Karnataka High Court
Shaikh Shafi S/O. Shaikh Ahmed vs State Of Karnataka on 14 February, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC-D:3103
CRL.P No. 101296 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 101296 OF 2023
(482(Cr.PC)/528(BNSS))
BETWEEN:
SHAIKH SHAFI S/O. SHAIKH AHMED,
AGE. 60 YEARS,
OCC. ADVOCATE AND NOTARY,
R/O. NO. 42 (NOW NO. 12),
GLASS BAZAAR
NALAGADDA, BALLARI -583101.
...PETITIONER
(BY SRI R. M. JAVED, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
THROUGH BRUCEPETE P.S., BALLARI
Digitally signed by
VISHAL NINGAPPA REP BY STATE PUBLIC PROSECUTOR,
PATTIHAL
Location: High
Court of Karnataka,
HIGH COURT OF KARNATAKA,
Dharwad Bench,
Dharwad BENCH AT DHARWAD -580001.
2. M. ALLAH BAKASH S/O. LATE M. UMAR ALI,
AGE. 60 YEARS, OCC.
R/O. GOLDSMITH COLONY
BEHIND SAPTAGIRI HALL
COWL BAZAR,
BALLARI -583101.
...RESPONDENTS
(BY SRI SHARAD V. MAGADUM, AGA FOR R1,
SRI SACHIN C. KULKARNI, ADVOCATE FOR R2)
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NC: 2025:KHC-D:3103
CRL.P No. 101296 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973 IS PRAYING TO
A) KINDLY CALL FOR RECORDS, B) SET-ASIDE THE ORDER
PASSED BY I ADDL. DIST & SESSIONS JUDGE, BALLARI IN CRI
R.P. NO. 73/2020 DATED 16.05.2023 AND C) QUASH ENTIRE
PROCEEDINGS PENDING ON THE FILE OF I-ADDL. CIVIL JUDGE
AND JMFC, BALLARI IN CC NO. 683/2015 SO FAR AS ACCUSED
NO.6/PETITIONER IS CONCERNED FOR THE ALLEGED
OFFENCES P/U/SEC. 420, 511, 34 OF IPC. AND D) PASS ANY
OTHER ORDER/S AS DEEMED FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA) The petitioner is before this Court calling in question proceedings in C.C.No.683/2015 registered for the offences punishable under Sections 420 and 511 read with Section 34 of the IPC.
2. Heard Sri R.M. Javed, learned counsel for petitioner, Sri Sharad V. Magadum, learned AGA for respondent No.1 and Sri Sachin C. Kulkarni, learned counsel for respondent No.2.
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NC: 2025:KHC-D:3103 CRL.P No. 101296 of 2023
3. This Court on earlier occasion had disposed the subject petition by the following order:
1. The petitioner is before this Court calling in question the proceedings in C.C. No.683/2015 pending on the file of the learned I Additional Civil Judge and JMFC, Ballari.
2. Heard the learned counsel Sri. R.M. Javed appearing for the petitioner and the learned High Court Government Pleader appearing for respondent No.1-
State.
3. The petitioner is accused No.6. A notary to the document has become the subject matter of the crime. To proceed against the Notary, sanction under Section 13 of the Notaries Act, 1952, is imperative. It is an admitted fact that prior to taking of cognizance of the offence against the petitioner, there is no sanction placed before the learned Magistrate in C.C. No.683/2015. Sanction not having been sought or granted would cut at the root of the matter, qua the petitioner, who is the notary, who would be protected under Section 13 of the Notaries Act, 1952.
4. The issue need not detain this Court for length or delve deep into the matter. Plethora of judgments are rendered by the Co-ordinate Benches of this Court interpreting the trial against the Notary. One of which, I deem it appropriate to quote. The Co-ordinate -4- NC: 2025:KHC-D:3103 CRL.P No. 101296 of 2023 Bench in Criminal Petition No.888/2018 disposed on 11.04.2022 has held as follows:
6. "Upon hearing and perusal of records, which reveals accused No.1 got married the victim girl and the daughter of this complainant-respondent No.2, defacto-complainant by producing the affidavit before the Arya Samaj before accused Nos.7 and 9 and married the victim girl, stating that victim girl was major and had attained age of majority by manipulating the date of birth of the victim girl as 25.09.1999 even though her actual date of birth was 25.09.2000. Admittedly these two petitioners were advocate/notary and they have given declaration in affidavit filed by the parties. After looking to the documents produced by the parties, of course while discharging the duty they have signed and given declarations in the document produced by the parties but it cannot be said, these petitioners had intentionally colluded with the other accused persons and signed agreement of declaration for helping the accused No.1 by manipulating the age of the victim. That apart as per Section 13 of the Notaries Act, there is a bar for taking cognizance by the Court for offences committed by the advocate and notary. Under the said Notaries Act they have to obtain the permission of the Central Government or State Government for filing the charge sheet and taking the cognizance. Admittedly, the petitioners are said to be Notary of Central Government. Such being the case, as per Section 13 of Notaries Act, sanction is necessary or permission is necessary before filing charge sheet and taking cognizance against this petitioner but no such permissions were obtained or produced by the Investigation Officer along with the charge sheet and also -5- NC: 2025:KHC-D:3103 CRL.P No. 101296 of 2023 not mentioned anything about obtaining of the sanction in the charge sheet. Such being the case conducting criminal proceedings against these petitioners/accused Nos.8 and 10requires to be quashed.
