Mita Maganbhai Panchal vs State Of Gujarat on 5 August, 2022

[Cites 25, Cited by 1]

Gujarat High Court

Mita Maganbhai Panchal vs State Of Gujarat on 5 August, 2022

Bench: Nirzar S. Desai

    R/CR.MA/9466/2019                             JUDGMENT DATED: 05/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 9466 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         MITA MAGANBHAI PANCHAL
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
MR CHETAN K PANDYA(1973) for the Respondent(s) No. 2
MS. M. D. MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 05/08/2022

                              ORAL JUDGMENT

1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed for Page 1 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 quashing and setting aside the FIR being I - C.R.No.320 of 2018 registered with Amroli Police Station, District :- Surat for the offence punishable under Sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code.

2. During the pendency of this petition, as the charge-sheet was filed, advocate for the petitioner amended the prayer. As per the amended prayer, the petitioner has prayed for quashing and setting aside the charge-sheet no. 16 of 2019 and Criminal Case No. 11444 of 2019 pending before the Court No. 5, 4 th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat.

3. On 01.08.2022, the matter was heard at length. After hearing of the learned advocate Ms. Shah for the petitioner and learned APP Ms. Mehta appearing on behalf of the respondent no. 1 -

State and learned advocate Mr. Chetan Pandya appearing for the respondent no. 2 - original complainant, following order was passed:-

Heard learned advocate Ms.Kruti Shah for the petitioner, learned Additional Public Prosecutor Ms.Maithili Mehta for Page 2 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Respondent No.1 - State and learned advocate Mr.Chetan Pandya for Respondent No.2 - original complainant. With the consent of the learned advocates for the parties, matter is heard finally. Hence, Rule. Learned Additional Public Prosecutor Ms.Maithili Mehta waives service of notice of Rule on behalf of Respondent No.1 - State and learned advocate Mr.Chetan Pandya waives service of notice of Rule on behalf of Respondent No.2 - original complainant.

Arguments are concluded. Put up for dictation of the order / judgment tomorrow i.e. 02.08.2022, at 4:00 O'clock.

4. Thereafter, the matter was listed on 02.08.2022 and 04.08.2022. On 04.08.2022, the matter was adjourned to today.

5. The petitioner herein claims to be a Notary Public since last two years has been arraigned as an accused pursuant to the FIR being C.R.No. I- 320 of 2018 registered before the Amroli Police Station, Surat on 11.10.2018 for the offence punishable under sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code.

6. As per the aforesaid FIR, first informant namely Bhavin Ramehsbhai Patel, he has married to one Chaitaliben Bhavinbhai Patel and after their marriage initially everything went well but thereafter, between himself and his wife some Page 3 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 dispute took place and therefore, his wife Viz. Chaitaliben left his home and started leaving with her parents at her parental home. While being at her parental home, the wife of the complainant namely Chaitaliben delivered a baby girl. As per the case of the complainant, after birth of baby girl, when he tried to meet his daughter he was not permitted to meet the daughter and therefore, he issued a legal notice to her.

7. The complainant came to know through some local people that wife of the complainant was trying to get her name entered into an ancestral property of the complainant situated at Mauje Kosad Bharthana, Taluka: Choryasi, block no. 121 (a) Khata No. 455, District:- Surat admeasuring 1-94-21 he.sq.mtrs. and therefore, upon checking the aforesaid facts online, the complainant found that her wife Chaitali made an application to the Mamlatdar Office for getting her name as well as her daughter's name entered into the aforesaid property for which she prepared a bogus affidavit and got it notarized through the present petitioner by obtaining the signature of the petitioner.

Even section 135 (a) notice under the Bombay Land Revenue Page 4 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Code was issued at the residence of wife and hence, it was never served upon the complainant.

8. In view of the aforesaid attempts made by the wife of the complainant namely Chaitaliben Bhavinbhai Patel, the complainant lodged an FIR against the wife and notary who notarized the allegedly forged documents i.e. the present petitioner.

9. After the registration of the aforesaid FIR, the investigation took place and ultimately charge-sheet was filed against the main accused namely Chaitali Patel as well as the present petitioner - Notary Public.

10. In the meantime, the present petitioner applied for anticipatory bail by preferring the anticipatory bail application being Criminal Misc. Application No. 5576 of 2018 which was allowed by 5th Additional Sessions Judge, Surat vide order dated 20.11.2018 below Exh. 6 by granting the anticipatory bail to the present petitioner.

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11. In between the petitioner had preferred petition for quashing of the FIR and as during the pendency of the FIR, charge-sheet was filed, petition was amended and the petitioner prayed for quashing of the charge-sheet as well as Criminal Case pending before the Court at Surat qua the petitioner only.

