Sections 38 and 39 of the Registration Act, 1908: Exemptions from Appearance, Summonses and Witnesses

Sections 38 and 39 of the Registration Act, 1908 govern exemptions from personal attendance at a registration office and the legal procedure for summonses, commissions and witnesses. These safeguards permit necessary verification without requiring certain persons to travel to the registration office.

Section 38: Persons exempt from appearance at registration office

Section 38(1) exempts the following persons from appearing personally at the registration office where they would otherwise be required to attend:

1. Section 38(1)(a): Bodily infirmity. A person who cannot attend without risk or serious inconvenience because of bodily infirmity.
2. Section 38(1)(b): Persons in jail. A person confined in jail under civil or criminal process.
3. Section 38(1)(c): Exemption under law. A person exempt by law from personal appearance in court.

Under Section 38(2), the registering officer must either visit the person's house or the jail where the person is confined and examine that person, or issue a commission for the person's examination. The provision excuses attendance at the office; it does not dispense with the examination required by law.

Section 39: Law as to summonses, commissions and witnesses

Section 39 provides that the law currently governing summonses, commissions, compulsory attendance of witnesses and their remuneration in civil court suits applies, mutatis mutandis, to summonses or commissions issued and persons summoned under the Registration Act, except where the Act provides otherwise.

Mutatis mutandis means applying the relevant rules with the changes necessary to fit the registration proceeding. The applicable civil procedure framework includes the Code of Civil Procedure, 1908, particularly its provisions on summonses and commissions, subject to applicable amendments and rules.

How Sections 38 and 39 operate in practice

Where an executant or other person whose examination is required cannot attend because of a statutory exemption, the circumstances should be brought to the registering officer's attention with relevant supporting material. The officer then proceeds through a visit or a commission under Section 38(2). If summonses or commissions are necessary, Section 39 supplies the corresponding procedural framework.

These provisions must be read with Section 34 (enquiry before registration), Section 35 (admission or denial of execution), and Sections 36 and 37 (appearance and service of summons). State amendments, registration rules and administrative procedures may affect the practical process.

Statutory provisions explained

Section 38(1): Three categories of exemption

The provision protects persons suffering bodily infirmity, persons in jail under civil or criminal process, and persons legally exempt from personal court attendance. These categories concern personal appearance, not a blanket exemption from registration requirements.

Section 38(2): Examination at home, jail or by commission

The registering officer must choose one of the statutory methods of examination. A commission authorises an examination through the prescribed procedure instead of requiring attendance at the registration office.

Section 39: Civil court procedural rules

Rules concerning service, examination, attendance and remuneration apply with appropriate adaptations, unless displaced by an express provision of the Registration Act.

Official legal resources

Refer to India Code (Government of India) for the Registration Act, 1908 and the Code of Civil Procedure, 1908, and to the relevant State Registration Department for applicable state-specific amendments and registration rules.