Accordingly petition is allowed.
Consequently, the criminal proceedings against the petitioners/accused Nos.8 and 10 in Special Case No.4/2018 pending on the file of Additional District and Sessions Judge, Hassan for the offences punishable under Sections 366, 420, 465, 468, 472, 376, 120A, 114, 120B read with Section 34 of IPC and Sections 4, 6, 17, 12 of the Pocso Act and Sections 9, 10 and 11 of the Child Marriage Restraint Act, is hereby quashed."
5. In the light of the issue standing covered by what is quoted supra, the petition deserves to succeed.
6. For the aforesaid reasons, the following ORDER i. The petition is allowed.
ii. The proceedings in C.C. No.683/2015
pending on the file of the learned I
Additional Civil Judge and JMFC, Ballari, is quashed qua the petitioner.
4. The petitioner was accused No.6. The complainant challenged the said order before the Apex -6- NC: 2025:KHC-D:3103 CRL.P No. 101296 of 2023 Court in Crl.A.No.2927/2024. The Apex Court disposed the appeal by the following order:
"1. Leave granted.
2. The High Court of Karnataka, Dharwad Bench, vide the impugned judgment dated 31.08.2023, and in exercise of its powers under Section 482 Cr.P.C., has quashed the criminal proceedings, i.e., CC No.683/2015, pending in the Court of 1ST Additional Civil Judge and JMFC, Ballari, against respondent No.1.
3. The above-stated complaint, contains respondent No.1 accused is a Notary. allegations that The appellant lodged a complaint against respondent No.1 alleging that a fabricated Gift Deed dated 03.06.2004 in terms whereof the appellant's mother gifted the suit property to one of his brothers, namely, Mohd. Babji, was attested by respondent No.1. The Gift Deed was not registered but was written on stamp papers bearing Nos.345794, 2513547 and 0712826, issued by the State Bank of Mysore. It was found that the stamp papers were issued by the bank in the years 2006 and 2007 whereas the Gift Deed was claimed to have been executed on 03.06.2004. Consequently, the Criminal Complaint was filed.
4. The High Court has quashed the complaint solely on the strength of Section 13 of the Notaries Act, 1952 which, inter alia, provides that "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 authorized by the Central Government or a State Government
5. The High Court has observed that since the complaint is not lodged by an authorized officer, respondent No.1 is entitled to the statutory protection of the aforestated provision.
6. During the course of hearing, it could not be disputed that the complainant has not been heard by the High Court while passing the impugned order. In the facts and circumstances of this case where civil rights of -7- NC: 2025:KHC-D:3103 CRL.P No. 101296 of 2023 the appellant are alleged to have been affected through a fabricated document to which respondent No.1 is a party, we are of the view that the appellant, being the complainant, ought to be heard by the High Court before exonerating respondent No.1.
7. For the reason aforestated, however, without expressing any views on the merits of the case or the grounds upon which the High Court has quashed the proceedings, the instant appeal is allowed in part; the impugned order dated 31.08.2023, passed by the High Court of Karnataka, Dharwad Bench, is set aside and the matter is remitted to the High Court to hear and decide the petition, filed by respondent No.1, afresh after hearing the appellant and the State.
8. The High Court is requested to make an endeavor to decide the matter afresh within from the months four receipt/production of a copy of this order.
As a result, the pending interlocutory application also stands disposed of".
5. The primary ground projected before the Apex Court by the complainant was that, he was not heard in the matter. He was in fact served and remained unrepresented for ages. The respondent/complainant defends the said action on the score that the complainant had changed his address. He would seek to submit that under Section 13 of the Notaries Act, 1952, the petitioner cannot be protected. The submission is noted only to be rejected as Section 13 of the Notaries Act, 1952, which -8- NC: 2025:KHC-D:3103 CRL.P No. 101296 of 2023 this Court had earlier relied on to quash the proceedings, clearly protects a notary from his acts and prosecution without appropriate sanction from the competent authority/appropriate authority. The situation remains the same. However, I deem it appropriate to dispose the petition with a rider that it is open for the respondent- complainant to seek sanction for prosecution, as obtaining under Section 13 (supra) from the hands of the component authority.
6. In the event sanction is obtained from the hands of the competent authority, it is open for the concerned Court to proceed with the proceedings against the petitioner.
7. In view of the aforesaid reasons, the following:
ORDER
(i) The petition stands allowed.
(ii) The proceedings in C.C.No.683/2015, pending on the file of I Addl. Civil Judge and JMFC, -9- NC: 2025:KHC-D:3103 CRL.P No. 101296 of 2023 Ballari, qua the petitioner/accused No.6, stand quashed with the aforesaid liberty to the complainant/respondent.
Sd/-
(M.NAGAPRASANNA) JUDGE NAA List No.: 1 Sl No.: 70 CT. GTB