12. Heard learned advocate Ms. Kruti M. Shah for the petitioner, learned APP Ms. M. D. Mehta for respondent No.1

- State and learned advocate Mr. Chetan Pandaya with learned advocate Ms. Hetal Patel appearing for respondent No.2 -

original complainant.

13. Learned advocate Ms. Shah for the petitioner submitted that as per the provisions of section 13 of The Notaries Act, 1952 no Court shall take cognizance of any offence committed by a notary in respect of exercise or purported exercise of his functions under the Act except 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.

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R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Learned advocate Ms. Shah submitted that the present petitioner was performing the duty as a notary public and while performing her duties, she notarized the document which are alleged to have been forged and therefore, since, the petitioner was functioning her duty as a public notary unless a complaint in writing is made by an office authorized by Central Government or State Government, by general or special order in that behalf, the Trial Court cannot take cognizance of the offence as per provision of section 13 of the Notaries Act, 1952 and yet despite that the cognizance of offences is taken by the Trial Court which has resulted into registration of Criminal Case No.11444 of 2019 and therefore, the impugned FIR as well as Criminal Case No. 11444 of 2019 and all consequential proceedings thereunder are required to be quashed and set aside by this Court as the necessary mandatory requirements of section 13 of the Notaries Act are not fulfilled.

14. Learned advocate Ms. Shah for the petitioner relied upon the following judgments.

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1. Ashokbhai Rameshchandra Ghantivala V/s. State of Gujarat & Anr. reported in 2009 (2) GLH 491

2. Order dated 20.12.2016 passed in Criminal Misc. Application No. 7439 of 2015 in case of Altaf Ali Gulamali Shaikh & Others V/s. State of Gujarat and others

3. Order dated 13.01.2016 passed in Criminal Misc. Application No.13067 of 2015 in case of Vinodchandra Trambaklal Acharya V/s. State of Gujarat and Other.

4. Judgment dated 09.06.2021 passed in Criminal Misc.

Application No. 20274 of 2019 in case of Harishkumar Balchandra Rajput V/s. State of Gujarat.

15. She submitted that right from the case of Ashokbhai Rameshchandra Ghantivala V/s. State of Gujarat & Anr.

reported in 2009 (2) GLH 491, whenever a mandatory provision of section 13 are not complied with, the Court has ultimately quashed and set aside the FIR and all consequential proceedings pursuant to the aforesaid FIR.

16. By citing the aforesaid four judgments, learned advocate Page 8 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Ms. Shah prayed for quashing and setting aside the impugned FIR as well as all consequential proceedings as well as Criminal Case No. 11444 of 2019 pending before the Court of learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat.

17. Learned advocate Mr. Chetna Pandya appearing for the respondent no. 2 original complainant vehemently opposed the petition and submitted that once the investigation has taken place and charge-sheet is filed against the present petitioner and offence is made out against the petitioner, the Court may not exercise its jurisdiction under section 482 of the Criminal Procedure Code and may not quash the complaint. Learned advocate Mr. Pandya submitted that merely because section 13 of the Notaries Act provides that unless the complaint in wirting made by officer authorized by the Central Government or State Government by general or speacial order, no Court shall take cognizance of an offence committed by a notary is no longer a good law. Learned advocate Mr. Pandya submitted that despite the aforesaid provisions of law time and again, by Page 9 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 way of various decisions, various Courts have considered section 13 of the Act and even if there was no application in writing by authorized officer made by the State or Central Government have refused to quash and set aside the complaint.

18. Learned advocate Mr. Pandya relied upon the following decisions:-

1.judgment dated 12.01.2012 in Criminal Misc.

Application No. 1934 of 2011 in case of Mohammed Yusuf Kasam Kalavat V/s. State of Gujarat.

2. Mohd. Usufbhai Kasambhai Kalavat V/s. State of Gujarat passed in Criminal Revision Application No. 64 of 2015 reported in (2015) 56 (3) GLR 2263. Ganapathyvaratha Subramanian V/s. The State Rep. By the Inspector of Police & Other

3. Gian Singh Vs. State of Punjab & Anr., reported in (2012) 10 SCC 303

4. Judgment of Madras High Court in case of Ganapathyvaratha Subramanian V/s. The State rep by the Inspector of Police and others

19. Learned advocate Mr. Pandya submitted that the present petitioner has abetted the main accused in commission of crime and in view of the aforesaid judgments since charge-

sheet is filed against the present petitioner and cognizance is taken by the Trial Court and now the Criminal Case is pending Page 10 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 against the present petitioner, this Court may dismiss the petition with costs.

