Bombay High Court
Seema Hitesh Khandelwar @ Seema Manish ... vs State Of Mha. Thr. Pso Ps City Kotwali ... on 6 June, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
wp.602.2022.judg.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.602 OF 2022
Smt. Seema Hitesh Khandelwal
@ Smt. Seema Manish Khuteta,
Aged 50 Yrs., Occ.: Housewife,
R/o. Shyam Nagar, Congress Nagar
Road, Amravati,
Presently at Jalalkheda,
Tah. Narkhed, Distt. Nagpur .... PETITIONER
// V E R S U S //
1. State of Maharashtra,
Through Police Station Officer,
Police Station, City Kotwali,
Amravati.
2. Laxmi Hemant Pangarkar,
Aged 62 Yrs., Occ.: Advocate,
R/o. Camp Amravati, Tah. &
Distt. Amravati. ... RESPONDENTS
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Mr. Anil Dhawas, Advocate for the petitioner
Ms M. H. Deshmukh, APP for the respondent No.1/State
Mr A. S. Mardikar, Sr. Adv., assisted by Ms Ira Khisti and Mr P. M. Pande,
Advocates for respondent No. 2
-----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
JUDGMENT RESERVED ON : 19/04/2023
JUDGMENT PRONOUNCED ON : 06/06/2023
JUDGMENT :
1 Heard. ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 2 2 Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties. 3 In this criminal writ petition, filed under Article 226 read with Article 227 of the Constitution of India, the petitioner who is the informant in the Crime bearing No. 29 of 2013 registered at City Kotwali Police Station Amravati, has challenged the order dated 13.10.2020 passed by the learned Chief Judicial Magistrate, Amravati, whereby the learned Chief Judicial Magistrate discharged accused No. 5- Smt Laxmi Hemant Pangarkar from the said crime bearing No. 29 of 2013 for the offences punishable under Sections 420, 467, 471, 472 read with Section 34 and Section 120 B of the Indian penal Code (hereinafter referred to as 'IPC').
4 The facts leading to this writ petition are as follows:
The informant was married to Hitesh Khandelwal.
He died on 27.10.2009. After the death of Hitesh Khandelwal, she got married to one Manish Khuteta on 04.12.2012. In the Crime ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 3 bearing No.29 of 2013 there are eight accused. The accused No.1 is the brother of deceased Hitesh Khandelwal. The accused No. 2 is the mother of Hitesh Khandelwal. Accused No. 5 is a practicing Advocate and notary public. According to the informant, after the death of husband Hitesh Khandelwal, she was entitled to get share in the joint family property. It is alleged that in order to divest her of her share and right in the property, the accused hatched a conspiracy. The property was in the name of her father-in-law - Mr Ratanlal Khandelwal.
5 It is stated that her father-in-law deceased Ratanlal Gopinath Khandelwal was admitted in ICU section of Dr. Patankar Hospital, Shrikrushnapeth, Amravati on 10.01.2009. Deceased Ratanlal was paralyzed and was in coma. He was on ventilator. He did not regain consciousness and ultimately died on 29.01.2009. It is alleged that the accused persons pursuant to the conspiracy forged the will deed dated 16.01.2009. It is alleged that the deceased was admitted in ICU. He was on ventilator. He was unconscious. In this condition, the will deed was prepared. It was prepared with a ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 4 view to cheat the informant. On the basis of the report, lodged by the informant, the investigation was conducted. The investigation prima facie revealed the commission of offence of forgery of will deed of the deceased by all the accused persons with a view to cheat the informant. As far as accused No. 5-the notary is concerned, it is the case of the prosecution that she was part of conspiracy and she tried to give an authenticity to the will deed by attesting the will deed.
6 After filing of the charge-sheet, the accused No. 5 made an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.'). It is contended that accused No. 5 was not scribe of the will deed. The informant had no right over the property of deceased- Ratanlal. The informant was aware that the deceased executed the will with his free consent. Deceased did not challenge the will deed during his lifetime. There was no question of any fraud or forgery. 7 It is contended that the act alleged to have been ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 5 committed by accused No. 5 was pertaining to her official act as notary. She notarized the document by following the due process and rules. It is further contended that as per Section 13 of the Notaries Act, 1952 (hereinafter referred to as 'the Act of 1952') the notary has exemption from the prosecution. In this case, the cognizance of the offence was taken by the Magistrate contrary to the mandate of Section 13 of the Act of 1952. It is stated that act alleged to have been done was in the exercise or purported exercise of functions under the Act of 1952. Therefore, in the absence of complaint by the authorized officer of the Central Government or State Government, the learned Magistrate was not empowered to take the cognizance. On these averments, the accused No. 5 prayed for her discharge.
