Madhya Pradesh High Court
Kailash Narayan vs The State Of Madhya Pradesh on 2 April, 2019
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CRR-1306-2019
The High Court of Madhya Pradesh
CRR-1306-2019
(Kailash Narayan Vs. State of M.P.)
Gwalior, dated: 02.04.2019
Shri Vinod Bhardwaj, Senior Advocate with Shri Rajesh Kumar
Shukla, Counsel for the applicant.
Shri Purshottam Pandey, Public Prosecutor for the
respondent/State.
Heard on the question of admission.
The facts of the case are that the complainant Smt. Krishna, wife of Late Rambharosi, lodged a written complaint that her husband Rambharosi was the owner of Survey No.18/2/Min area 1.672 hectares situated in village Karavah Damora. Her husband has expired on 18-11-2014. Thereafter, when She filed an application for mutation of her name, then her name was not mutated by the Patwari on the ground that one Janak Singh of Tahsil Ghatigaon, has applied for mutation of his name on the basis of "Will" executed by Rambharosi. When She went to the office of Tahsildar, then She came to know that a forged "Will" of her Late husband has been prepared because her husband had expired on 18-11-2014, whereas the "Will" was prepared on 19-11-2014. It was further alleged that Janak Singh, on the pretext of publising the Obituary message, had taken the photograph of her husband from her, which was misused by him by affixing the same on the said forged "Will". Thus, it was alleged that 2 CRR-1306-2019 forged "Will" has been prepared and it is also written in the "Will" that no loan is outstanding, whereas her husband had taken a loan of Rs. 70,000 from Punjab National Bank, Patai which is still outstanding. Thus, on the basis of said written complaint, the police registered offence in Crime No. 4/16 for offence under Sections 420,423,466,467,471,471 and 120B of I.P.C.
2. During the investigation, it was found, that the applicant, who was working as Notary had notarized the said "Will", and accordingly, he too has been made an accused.
3. The police after completing the investigation, has filed the charge sheet for the above mentioned offence.
4. Challenging the charge-sheet filed by the police, it is submitted by the Counsel for the applicant, that in view of Section 13 of Notaries Act, the police is not competent to file the charge-sheet and the Court should not have taken the cognizance against the applicant.
5. Heard the learned Counsel for the parties.
6. Section 13 of Notaries Act read as under :
"13. Cognizance of offence.--(1) No court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under this Act save upon complaint in writing made by an officer authorised by the Central Government or a State Government by general or special order in this behalf.
(2) No Magistrate other than a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this Act."
7. It is the case of the applicant, that since, the police has filed a 3 CRR-1306-2019 charge-sheet against him along with other co-accused persons, therefore, the Court, in absence of complaint, could not have taken cognizance of the offence against him. To buttress his contentions, the Counsel for the applicant has relied upon the order dated 16-9- 2014 passed by the Madras High Court in the case of V. Ramakrishnan Vs. State through its passed in Criminal Revision Case (MD) No. 208 of 2014.
8. Heard the learned counsel for the parties.
9. It is well established principle of law that "a court takes cognizance of an offence and not an offender".
10. Thus, in a criminal case, the cognizance can be taken only once and the Court is not required to take cognizance against each and every offencer. Thus, the question which requires for consideration in the present case is that when the Court has already taken the cognizance of offence, then in absence of a complaint as required under Section 13 of Notaries Act, whether the applicant can be prosecuted or not?
11. The word "Complaint" has been defined under Section 2(d) of Cr.P.C., which reads as under :
"2(d) Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.--A report made by a police officer in a case which discloses, after investigation, the 4 CRR-1306-2019 commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"
12. Thus, even in a non-cognizable offence, if the police has filed the charge sheet, then the charge-sheet has to be treated as a complaint, and the police officer has to be treated as complainant.
13. The Supreme Court in the case of Ushaben VS. Kishorbhai Chunilal Talpada reported in (2012) 6 SCC 353 has held as under :
"14. We must now turn to Section 198-A of the Code. It reads thus:
"198-A. No court shall take cognizance of an offence punishable under Section 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the court, by any other person related to her by blood, marriage or adoption."