20. Learned APP Ms. Mehta appearing for the respondent -

State submitted that as far as section 13 of the Notaries Act is concerned from the record it appears that there is no application in writing by the authorized officer of State or Central Government. She submitted that as per section 85 of the Evidence Act, as regards presumption of a power-of-

attorney, as per section 85 unless a particular document is proved to be forged one, every document purporting to be a power-of-attorney which has been executed before, and authenticated by, a Notary Public or any Court, Judge, Magistrate, Consul or Vice-Consul or representative can be believed to be a genuine document. She submitted that genuineness of document as well as the question whether the document was a forged document or not and whether the petitioner abetted in respect of the crime in respect of creating a forged document or not, can be ascertained only at the end of the Trial by leading evidence. Unless the document is proved Page 11 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 to be a forged document, an officer from the State would not be in a position to submit any application for taking cognizance of the offence against the Notary and therefore, considering the fact that the stage has not yet arisen, no application seems to have been given for taking cognizance of the offence by the authorized persons of the State Government or Central Government as per mandatory requirements of section 13 of the Notaries Act.

21. No other submissions were made by any of the learned advocates appearing for the parties, nor any other judgments except judgments referred hereinabove were cited by any of the learned advocates for the parties.

22. I have heard learned advocates for the respective parties.

I have also perused the material available on record, judgments cited by the learned advocates for the parties and relevant provisions of law relied upon by the learned advocates for the parties.

23. Since, the main arguments advanced by the learned Page 12 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 advocate Ms. Shah for the petitioner was in respect of the section 13 of Notaries Act,1952, I deem it appropriate to reproduce the section 13 of the Act:-

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.

24. Now in view of aforesaid section 13 of the Act, which in a way protect the notaries against taking cognizance of any offence committed by a notary in exercise or purported exercise of his function under this Act, except upon a complaint in writing made by an authorized officer of State or Central Government and therefore, the submissions of learned advocates for the parties were considered in light of the aforesaid provisions and the decisions/judgments relied upon in this regard.

25. Learned advocate Ms. Shah appearing for the petitioner relied upon the order dated 20.12.2016 in case of Altaf Ali Page 13 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Gulamali Shaikh & Others V/s. State of Gujarat and others passed in Criminal Misc. Application No. 7439 of 2015 wherein from paragraph no. 5 to 9 are reproduced as under:-

5. The short point for my consideration is, whether the investigation should continue so far as the applicant no.3 - the Notary Public is concerned.

6. Section 13 of the Notaries Act, 1952 reads 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. The law in this regard is well settled. This Court in the case of Ashokbhai Rameshchandra Gantivala Vs. State of Gujarat & Anr. reported in 2009 (2) GLR 491 has observed as under:-

5. The main plank of the submissions advanced by the learned advocate for the petitioner was that in view of the provisions of Section-13 of the Notaries Act, 1952, the court cannot take cognizance of any offence committed by a Notary in exercise or purported exercise of his functions under the said Act, unless a complaint in writing has been made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. It was accordingly submitted that in view of the prohibition condition in Section 13 of the Act, the learned Judicial Magistrate could not have taken cognizance of the complaint qua the present petitioner unless the same was made in writing, as envisaged under the provisions of Section 13 of the Act.

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6. It was submitted that in view of the nature of the allegations made in the complaint, the chargesheet itself is required to be quashed. Alternatively, it was submitted that in any case, the court could not have taken cognizance of the offence qua the present petitioner. Hence, to the extent cognizance is taken, the same is required to be quashed.

7. On the other hand, Ms. Trusha Patel, learned Additional Public Prosecutor opposed the petition. It is submitted that the petitioner being a Notary is required to ascertain the identity of the person concerned before authenticating the document; that it is not the function of the notary to authenticate a forged document. It was submitted that in any case, no case is made out for quashing out the chargesheet.

8. Heard the learned advocates for the parties. Having regard to the submissions advanced by the learned advocates for the parties, this court is of the view that it is not necessary to enter into merits of the allegations made in the chargesheet or in the F.I.R. as the same could have bearing on the final outcome of the proceedings emanating from the F.I.R. However, examining the main contention raised by the learned advocate for the petitioner namely, that in view of the provisions of Section 13 of the Act, the court could not have taken cognizance of the complaint except as provided under the said provision, it would be necessary to refer to the provisions of Section 13 of the Act which reads 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 Page 15 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 try an offence punishable under this Act.

Unless a complaint is made in the manner prescribed, no Court is empowered to take cognizance of the offence. This view finds support from the objects and reasons behind the said provision, which reads thus:

"The Committee consider that protection should be given to notaries in respect of cognizance of offences.

They think that protection should be given only to notaries who commit an offence acting or purporting to act in the discharge of their functions under this Act. This clause has been inserted with this object."

From the objections and reasons, it is apparent that even if an offence is committed by a notary while acting or purporting to act in the discharge of his functions under the Act, a complaint can be lodged only as provided under Section 13 of the Act. Thus any offence committed by a notary acting or purporting to act in discharge of his functions under the Act would fall within the ambit of the Section and a Court can take cognizance of such offence only if the complaint is made in the manner laid down in the Section.