8 The investigating officer filed the reply and opposed the application. He has reiterated the facts of the case of the prosecution as stated herein above. Besides, it is contended that the investigation revealed that late Ratanlal was not physically and mentally fit to execute the will deed. The medical treatment papers ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 6 collected from the hospital of Dr. Patankar were referred to the Government Medical Board consisting of three eminent doctors. On the basis of the record, the medical board has opined that deceased Ratanlal was not fit and competent to prepare the will deed, which was attested by the accused No. 5 being a notary. It is contended that the act of forgery of document and cheating pursuant to the conspiracy with the remaining accused cannot be said to be done in the exercise or purported exercise of the functions of the notary under the Act of 1952. There is ample oral and documentary evidence to prima facie prove that on the given date and time the will deed was neither executed nor attested by accused No. 5, as sought to be made out, in the Hospital. The offence committed by accused No. 5, as stated above, cannot form part of the functions of the Act of 1952. Therefore, Section 13 of the Act of 1952 is not applicable. The defence sought to be raised by invoking Section 13 of the Act of 1952 is not at all tenable.
9 Learned Chief Judicial Magistrate granted an opportunity of hearing to both the parties. Learned CJM, for the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 7 reasons recorded in his order, found that the cognizance of the offence taken against accused No. 5 was contrary to the provisions of Section 13 of the Act of 1952 or without complying the basic requirements of Section 13 and therefore, the learned CJM was pleased to allow the application for discharge. The informant being aggrieved by order has come before this Court in this writ petition. 10 I have heard Mr A. A. Dhawas, learned Advocate for the petitioner, Ms M. H. Deshmukh, learned APP for the State and Mr A. S. Mardikar, learned Senior Advocate for the respondent No.
2. Perused the record and proceeding.
11 Learned Advocate for the petitioner took me through the record and proceedings and pointed out the role played by accused No. 5. Learned Advocate pointed out that the material on record prima facie shows that on the date of execution of the will deed the deceased was not only admitted in the ICU but he was on ventilator and in an unconscious condition. Learned Advocate submitted that in the fact situation, the notary, being an Advocate, ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 8 was required to be very careful. Learned Advocate pointed out from the record that the accused persons on the given date did not visit the hospital and particularly the ICU of the hospital, where the deceased was admitted. Learned Advocate pointed out that will deed was not simply notarized. It was attested by the notary - accused No. 5. Learned Advocate took me through the relevant paragraph of the will deed and pointed out that it was stated in the will deed that before attesting the execution of will deed it was allegedly read over and explained to deceased Ratanlal by the notary and after understanding the contents he had put his thumb impression on the will deed. Learned Advocate pointed out that there are five thumb impressions of the deceased on the will deed, which were allegedly put in presence of the notary. The notary has certified the attestation of the execution of the will deed. Learned Advocate submitted that there is ample evidence on record to show that the will deed was not executed, as sought to be made out, in the ICU, but it was prepared outside the hospital and attested by the notary. Learned Advocate submitted that there is ample evidence to show that the conspiracy was hatched by the accused persons and ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 9 accused No. 5 joined the said conspiracy and prepared the forged document. Learned Advocate submitted that this act of forgery of document and thereby cheating the informant by divesting her of the right in the property by no stretch of imagination could be said to be act in the exercise or purported exercise of his functions under the Act of 1952 by the notary. Learned Advocate submitted that Section 13 of the Act of 1952, cannot be invoked in such a factual situation. Learned Advocate submitted that accused No.5 in conspiracy with the remaining accused took the conspiracy to its logical end. Learned Advocate pointed out that the notary was involved in this matter for the purpose of attestation of the will because the document prepared by the notary or attested by the notary has presumptive value under the law. Learned Advocate submitted that there is ample evidence, direct and circumstantial, to prima facie satisfy that accused No. 5 was part of the conspiracy. Learned Advocate therefore submitted that the learned CJM has missed the substance and wrongly invoked Section 13 of the Act of 1952, in this case. Learned Advocate submitted that in the facts and circumstances and in the teeth of the prima facie material collected ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 10 by the investigating officer, this Section 13 of the Act of 1952 cannot be invoked in such a case.