15. A conjoint reading of the above provisions makes it clear that a complaint under Section 494 IPC must be made by the aggrieved person. Section 498-A does not fall in Chapter XX IPC. It falls in Chapter XX-A. Section 198-A which we have quoted hereinabove, permits a court to take cognizance of offence punishable under Section 498-A upon a police report of facts which constitute offence. It must be borne in mind that all these provisions relate to cognizance of the offence by the court.
16. "Complaint" is defined under Section 2(d) of the Code. The definition reads as under:
"2. (d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.5
CRR-1306-2019 Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"
(emphasis supplied) Explanation to Section 2(d) makes it clear that a report made by a police officer after investigation of a non-cognizable offence is to be treated as a complaint and the officer by whom such a report is made is to be deemed to be the complainant.
17. The above provisions lead us to conclude that if a complaint contains allegations about commission of offence under Section 498-A IPC which is a cognizable offence, apart from allegations about the commission of offence under Section 494 IPC, the court can take cognizance thereof even on a police report.
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19. The upshot of the above discussion is that no fetters can be put on the police preventing them from investigating the complaint which alleges offence under Section 498-A IPC and also offence under Section 494 IPC. In the circumstances, the appeal must succeed. The impugned order is set aside. Obviously, therefore, the direction to delete Section 494 IPC is set aside. The police shall investigate the complaint in accordance with law.
14. Thus, it is clear that the police can investigate a non-cognizable offence along with cognizable offence, and can file charge sheet even for an offence of which the cognizance can be taken by the Court only on the complaint of an aggrieved person or an competent authority.
15. Thus, the contention of the Counsel for the applicant cannot be accepted that that under Section 13 of Notaries Act, where the police has filed charge sheet for offences punishable under Sections 420,423,466,467,471,471,120B of I.P.C. against various persons, then 6 CRR-1306-2019 no cognizance can be taken by the Court against the applicant in view of Section 13 of Notaries Act.
16. Thus, in view of Section 2(d) of Cr.P.C., it is clear that the police charge sheet can be treated as a Complaint and the police officer can be treated as complainant.
17. It is submitted by the Counsel for the applicant, that in view of Section 13 of Notaries Act, the complaint cannot be filed by any other person, except who is authorized by the Central Govt. or State Govt. by a General or Special order in this behalf.
18. Assuming that in view of Section 13 of Notaries Act, the investigating officer was not competent to investigate the matter and to file the charge-sheet (Complaint), even then, the charge sheet cannot be quashed against the applicant only on this ground.
19. The Supreme Court in the case of H.N. Rishbud Vs. Union of India, reported in AIR 1955 SC 196 has held as under :
"9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality, vitiating the proceedings or a mere irregularity arises.
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the 7 CRR-1306-2019 procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr. P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance, Section 190, Cr. P. C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199.
These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b). of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr.P.C. which is in the following terms is attracted :
"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice."
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in -'Prabhu v. Emperor', AIR 8 CRR-1306-2019 1944 PC 73 (C) and .- 'Lumbhardar Zutshi v. The King', AIR 1950 PC 26 (D).
These no doubt relate to the illegality of arrest in the course of investigation which we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court.We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."
20. The Supreme Court in the case of Union of India Vs. Nathamuni reported in (2014) 16 SCC 285 has held as under :
"12. It is clear that in the case of investigation under the Delhi Special Police Establishment Act, an officer below the rank of Inspector cannot investigate without the order of a competent Magistrate. In the present case, order of the Special Judge was obtained by filing an application. That order dated 24-9-2009 shows that it was passed on request and in the interest of justice, investigation pursuant to such order did not suffer from want of jurisdiction and hence, in the facts of the case, the High Court erred in law in interfering with such investigation more so when it was already completed.
13. The question raised by the respondent is well answered by this Court in a number of decisions rendered in a different perspective. The matter of investigation by an officer not authorised by law has been held to be irregular. Indisputably, by the order of the Magistrate investigation was conducted by the Sub-Inspector, CBI who, after completion of investigation, submitted the charge-sheet. It was only during the trial, objection was raised by the respondent that the order passed by the Magistrate permitting the Sub-Inspector, CBI to investigate is without jurisdiction. Consequently, the investigation conducted by the officer is vitiated in law. Curiously enough the 9 CRR-1306-2019 respondent has not made out a case that by reason of investigation conducted by the Sub-Inspector a serious prejudice and miscarriage of justice has been caused. It is well settled that invalidity of the investigation does not vitiate the result unless a miscarriage of justice has been caused thereby."