9. The Supreme Court in the case of R.P. KAPUR VS. STATE OF PUNJAB [AIR 1960 SC Page 866] has laid down certain categories of cases wherein Page 16 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 inherent jurisdiction to quash proceedings can and should be exercised. One of the said categories is where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

10.The aforesaid decision of the Supreme Court would be directly applicable to the facts of the present case inasmuch as there is a legal bar against taking cognizance of an offence against a notary unless the requirements of Section 13 of are satisfied. It is an undisputed position that no complaint as envisaged under Section 13 of the Act has been made against the petitioner. In the circumstances, this is a fit case for exercise of inherent jurisdiction to quash the proceedings insofar as cognizance has been taken by the learned Judicial Magistrate First Class, Surat.

8. The decision referred to above has been later on followed by this Court in the case of Mohmed Usufbhai Kasambhai Kalavat vs. State of Gujarat reported in 2015 (3) GLR 2263.

9. I am conscious of the fact that Section-13 of the Notaries Act will not come into play so far as the powers of the Police to investigate the offence is concerned. The powers of the Police are unfettered because Section-13 will cdime into play only when the Court takes cognizance upon the chargesheet. I am inclined to quash the FIR so far as the applicant no.3 is concerned on two grounds; first, the investigation will be nothing but a futile exercise as ultimately, even if the chargesheet is filed against the applicant-no.3, the Court will not be able to take cognizance in view of the bar of Section 13 of the Notaries Act, 1952 and secondly, there are direct or indirect allegations against the notary as regards any collusion or connivance with the main accused persons. It appears that the applicant no.3 notarized the disputed Agreement to Sell in discharge Page 17 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 of her functions as a Notary Public.

Similar view was taken by the Coordinate bench in case of Vinodchandra Trambaklal Acharya V/s. State of Gujarat and Other, while quashing and setting aside the further proceedings of Criminal Case pending against the notary public.

Thereafter, another Coordinate Bench in its judgement dated 09.06.2021 while deciding Criminal Misc. Application No. 20274 of 2019 in case of Harishkumar Balchandra Rajput V/s. State of Gujarat, observed in paragraph no. 14 as under:-

14. Here in this case, no cognizance can be taken against the present applicant in terms of Section 13 of the Notaries Act, 1952. It is apparent from the provisions of Section 13 of the Notaries Act that if the offence is committed by Notary while acting or purporting to act in the discharge of his functions under the Act, a complaint can be lodged only as provided under Section 13 of the Act and the Court can take cognizance of such offence only if the complaint is made in the manner laid down in the Section. There is no allegation of any moral turpitude.

The co-accused, who are reported as father and sons have already resolved their family disputes. The alleged document of Power of Attorney has been affirmed and accepted as genuine. The complainant has no grievance of any allegation of its being forged. The prosecution appears to be malafide, it is solely with an intention to harass the petitioner since the law does not permit cognizance of offence without following prescribed procedure against the Notary which is a condition precedent. None could be permitted to browbeat the Court proceedings with the weapon of harassment of prosecution and the inherent power of the High Court designed to achieve solitary purpose. The facts, circumstances and the development in the case justifies the quashing of the F.I.R., Charge-Sheet and the other proceedings before the J.M.F.C. against the present applicant. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the applicant for securing the ends of justice.

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R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Similarly, very recently another Coordinate Bench vide oral order dated 31.01.2022 in Criminal Misc. Application No. 6623 of 2020 in case of Shashikant Natwarbhai Patel V/s. State of Gujarat observed as under:-

9. At the outset, this Court deems it appropriate, to refer to the decision in case of Ashokbhai Rameshchandra Gantivala referred to hereinabove more particularly paragraphs nos 5 to 10 thereof which are reproduced for benefit:

"5. The main plank of the submissions advanced by the learned advocate for the petitioner was that in view of the provisions of Section-13 of the Notaries Act, 1952, the court cannot take cognizance of any offence committed by a Notary in exercise or purported exercise of his functions under the said Act, unless a complaint in writing has been made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. It was accordingly submitted that in view of the prohibition condition in Section 13 of the Act, the learned Judicial Magistrate could not have taken cognizance of the complaint qua the present petitioner unless the same was made in writing, as envisaged under the provisions of Section 13 of the Act.

6. It was submitted that in view of the nature of the allegations made in the complaint, the chargesheet itself is required to be quashed. Alternatively, it was submitted that in any case, the court could not have taken cognizance of the offence qua the present petitioner. Hence, to the extent cognizance is taken, the same is required to be quashed.