12 Learned Senior Advocate Shri Mardikar appearing for respondent No.2/accused No. 5 submitted that there is no iota of material to show that accused No. 5 at any time was part of the alleged conspiracy hatched by remaining accused. Learned Advocate submitted that there is material on record to show that the will deed was executed in the presence of accused No. 5 and therefore, she attested the execution, in exercise of her powers and functions under the Act of 1952. Learned Advocate submitted that the notary is required to exercise the powers and functions provided under Section 8 of the Act of 1952, day in and day out and therefore, the protection has been provided in the form of Section 13 of the Act of 1952 to the notary. Learned Senior Advocate submitted that the attestation of the execution of the will deed by accused No. 5 was a part of the functions of the notary as provided under Section 8 of the Act of 1952. Learned Advocate submitted that the act of notary, done in exercise or purported exercise of ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 11 his/her functions under the Act of 1952, has a protection under Section 13 of the Act of 1952. It is pointed out that against the notary the cognizance of the offence cannot be taken unless the complaint in writing is made by an officer authorized by the Central Government or State Government by general or special order in this behalf. Learned Senior Advocate submitted that in this case no such complaint in writing was made by the authorized officer of the Central Government, because accused No. 5 is a notary appointed by the Central Government. Learned Senior Advocate, therefore, submitted that the cognizance of the offence taken against accused No. 5 in the absence of the compliance of this requirement was bad in law and therefore, the learned Chief Judicial Magistrate was right in granting an application made by accused No. 5 for her discharge. Learned Senior Advocate submitted that in this case there was no need or necessity to obtain certificate of doctor as to the mental fitness or physical condition of the patient. Learned Senior Advocate further submitted that initially the name of the accused No. 5 was not stated in the FIR, but subsequently the same came to be added by the police. In order to substantiate his submissions the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 12 learned senior Advocate has placed reliance on following three decisions of the Co-ordinate benches of this Court.:
i. Devyani Govind Ambilwade .v/s. State of Maharashtra and ors., reported in, 2020 (2) Bom.C.R. (Cri.) 381 ii. Shri Bramhadev R. Dube .v/s. State of Maharashtra and Anr., reported in, 2015 ALL MR (Cri.)633 iii. Chandmal Motilal Bora .v/s. State of Maharashtra, reported in, 2004 (2) Mh.L.J. 41 13 Learned APP by answering her conscious and in her wisdom supported the order passed by the learned Chief Judicial Magistrate and ultimately the submissions advanced on behalf of accused No. 5.
14 In this case, question of seminal importance is involved. The accused is a notary public, discharging the functions under the Act of 1952. The investigation conducted in the crime revealed that the will deed was not executed or attested, as sought to be made out, when the deceased was admitted in the ICU of hospital and was on ventilator continuously. It is the case of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 13 informant that in order to deprive and divest her of her right in the property left by her husband all the accused in conspiracy forged the will deed and cheated her. In order to appreciate the law laid down in the decisions relied upon by the learned Senior Advocate for the accused No.5 as well as for the purpose of appreciation of submissions touching Section 13 of the Act of 1952 it would be necessary to crystallize the facts. The applicability of Section 13 of the Act of 1952 in such a case is required to be considered, in the backdrop of the facts, circumstances and the evidence brought on record. Undisputedly, the deceased was father-in-law of the informant. Husband of the informant died and therefore, she performed second marriage. According to the informant, after death of her husband attempt has been made by the accused persons, who are the relatives of her husband, to deprive and deny her share in the property which she was entitled being the widow. It is the case of the prosecution that the will deed was executed when the deceased was admitted in the hospital. He was in ICU ward.
He was on ventilator. He was admitted in the hospital due to paralytic attack on 10.01.2009. He was in unconscious condition ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 14 (coma). He died on 29.01.2009 in the said hospital in the same condition. The will deed which is the subject matter of dispute in this case according to the accused was executed by the deceased on 16.01.2009. It is to be noted that on 16.01.2009, the deceased was admitted in ICU ward of the hospital. He was on ventilator. The tubes were inserted in his throat. The informant alleged that the will deed was forged by all the accused. They did not go to the hospital. The deceased was not fully oriented and not in a position to execute the will deed.
