Queen-Empress vs Batesar Mandal

Tottenham and Norris, JJ.—With regard to the first point we were, during the argument, inclined to think that Mr. Gasper''s contention was well founded; but upon consideration and on examination of the authorities we are of opinion that it cannot be sustained. For the purpose of this case we assume that the proceedings before the Registrar were taken u/s 72 of the Act and not as they should have been u/s 73; and that what the Registrar heard was an appeal and not an application. Now, no doubt, the accused, when he appeared before the Registrar, might have pointed out this irregularity, and might have asked the Registrar to make no order or to dismiss the appeal; but he appeared, made no objection to the form of the proceedings, and must be held to have waived the irregularity. Under these circumstances we are of opinion that upon the authority of Reg. v. Barry 28 L.J. (M.C.) 86: 8 Cox C.C. 121; Queen v. Fletcher L.R. 1 C.C.R. 320; Turner v. Postmaster-General 5 B. and S. 756; Queen v. Hughes L.R. 4 Q.B.D. 614: 14 Cox C.C. 285 the accused may properly be charged with giving false evidence at the enquiry before the Registrar. We are also of opinion that the accused waived any irregularity in the verification of the petition of appeal treating that document as an application u/s 73, and that the second contention by Mr. Gasper fails. See the cases above cited and Queen v. Smith L.R. 1 C.C.R. 110: 11 Cox C.C. 10.

As to the third point raised, we are of opinion that the Joint Magistrate had no authority to frame the second charge. The prosecution for the offence of giving false evidence before the Sub-Registrar was neither commenced by him, or by any of the officers mentioned in Section 83, nor was it sanctioned by any or either of them. These being our views on the case the Magistrate will proceed to dispose of the first charge against the accused as he may think proper, having regard to the evidence before him, of the sufficiency of which we offer no opinion. The proceedings on the second charge must be set aside.