7. On the other hand, Ms. Trusha Patel, learned Additional Public Prosecutor opposed the petition. It is submitted that the petitioner being a Notary is required to ascertain the identity of the person concerned before authenticating the document; that it is not the function of the notary to authenticate a forged document. It was Page 19 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 submitted that in any case, no case is made out for quashing out the chargesheet.

8. Heard the learned advocates for the parties. Having regard to the submissions advanced by the learned advocates for the parties, this court is of the view that it is not necessary to enter into merits of the allegations made in the chargesheet or in the F.I.R. as the same could have bearing on the final outcome of the proceedings emanating from the F.I.R. However, examining the main contention raised by the learned advocate for the petitioner namely, that in view of the provisions of Section 13 of the Act, the court could not have taken cognizance of the complaint except as provided under the said provision, it would be necessary to refer to the provisions of Section 13 of the Act which reads 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.

A plain reading of Section 13 makes it clear that a complaint against a notary in exercise or purported exercise of his functions under the Act has to be made in writing by an officer authorised by the Central Government or the concerned State Government by general or special order in this behalf. Unless a complaint is made in the manner prescribed, no Court is empowered to take cognizance of the offence. This view finds support from the objects and reasons behind the said provision, which reads thus:

"The Committee consider that Page 20 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 protection should be given to notaries in respect of cognizance of offences. They think that protection should be given only to notaries who commit an offence acting or purporting to act in the discharge of their functions under this Act. This clause has been inserted with this object."

9. The Supreme Court in the case of R.P. KAPUR VS. STATE OF PUNJAB [AIR 1960 SC Page 866] has laid down certain categories of cases wherein inherent jurisdiction to quash proceedings can and should be exercised. One of the said categories is where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

10.The aforesaid decision of the Supreme Court would be directly applicable to the facts of the present case inasmuch as there is a legal bar against taking cognizance of an offence against a notary unless the requirements of Section 13 of are satisfied. It is an undisputed position that no complaint as envisaged under Section 13 of the Act has been made against the petitioner. In the circumstances, this is a fit case for exercise of inherent jurisdiction to quash the proceedings Page 21 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 insofar as cognizance has been taken by the learned Judicial Magistrate First Class, Surat.

10. This Court notes that in the decision referred to hereinabove, learned Co-ordinate Bench has inter alia held after discussing with regard to the Section 13 as well as after going through the objects and reasons of the Act itself that even if an offence is committed by a notary while acting or purporting to an act in discharge of his functions under the Act, a complaint can be lodged only as provided under Section 13 of the Act. Learned Co-ordinate Bench has further held that having regard to the same, only if a complaint is made in the manner prescribed in the Act itself i.e. in writing by an officer authorized by the Central Government or the State Government, the Court concerned could take cognizance of the offence in question. Having observed as thus relying upon the decision of the Hon'ble Apex Court in case of R.P. Kapur vs. State of Punjab and others reported in AIR 1960 SC 866, the learned Co-ordinate Bench had been pleased to quash the proceedings inter alia on the ground that there was a legal bar against institution or continuation of the criminal proceedings in respect of the offence more particularly as the bar being the complaint not being as per the requirement of Section 13 of the Act which prohibits the Magistrate from taking cognizance of the offence if the offence in question was not as per the requirement of the Act.

11. At this stage, it would be apposite to refer to decision of the Hon'ble Apex Court in case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335 has inter alia laid down certain categories of cases by way of illustrations, wherein extraordinary power under Article 226 or inherent powers under Section 482 of the Code of Criminal Procedure could be exercised by this Court either to prevent abuse of the process of any Court or otherwise to secure ends of justice. Para No.102 of the said decision is reproduced hereinbelow for benefit:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.

(3) 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.

(4) 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.

(5) 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 a just conclusion that there is sufficient ground for proceeding against the accused.

(6) 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.

(7) 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."

Illustration No. 6 would be relevant to the facts of the present case whereby in case of a FIR which is barred either with regard to its institution or continuance by the Code or by the provisions of the concerned Act under Page 23 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 which it is instituted, then the High Court exercising jurisdiction under Article 226 of the Constitution or under Section 482 of the Code of Criminal Procedure could quash the same. In the instant case the relevant Act being the Notaries Act, more particularly Section 13 thereof prohibits a Court from taking cognizance committed by a notary in exercise or purported exercise of functions under the Act, unless the complaint is made in writing by an officer authorized by the Central or State Government by a general or specific order. In the instant case the action of the petitioner was in purported exercise of his functions as a notary and therefore the complaint alleging offence ought to be in the manner prescribed under the Act. The complaint -the FIR here being registered at the instance of a private party, it would not be open for the Court concerned to take cognizance of the offence against the petitioner. Hence there is a clear bar against continuation of the FIR impugned as a result of which the same cannot be permitted to proceed any further.