15 As far as the accused No. 5 is concerned, specific role has been attributed to her. In the application, made for discharge the accused No. 5 is silent about the circumstances under which she attested the execution of the will deed of the deceased. Her application is silent about the facts related to the execution of a will deed when the deceased was admitted in the ICU of the hospital and was on ventilator. As per the case of the prosecution, the services of the accused No. 5 were availed by the remaining accused to give an authenticity to this document. It is seen on perusal of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 15 will deed of the deceased dated 16.01.2009 that it was not simply notarized by her. Perusal of the will deed would show that she attested the execution of the will deed by the deceased. It is to be noted at this stage that the deceased, according them, was not in a position to make the signature and therefore, his thumb impression was obtained. The accused No. 5 has attested the thumb impression of the executant, namely the deceased, put on every page of the will deed. The attestation is at five places. The last endorsement made by the accused No. 5 with regard to the attestation is very relevant. The last endorsement indicates that the will deed was explained to the deceased by accused No. 5 and he understood the same and thereafter, he put his thumb impression on the same. The notary has made a categorical endorsement that the deceased executant affixed the thumb impression before her. A case is sought to be made out that in this condition and in presence of accused No.5, the will deed was executed by the deceased in the hospital, where he was admitted in ICU ward and it was attested by accused No.5. It is also seen on perusal of the will deed that five persons including this accused No. 5 went to the ICU, explained the contents of will ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 16 deed to him and then he put his thumb impressions on the said will deed. In my view, the above stated facts need to be appreciated in juxtaposition with the material collected during the course of investigation by the investigating officer.
16 The investigation revealed that the execution and attestation of the will deed as sought to be made out did not take place on 16.01.2009 in the ICU ward of Dr Patankar Hospital. The investigating officer has recorded the statements of the witnesses from the hospital. Dr. Subhash Patankar is the owner of the Dr Patankar Hospital. In his statement, he has inter alia stated that on 16.01.2009 the patient was in a semi conscious condition. He was on ventilator. The oxygen was supplied with force with the help of ventilator. The tubes were inserted in the throat. Because of insertion of tubes the patient could not speak. In this condition, the injections are given to the patient. He has stated that in such a condition the patient does not remain in a conscious state of mind and cannot take firm decision on any subject. He has stated that the thumb impressions of the patient were not taken in his presence. ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 :::
wp.602.2022.judg.odt 17 17 Dr. Ravi Nagbhushan was attached to the said hospital and assigned duty in ICU ward on 16.01.2009 from 6 p.m. to 8 p.m. He has stated that the condition of the patient was serious. The patient was on ventilator. He was in unconscious condition. He has stated that on that day he did not grant permission to 3-4 persons to come inside the ICU. He has categorically stated that in his presence the will deed was not prepared. Same is the statement of Dr. Haider Ali, who was assigned duty in ICU ward on 16.01.2009. There are other witnesses namely the nurses and other attendants. Their statements would prima facie show that the patient was in a serious condition. He was unconscious. He was on ventilator. They have stated that on 16.01.2009, nobody obtained their permission for preparation of such a document. Their statement would clearly show that the patient was not in a position to speak as well as to understand anything.
18 The investigating officer, during the course of investigation collected/seized all the medical treatment papers of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 18 deceased from 10.01.2009 to 20.01.2009. It is seen on perusal of record that for the purpose of obtaining the opinion of the independent persons all the documents were forwarded to the District Civil Surgeon, Amravati with a request to constitute the committee of the experts and give an opinion as to whether a patient in such a condition can execute such a document. The expert committee has reported that patient was in unconscious condition. He was not responding to painful stimuli. It is stated that on 16.01.2009 the GC of the patient was low. He was on mechanical ventilator support and inotropic support. On the basis of the medical treatment papers they have given an opinion on 16.01.2009 and stated that the patient could not be mentally and physically fit to execute the will deed.
19 It is to be noted that the facts are very clear. The evidence has been collected during the course of investigation. It has been prima facie established that the patient was in unconscious condition. He was not in position to speak. He was not mentally and physically fit to understand anything. The medical officers from ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 19 the hospital have categorically stated that on 16.01.2009 nobody came with a request to allow them to meet the deceased for this purpose. Similarly, they have stated that execution of the will deed to their knowledge did not take place. The entry of such execution of will deed was not taken in their record. In my view, the above stated facts and evidence needs to be borne in mind while deciding the role of accused No. 5.
