Gujarat High Court
Navinchnadra Atmaram Sevak vs State Of Gujarat on 9 July, 2024
NEUTRAL CITATION
R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 15253 of 2016
(FOR QUASHING & SET ASIDE FIR/ORDER)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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NAVINCHNADRA ATMARAM SEVAK
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HN SEVAK(7580) for the Applicant(s) No. 1
MR NARENDRA L JAIN(5647) for the Respondent(s) No. 2
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 09/07/2024
ORAL JUDGMENT
1. By way of preferring present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC" for short) for quashing and setting aside of the FIR being Page 1 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined C.R.No.I-181 of 2011 registered with Vatva Police Station, Ahmedabad for the offence punishable under Sections 420, 424, 465, 466, 467, 468, 471 and 120(B) of the Indian Penal Code and subsequent proceeding being Criminal Case No.5892/2015 pending before the court of the learned 7th Judicial Magistrate First Class, Ahmedabad (Rural) arising out of the aforesaid FIR qua the applicant.
2. The sum and substance of the FIR is that the accused have in connivance with each other have forged the signature of the complainant and his uncle on the stamp papers and created forged specific power of attorney and using it as genuine, a sale deed had been executed for the land bearing Survey No.1404 pk. admeasuring 6374 Sq.Mtr. situated at moje Vatva, Taluka : Daskroi, District : Ahmedabad and got it registered before the revenue authority and thereby the accused have committed alleged offence. It is alleged that the so-called forged document has been notarized by the applicant being Notary Public.
3. Heard learned advocates Mr. H.N. Sevak for the applicant, learned APP Mr. Soaham Joshi for the respondent - State of Gujarat and learned advocate, Mr. Narendra Jain for the respondent no.2.
4. Learned advocate, Mr. Sevak submitted that the applicant is a Notary Public duly appointed under the provision of the Notaries Act, 1952 by the Page 2 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined Central Government. Learned advocate submitted that at the relevant point of time, stamp paper was purchased in the name of the respondent no.2 and was presented before the applicant attesting his photograph for notary and after verifying the said documents, in discharge of his duty, the said document was notarized by the applicant, that does not mean that the applicant has forged any document and created any offence as alleged. Learned advocate submitted that after registration of the FIR, the applicant has preferred an application for anticipatory bail before the concerned Sessions Court, which was allowed and the applicant was granted anticipatory bail. Learned advocate submitted that on registration of the FIR, the investigation was put into motion and on conclusion of the same, the chargesheet came to be filed before the concerned Learned Magistrate, where the same is pending for adjudication. Learned advocate submitted that as per Section 13 of the Notaries Act, 1952, no court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under the said Act unless a complaint in writing has been made by an officer authorized by the Central Government or a State Government by general or special order in this behalf. Learned advocate submitted that admittedly in the present case on hand, there is no compliance of statutory requirement of Section 13 of the Notaries Act, Page 3 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined 1952.
5. Learned advocate has put reliance upon the decision of this Court in case of Ashokbhai Rameshchandra Ghantivala Vs. State of Gujarat, reported in 2009 (2) GLH 491 and submitted that in the said decision, this Hon'ble Court has considered the provision of Section 13 of the Notaries Act, 1952 and quashed and set aside the proceeding, however, reserving liberty upon the authority to take appropriate steps under Section 13 of the Notaries Act, 1952. Learned advocate has also put reliance upon the order dated 13.01.2016 passed by this Hon'ble Court in Criminal Misc. Application No.13067/2015, wherein also similar issue was considered. Learned advocate has also relied upon recent order dated 01.05.2024 passed by this Court in Criminal Misc. Application No.7892/2018 with Criminal Misc. Application No.8799/2018. Learned advocate, after referring to the aforesaid orders, submitted that the case of the applicant is squarely covered by the aforesaid decisions and, hence, the impugned proceedings may be quashed and set aside.
6. Learned APP Mr. Joshi has objected present applications with vehemence and submitted that the applicant has actively participated in the commission of crime and applicant, Notary Public by profession, has notarized the forged document and on the strength of the said document, sale deed came to be executed. Learned advocate, Page 4 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined therefore, urged that considering the nature of offence, the application may not be entertained. Learned APP, however, has fairly submitted that there is no compliance of statutory requirement of Section 13 of the Notaries Act, 1952.