21. Thus, it is clear that the charge-sheet filed against the applicant cannot be quashed only on the ground of Section 13 of Notaries Act.
22. So far as the merits of the case are concerned, the allegations against the applicant are that he was working as a Notary and had notarized a "Will" after the death of testator.
23. Section 8 of Notaries Act reads as under :
"8. Functions of notaries.--(1) A notary may do all or any of the following acts by virtue of his office, namely:--
(a) verify, authenticate, certify or attest the execution of any instrument;
(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
(c) note or protest the dishonour by non-
acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (XXVI of 1881), or serve notice of such note or protest;
(d) note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters;
(e) administer oath to, or take affidavit from, any person;
(f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate;
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CRR-1306-2019
(h) translate, and verify the translation of, any documents from one language into another;
(h-a) acts as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;
(h-b) act as an arbitrator, mediator or conciliator, if so required;
(i) any other act which may be prescribed.
(2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal.
24. Thus, it is the duty of the Notary to verify, authenticate, certify or attest the execution of any instrument. Verifying or authenticating or certifying or attesting the execution of any instrument, has to be done with utmost care. For verfication, authentication, certification or attestation, a Notary is required to satisfy himself, that the person who has appeared before him for the purposes of execution of any instrument, is the same person, who has been mentioned in the document. It is submitted by the Counsel for the applicant, that it was not expected from a Notary, that he would personally identify the deponent/testator. Since, the deponent/testator was identified by some other person, therefore, the applicant, had no reason to disbelieve such identification. The submission made by the Counsel for the applicant, cannot be accepted and hence, it is rejected. The "Will" notarized by the applicant, bears the photograph of the deponent/testator, whereas the deponent/testator, had already expired prior to the execution of the "Will". Thus, it is clear that the applicant had ample opportunity to compare the photograph with the face of the person, who had signed 11 CRR-1306-2019 the "Will" in front him. Thus, it is clear that the applicant had notarized the "Will" of a person who was already dead. Rambharosi had died on 18-11-2014, whereas the "Will" was notarized on 19-11- 2014 i.e., just one day after the death of Rambharosi. Even the Finger Print Expert has found that the thumb impression on the "Will" are different from the admitted thumb impression of Late Rambharosi. The Madras High Court in the case of V. Ramakrishnan (Supra) has held as under :
"11. The above said contention of the learned Special Public Prosecutor for CBI cases does have substance in it and the same cannot be rejected as untenable. Therefore, the contention raised by the learned Counsel for the revision Petitioner/10th accused that the act of attesting affidavits by teh revision petitioner/10th accused were innocent acts committed on bonafide belief regarding the identify of the deponents (passport applicants), that too based on the identification made by another advocate, who was also a notary but suspended from practising as notary, cannot be accepted as having substance in it......"
25. The Counsel for the applicant has also relied upon the judgment passed by the Supreme Court in the case of Hiralal Jain Vs. Delhi Administration reported in AIR 1972 SC 2598 and submitted that where the lawyer has relied upon the version of his client and had filed his vakalatnama, then it cannot be said that there was prima facie material against the Advocate.
26. Considered the submission made by the Counsel for the applicant. In the case of Hiralal Jain (Supra), the allegations were 12 CRR-1306-2019 that the amount deposited in the Court was fradulently withdrawn by other co-accused persons, and the petitioner therein had appeared as their Counsel after filing his Vakalatnama. However, in the present case, the applicant is a Notary, who has been assigned Statutory duties. He is not required to blindly rely upon the instructions of the executant. Thus, the judgment passed in the case of Hiralal Jain (Supra) has no application to the facts of the case.
27. However, in the case of V. Ramakrishnan (Supra), the definition of complaint has not been taken into consideration, therefore, this Court is of the considered opinion, that in the light of definition of Complaint as well as in the light of the judgment passed by the Supreme Court in the case of Ushaben (Supra) the charge- sheet filed against the applicant cannot be quashed.
28. This application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2019.04.09 17:07:35 +05'30'