12. In the instant case, it is clear that the FIR had been registered by a private individual and whereas the petitioner had not been named as an accused at that stage. The name of the petitioner had been brought in the array of the accused at the stage of the charge-sheet. In any case since the complaint on basis of which the investigation had been carried out, was by a private individual, while the same may not have fettered the jurisdiction of the Investigating Officer to investigate the alleged offence but at the same time unless the complaint in question was made in the manner as prescribed under the Notaries Act, the Magistrate concerned would not be able to take cognizance of the offence.

13. Having regard to the same more particularly in view of the fact that the Magistrate would not be able to take cognizance of the offence in absence of the complaint as prescribed, in the considered opinion of this Court, the learned Trial Court as well as the Sessions Court had grossly erred in not interfering and allowing the application / revision application preferred by the present petitioner.

The aforesaid judgments relied upon by learned advocate Ms. Shah appearing for the petitioner makes it clear that for taking cognizance of an offence against notary public, the Court can take cognizance of the offence only in case if the complaint is made before the Competent Court in the manner prescribed in section 13 Page 24 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 of the Act. Section 13 of the Act provides for complaint in writing by the authorized officer of State or Central Government to be made before the concerned Court and then only the concerned competent Court can take cognizance of an offence against the notary public for any offence which the notary has allegedly committed while discharging his functions as a Notary Public.

26. Learned advocate Mr. Chetan Pandaya appearing with learned advocate Ms. Hetal Patel for the respondent no. 2 -

original complainant relied upon the judgment dated 12.01.2012 in Criminal Misc. Application No. 1934 of 2011 in case of Mohammed Yusuf Kasam Kalavat V/s. State of Gujarat and other and by relying upon the paragraph no. 5 of said judgment submitted that even if section 13 of the Act provides some protection to the notary against Criminal Cases as no cognizance can be taken except if a complaint is made by authorized officer as prescribed under section 13 of the Act the complaint should not be quashed. By taking into consideration the provisions of section 13, the Coordinate Page 25 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Bench of this Court refused to entertain an application for quashing preferred by notary public. Learned advocate Mr. Pandaya relied upon paragraph no. 5 of the aforesaid judgment which reads as under:-

[5.0] Heard the learned advocates appearing for respective parties at length. At the outset it is required to be noted that the applicant has sought to quash and set aside the impugned FIR mainly on relying upon Section 13 of the Notaries Act, 1952 and relying upon the decision of the learned Single Judge of this Court in the case of Linaben Kantilal Patel (Supra). Considering Section 13 of the Notaries Act, 1952, it appears to the Court that the bar under Section 13 of the Notaries Act, 1952 would not be applicable at this stage of investigation by the concerned 1.0. Section 13 of the Notaries Act, 1952 reads as under:

13.Cognizance of offence. -

(2) No magistrate other than a presidency magistrate or a magistrate of the first class shall try an offence punishable under this Act.

Therefore, section 13 of the Notaries Act, 1952 provides that no court shall take cognizance of any offence committed by Notary in exercise or purported exercise of his functions under the Notaries Act, 1952 save upon complaint in writing made by an officer authorized by the Central Government or a State Government by general or special order in this behalf. Under the circumstances, bar under Section 13 of the Notaries Act, 1952 would be against taking cognizance by a court except upon complaint in writing made by the officer authorized by the Central Government or the State Government. The bar under Section 13 of the Notaries Act, 1952 cannot be made applicable against the investigation or inquiry by the I.0. While considering somewhat similar provision of bar of taking cognizance as provided under Section 195 of the CrPC, the Page 26 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 Hon'ble Supreme Court in the case of M. Narayandas (Supra) relying upon the decision of the Hon'ble Supreme Court in the case of State of Punjab v. Raj Singh reported in (1998) 2 SCC 391 in para 8 has observed as under:

8. We are unable to accept the submissions made on behalf of the Respondents. Firstly it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed. Thus such a ground could not be used to sustain the impugned Judgment. Even otherwise there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v.

Raj Singh reported in 1998 (2) SCC 391. In this case it has been that as follows :

"2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468, I.P.C. by them in course of the proceeding of a civil suit, on the ground that Section 195 (1) (b) (ii), Cr. P C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195, Cr.P.C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1), Cr.P.C.; and it has nothing to do with the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195, Cr.P.C. It is of course true that upon the charge-shhet (cjallan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195 (1) (b), Cr.P.C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340, Cr. PR C. The judgment of this Court in Gopala-krishna Menon v. Raja Reddy ((1983) 4 SCC 240 : 1983 SCC (Cri) 822 : AIR 1983 SC 1053) on which the High Court relied, has no manner of application to the facts of the instant case for there Page 27 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Section 195, Cr. P C."

Not only are we found by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340, Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected.