7. Learned advocate, Mr. Jain has also opposed the present application with a vehemence and submitted that knowingfully well that the document placed for notarization is a forged document, the applicant has notarized the documents, which clearly goes on to show that the applicant is actively involved in the commission of crime. Learned advocate, however, has fairly submitted that there is no compliance of statutory requirement of Section 13 of the Notaries Act, 1952.
8. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, the moot question, which falls for consideration before this Court, is that being a Notary Public, the applicant can be prosecuted for the alleged offences when there is specific bar as engrated in the statute, more particularly, under Section 13 of the Notaries Act, 1952.
9. It is found out from the facts of the case as stated above that specific power of attorney was forged, which was produced before the applicant being Public Notary, who notarized the said document and the said forged power of attorney was used for the purpose of executing registered sale Page 5 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined deed for the land owned by the original complainant and thereby the accused have committed alleged offences in connivance with each other. However if the case of applicant is considered, it is found out that the applicant has acted as per his profession and notarized the documents and as stated above, after submission of the chargesheet, cognizance has been taken by the court concerned by issuing process upon the applicant. However as per Section 13 of the Notaries Act, 1952, no court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under the said Act unless a complaint in writing has been made by an officer authorized by the Central Government or a State Government by general or special order in this behalf. Admittedly, in the present case, there is no compliance of statutory requirement of Section 13 of the Notaries Act, 1952 before registering the FIR in question against the applicant. Section 13 of the Notaries Act, 1952, provides 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.Page 6 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024
NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined (2) No magistrate other than a presidency magistrate or a magistrate of the first class shall try an offence punishable under this Act."
10. At this juncture, I would like to refer to the decision rendered by the Coordinate Bench of this Court in the case of Pankajbhai Ratilal Bakeri, reported in 2022 (1) Crimes (HC) 139, wherein, in Paragraph Nos.13 and 14, the Coordinate Bench of this Court observed as under:
"13. The applicant-accused in Criminal Misc.
Application No.16623 of 2015 was the Advocate-cum-Notary, who had notarized the documents at the relevant time. As regards taking of cognizance against this applicant is concerned, it is well settled that the Court cannot take cognizance of any offence committed by a Notary in exercise or purported exercise of his functions under the Notaries Act, 1952 unless a complaint in writing has been made by an oficer authorized by the Central Government or a State Government by general or special order in this behalf in view of the provisions of Section 13 of the Notaries Act, 1952. In a judgment of this Court rendered in the case of Ashokbhai Rameshchandra Ghantivala v. State of Gujarat, 2009 (2) G.L.H. 491, it has been held that there is a legal bar against Page 7 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined taking cognizance of an offence against a Notary unless the requirements of Section 13 of the Notaries Act, 1952 are satisfied. In the present case also, there is no compliance of the statutory requirement of Section 13 of the Notaries Act, 1952 and hence, on this ground alone, the impugned complaint deserves to be quashed against the applicant-original accused No.4.
14. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court observed as under :-
"8.1.In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the
First Information Report or the
complaint, even if they are taken at Page 8 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First
Information Report and other
materials, if any, accompanying the
F.I.R. do not disclose a cognizable
offence, justifying an investigation
by police officers under Section
156(1) of the Code except under an
order of a Magistrate within the
purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR
or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach Page 9 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024 NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. If the facts of the present case are considered in the context of the aforesaid observations made by the Coordinate Bench of this Court, in that event, it would be found out that before registering the FIR against the applicant, the statutory requirement of Section 13 of the Notaries Act, 1952 has not been complied with and, therefore merely on this ground, the impugned FIR deserves to be quashed against the said applicant.
Page 10 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024NEUTRAL CITATION R/CR.MA/15253/2016 JUDGMENT DATED: 09/07/2024 undefined
12. Having considered the allegations made in the impugned FIR in the backdrop of the facts of the present case as also the ratio enunciated by the Hon'ble Apex Court in State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, this Court is of the opinion that the impugned FIR filed by the complainant is nothing but a clear misuse and abuse of the process of law insofar as the applicants are concerned and hence it deserves to be quashed and set aside in exercise of inherent powers under Section 482 of the Code of Criminal Procedure, 1973.
13. In the result, the application succeeds and is hereby allowed. Accordingly, the FIR being C.R.No.I-181 of 2011 registered with Vatva Police Station, Ahmedabad and subsequent proceeding being Criminal Case No.5892/2015 pending before the court of the learned 7th Judicial Magistrate First Class, Ahmedabad (Rural) arising out of the aforesaid FIR are hereby quashed and set aside qua the applicant.
14. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 11 of 11 Downloaded on : Fri Jul 12 22:24:59 IST 2024