovable property, and Chapter 36 related to maintenance of wives and children. The Code of 1898 has now been repealed and reenacted in the Code of 1974. It is, therefore, necessary to substitute reference to the corresponding chapters of the Code of 1974 in section 33(2), Proviso (a). Accordingly we recommend that section 33(2), Proviso (a) should be amended so as to refer to Chapter 9 and sections 145 to 148 of the Code of 1974, which now deal with the two matters mentioned above.
16.12. Section 33(3)-Power to declare public offices.-
There is an important question pertaining to section 33(3). Under that sub-section, the State Government has the power to determine, in case of doubt-(a) what are public offices, and (b) who are deemed to be persons in charge of public offices. The power given to the State Government is not limited to State Government offices, and includes even Central Government offices. The question is whether this is proper. The point will be appreciated if the history of the sub-section is considered. As originally enacted in 1899, section 33(3) read as follows:
"(3) For the purposes of this section, in cases of doubt-
(a) the Governor-General-in-Council may determine what offices shall be deemed to be public offices; and
(b) the local government may determine who shall be deemed to be persons in charge of public offices."
By the Adaptation Order of 1937, in clause (a), the words "the collecting government" were substituted, and in clause (b) also the words "the collecting government" were substituted A definition of "collecting government" was inserted by the same Adaptation Order, as section 2(12A). By the Adaptation Order of 1950, the words "the State Government" were substituted in place of the words "collecting government" in both the clauses and the definition of "collecting government" omitted. The power is now vested in the State Government in both cases.
16.13. The question to be considered is whether the power to determine what offices shall be deemed to be public offices should be left to the State Government even in cases where the public office is connected with, or under the control of, the Central Government. It would appear that in 1937 all functions of the Central Government under or in relation to section 33 were entrusted to provincial governments by the Government of India1 Apparently, in view of this delegation already made in 1937, it was, in 1950, considered proper to substitute "State Government" in both the clauses. However, it must be stated that the provision as it now stands cannot escape criticism, because, in the case of an office having an apparent connection with the Central Government, it is anomalous that the State Government should determine whether it is or it is not a "public office".
If, for example, a question arises whether a person holding an election under a Central Act is or is not holding a public office, the question should be decided by the Central Government and not by the State Government. In this connection, it may be noted that in 1920, when clause (a) gave the power to the Governor-General-in-Council, the question whether the office of a returning officer appointed for the purposes of an election to a legislative body constituted under the Government of India Act arose, the ruling that it was not a public office within section 33(3) was given by the Government of India.2 If a similar question arises today, the decision will have to be given by the State Government-which is not a very satisfactory position. Moreover, conflicting decisions may be given by different State Governments in respect of the same office.
1. Government of India Finance Department (Central Revenues), Notification No. 9, dated 13th November, 1937.
2. Government of India Finance Department, Notification No. 2962F, dated 19th November, 1920.
16.14. In view of what is stated above, we are of the view that the provision in clauses (a) and (b) should be revised so as to substitute the expression "appropriate government" for "State Government". The expression "appropriate government" could, for this purpose, be so defined that it means the Central Government in relation to offices whose expenses are paid from the Consolidated Fund of India, and the State Government in other cases. We may mention that the suggested amendment has been favoured by most of the replies to our Questionnaire.1
1. Question 43.
16.15. Section 33-Suggestion to confer powers on Stamp Auditors not accepted.-
There has been a suggestion to amend the section to confer powers1 on Stamp Auditors for impounding documents of local authorities. We have considered it carefully, but are unable to accept it. Stamp Auditors of Corporations should exercise their functions before execution. If the Stamp Auditor is an officer of the Administration, and if the document is "produced", the case is covered by section 33. After impounding, he can then take action under section 38(2). The Corporation (if an executant), can also be prosecuted, in case there is found to be a deficiency and if the other conditions for penal liability are satisfied. On the other hand, if the Stamp Auditor is a Corporation Officer, then the suggestion cannot be accepted, since the Corporation is itself a party. It may also be stated that in doubtful cases, section 31 can be resorted to.
1. Suggestion of the Delhi Administration.
16.16. Recommendation to revise section 33.-
In the light of the above discussion, we recommend that section 33 should be revised as follows:-
"33(1). Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police or any other officer empowered by law to investigate offences, before whom any instrument, chargeable, in his opinion, with duty, is produced of comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same, whether or not the instrument is valid in law.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force when such instrument was executed or first executed:
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter IX or sections 145 to 148 of the Code of Criminal Procedure, 1973;
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf;
(c) nothing herein contained shall apply to any registering officer after registration.
(3) For the purposes of this section, in cases of doubt, the appropriate Government may determine-
(a) what offices shall be deemed to be public offices; and
(b) who shall be deemed to be persons in charge of public offices.
Explanation.-In this section, "appropriate Government" means-
(i) in relation to offices the expenses whereof are paid out of the Consolidated Fund of India, the Central Government, and
(ii) in relation to other offices, the State Government."
16.17. Section 34.-
Section 34 contains a special provision as to unstamped receipts in the following terms:
"Where any receipt chargeable with a duty not exceeding ten naya paise is tendered to or produced before any officer unstamped in the course of the audit of any public account such officer may in his discretion, instead of impounding the instrument, require a duly stamped receipt to be substituted therefor".
The section provides an alternative to impounding.
The statement of objects and reasons said:
"The section has been added, because under the present law (Act 1 of 1879) an audit officer of public accounts, before whom an unstamped receipt is produced, must impound the instrument, and has no power to require the substitution of a duly stamped receipt".
Thus, receipts1 chargeable with duty2 are governed by this section.
The section needs no change. There is hardly any case-law on the section.
1. Statement of Objects and Reasons to the 1879 Bill.
2. Section 2(6) section 2(23) and Article 53.