[5.1] Considering the aforesaid decision of the Hon'ble Supreme Court, the complaint/FIR cannot be quashed and set aside considering the Section 13 of the Notaries Act, 1952. At the most, Section 13 of the Notaries Act, 1952 can be made applicable at the time of taking cognizance by the concerned Court/Magistrate. From plain reading of Section 13 of the Notaries Act, 1952, it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence against the Notary.

[5.2] In view of the above, the decisions of the learned Single Judge in the case of Linaben Kantilal Patel (Supra) and the decision of the Karnataka High Court in the case of V. Ranga Ramu (Supra) would not be of any assistance to the applicant. Under the circumstances, on the aforesaid ground the impugned FIR is not required to be quashed and set aside.

[5.3] Now, so far as the contention on behalf of the learned advocate appearing on behalf of the applicant that applicant has not committed any offence as alleged and he has acted as a Notary and he has only notarized the document/Live-in Relationship Agreement and therefore, his request to quash and set aside the impugned FIR is concerned, it is required to be noted that as such allegations and averments in the impugned FIR prima facie discloses commission of cognizable offences which are further required to be investigated. From the statement of some of the witnesses recorded during the course of investigation, this Court is satisfied that the allegations and averments made in the FIR are required to be further investigated and it appears that original accused No.1 acted as per the advice of the advocate and the Notary Page 28 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 and facilitated original accused No.1 to create Live-in Relationship Agreement despite having knowledge that the daughter of the complainant was minor. Under the circumstances, no case is made out to quash and set aside the impugned FIR at the threshold and without further investigation in exercise of powers under Section 482 of the CrPC.

[6.0] In view of the above and for the reasons stated above, present Criminal Miscellaneous Application fails and deserves to be dismissed and is, accordingly, dismissed. Rule discharged. Ad- interim relief granted earlier stands vacated forthwith.

Learned advocate Mr. Pandaya thereafter, relied upon the judgment dated 25.03.2015 in case of Mohd. Usufbhai Kasambhai Kalavat V/s. State of Gujarat passed in Criminal Revision Application No. 64 of 2015 reported in (2015) 56 (3) GLR 2263. However, though the said judgment was relied upon by the learned advocate Mr. Pandaya, upon reading the judgment, this Court found that the aforesaid judgment was actually in favour of the petitioner as revision application was preferred against the order of rejecting the application for discharge preferred by a notary public wherein the Coordinate Bench of this Court allowed the revision application preferred by the notary public by relying upon the judgment in case of Ashokbhai Ramehschandra Ghantivali (supra) and therefore, though the judgment was cited by learned advocate for the Page 29 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 complainant that will help the petitioner.

Thereafter, this Court also considered the judgment of Madurai Bench of Madras High Court dated 09.03.2020 in case of Ganapathyvaratha Subramanian V/s. The State Rep. By the Inspector of Police & Other and learned advocate Mr. Pandaya relied upon the paragraph no. 7 of the aforesaid judgment, paragraph no. 7 of the aforesaid judgment speaks about the order fresh "under this act in section 13 of the Act".

27. The Court ultimately after considering the other judgments, in paragraphs no. 12 and 13 of the above judgment observed as under:-

12.The expression "under this Act" occurring in Section 13 is thus pregnant with meaning and significance. When Section 13 of the Notaries Act, 1952, comes up for consideration, the expression "under this Act" cannot be ignored or glossed over. No part of a statutory provision can be left out of consideration. I therefore, hold that only when the notary has exercised or purported to exercise his functions under the Notaries Act, 1952, he can hide behind Section 13 of the Act.

13.Coming to the facts on hand, there is nothing on record to show that the document in question which was notarised by the petitioner was also duly notified by him in the notarial register. The petitioner does not appear to have produced his notarial register before the investigation officer. Even before me it was not produced. The petitioner had not demonstrated that the document in question finds mention in the said register. If that had been done, I could have come to the conclusion that Page 30 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 the petitioner had acted in a bona fide manner and that the principal accused had pulled wool over the eyes of the petitioner. In this case, there is nothing on record to show that the act of the petitioner fell within the four corners of the statutory frame work. The Notary must tread on the path laid down by the Act. If during the course of such treading some mishap occurs, the statute is there to protect him against vexatious prosecution. If the Notary abandons the statutory path and undertakes an independent journey, he has to take the consequences and cannot invoke Section 13 of the Act. In this regard, I may refer to the decision of the Hon'ble Delhi High Court reported in (2010) 114 DRJ 343 (Gian Singh v. State). The learned Judge declined to grant relief in a similar quash petition because there was no entry of the document involved in that case in the notarial register. Section 13 will not come to the rescue of those notaries who exercise their function de hors the procedure set out in the statute and the rules framed thereunder.

