Let me first point out that Section 33 of the Stamp Act, 1899, mandates a court to impound a document if it is not duly stamped, when it is produced before the court or comes before the court. However, the Proviso to sub-section (2) lays down an exception to that:
“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 XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);”
Therefore, as far as a criminal court is concerned, it is not binding on it to examine and impound a document if it is not duly stamped when such document is produced before it. It is a discretion given to the criminal court. Generally speaking, a criminal court may not impound such document.
Likewise, there is a similar exception for a criminal court in Section 35 of the Act which says that a document that is not duly stamped will be inadmissible in evidence, by laying down that:
“nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);”
In view of these provisions, a discretion has been given to a criminal court in the matter of instruments / documents which are not duly stamped. It is not binding on the criminal court to impound such document. This legal position is different from that prevailing before a civil court. My personal feeling is that such document may not generally be impounded by the criminal court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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