28. Thereafter, judgment in case of Gian Singh Vs. State of Punjab & Anr., reported in (2012) 10 SCC 303 was considered by this Court. In case of Gian Singh (supra) in paragraph no. 9 of the judgment, while refusing to quash the FIR, the Court observed as under:-

9. The averments contained in the charge sheet clearly show that petitioner has taken contrary and shifting stands. On 4.8.2004 he had refused knowledge of the will purported to have been notarised by him and in fact had made an endorsement to the said effect.

Thereafter on 4.1.2005 an affidavit in writing had been given by him in probate proceedings i.e. in case no.10/2004 claiming that the said will had been executed in his presence and the testator had appeared before him along with witness Anoop Kapoor. On 26.2.2005 he in writing admitted that he had executed the will but the notary register did not contain any such entry.

29. In case of State of Kerala & Ors. V/s. G. Shreedharan Nair, however, aforesaid judgment relied upon by the Page 31 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 advocate for the respondent no.2 - original complainant, seems to be in a different set of facts and which are not applicable in the facts of the present case and therefore, this Court did not it deem it appropriate to discuss about the same judgment at length.

30. Now if, I consider the judgments cited by the learned advocate Mr. Pandya and its applicability as far as judgment of Madras High Court in case of Ganapathyvaratha Subramanian V/s. The State rep by the Inspector of Police and others is concerned, there the FIR was not quashed by the Court on the ground that for getting the protection provided to the notary under section 13 of the Act, he must show that he has performed the duty as notary and it is while functioning his duty as notary, the alleged offence has taken place. In that case, notary registered could not be produced before the Investigating Officer nor it was produced before the Court and therefore, the Court took a view that the said Act would not fall under the purview of "under this Act" as the Act was not a part of his function as notary public. In the instant case, even Page 32 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 the photocopy of the document notarized is on record at page no. 24 and therefore, the aforesaid judgment would not help the complainant.

31. As far as the judgment in case of Giansinh (supra) is concerned, their application for quashing of the petitioner was not considered as the petitioner had taken contrary and shifting stands and therefore, in view of the shifting stand of the petitioner, the petitioner's case for quashing of the complaint was not considered.

32. As regard the judgment relied upon by the learned advocate for the respondent no. 2, in case of Mohasmad Yusuf Kasambhai Kalavat dated 12.01.2012 is concerned, Criminal Misc. Application No. 1934 of 2011, there in paragraph no. 5 while reproducing the relevant observations of Hon'ble Supreme Court in case of State of Punjab v. Raj Singh reported in (1998) 2 SCC 391 in paragraph no. 8, the Supreme Court observed that the statutory power of police to investigate under the Code is not anywhere controlled by section 195 of Page 33 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 the Criminal Procedure Code and therefore, the Coordinate Bench of this Court categorically observed in paragraph no.

5.1 as under:-

[5.1] Considering the aforesaid decision of the Hon'ble Supreme Court, the complaint/FIR cannot be quashed and set aside considering the Section 13 of the Notaries Act, 1952. At the most, Section 13 of the Notaries Act, 1952 can be made applicable at the time of taking cognizance by the concerned Court/Magistrate. From plain reading of Section 13 of the Notaries Act, 1952, it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence against the Notary.

Paragraph no. 5.1 makes it abundantly clear that when the application for quashing was rejected, it was at the stage of investigation and no occasion had arisen to take cognizance of the offence. The Coordinate Bench also categorically observed that at the most section 13 of the Notaries Act can be made applicable at the time of taking cognizance by the concerned Court/Magistrate.

33. In the instant case, the cognizance of the offence is already taken and Criminal Case No. 11444 of 2019 is registered and therefore, at this stage, the petitioner - Notary Public can rely upon the provisions of section 13 in her Page 34 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 defence and as the mandotary provisions of section 13 and the manner prescribed under section 13 is not followed, the cognizance of the offence qua the present petitioner ought not to have been taken by the concerned Court.

34. Further as observed by the Coordinate Bench of this Court, in case of Shashikant Natwarlal Patel that section 13 prohibits a Court from taking cognizance of an offence committed by a notary in exercise or purported exercise of functions under this Act unless the complaint is made in writing by an authorized officer of the State Government or Central Government by general or special order, as in the instant case, the complaint is preferred by the complainant who is not an authorized officer, the Court ought not to have taken cognizance of the same.

35. In view of the aforesaid discussions, as the mandatory provisions and requirements of section 13 of the Act is not followed, the impugned FIR and all consequential proceedings arising out of the same FIR are required to be quashed and set Page 35 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022 R/CR.MA/9466/2019 JUDGMENT DATED: 05/08/2022 aside so as the further proceedings of Criminal Case No. 11444 of 2019 pending before the Court No. 5, 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat are also required to be quashed and set aside.

36. The petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(NIRZAR S. DESAI,J) VARSHA DESAI Page 36 of 36 Downloaded on : Sat Dec 24 22:52:12 IST 2022

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