20 It is to be noted that accused No. 5 is practicing Advocate. The practicing Advocate if confronted with such a situation is expected to act carefully and consciously. It has not been categorically stated in discharge application by the accused No. 5 that she had gone to the hospital and the condition of the patient was serious and therefore, she took particular precaution. It is to be noted that in such a condition doctor would not have allowed so many people to enter the ICU ward. The ICU ward in any hospital is very secluded and sensitive place. In ICU, the serious patients are admitted. The entry in ICU ward is restricted. The condition of the patient was such that an Advocate, on being confronted with the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 20 same, at the first instance, would not have proceeded further with the execution of the will deed. Even if there were circumstances compelling the Advocate notary to proceed ahead then the Advocate would have first obtained the permission of doctor and the certificate of doctor that the patient is fully oriented to perform the act of execution of the will deed. It is not the case of the accused No. 5 in her application that all such precautions were taken by her. I am conscious of the fact that I am not dealing with this matter finally on merits. However, since Section 13 of the Act of 1952 has been invoked and discharge from the prosecution is sought on that ground, the narration of the facts and the summing up of the evidence available on record is found necessary and warranted. In the above backdrop, the applicability of Section 13 of the Act of 1952 and the proposition of law laid down in the relied decisions needs to be considered.
21 Section 13 of the Act of 1952 which is relevant for the purpose of addressing the issue is reproduced below: ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 :::
wp.602.2022.judg.odt 21 "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."
22 Section 13 of the Act of 1952 provides a protection to the notary in case of an offence committed by a notary in exercise or purported exercise of his functions under the act. The functions of the notary have been set out in Section 8 of the Act of 1952. In this case, I am concerned with the function of the notary with regard to the act of attestation of the execution of the will deed by the patient/deceased. In this context, it would be necessary to see what is mean by attestation of endorsement. The definition of the 'attestation' or 'attested' has not been provided in the Act of 1952. Similarly, the definition has also not been provided in the General Clauses Act, 1897. The definition of 'attested' has been provided in Section 3 of the Transfer of Property Act, 1882. It is extracted below:
::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 :::
wp.602.2022.judg.odt 22 "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
Similarly, the meaning of the word 'attest' needs to be considered as provided in Black's Law Dictionary, 8 th edition authored by Bryan A. Garner. The same is extracted below:
"Attest : To bear witness; testify <attest to the defendant's innocence>. 2. To affirm to be true or genuine; to authenticate by signing as a witness <attest the will>"
The above definitions have been reproduced to understand as to how the attestation of document has to take place. If the attestation does not take place in the manner provided in this ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 23 definition then it could not be said to be attestation to the execution of the document. In this case, the accused No. 5/notary has attested the execution of document being a notary.
23 As per Section 13 of the Act of 1952 the Court is debarred from taking cognizance of any offence committed by notary in the exercise or purported exercise of his functions under this Act except 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. This provision has been incorporated to protect the notary from unnecessary prosecution while discharging functions as a notary. This protection in my view can be made use of as a shield from the prosecution where the act committed by notary, is under the Act of 1952. The question is whether the act of forgery of document and cheating would fall within the ambit of the exercise or purported exercise of the functions of the notary under the Act of 1952. It is to be noted that the attestation of execution of document in the absence of the executant and in process of conspiracy, to prepare a forged will deed ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 24 would not fall within the functions of the notary under Section 8 of the Act of 1952. The provisions of Section 13 of the Act of 1952 is animated by public policy. The document notarized by the notary has a presumptive value. In the absence of protective cover provided under Section 13 of the Act of 1952 the notary would be made to face number of criminal cases. A notary may not be personally aware of every person coming to him. The notary will not with certainty know the truth of the document. In this case the question involved is somewhat different and has to be addressed in the backdrop of the facts noted above. The question in the fact situation is as to whether the notary would be entitled to get a protection of Section 13 of the Act of 1952 in case of an act which constitute an offence of conspiracy with others. In my view, in order to find an answer to this question it would be necessary to understand expression "under this Act" finding place in Section 13 of the Act of 1952. In my view, this expression if understood properly would make it clear that if the notary discharges his functions under the Act, namely Section 8, then only Section 13(1) of the Act would come into play & to rescue the notary. ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 :::
wp.602.2022.judg.odt 25 24 The Madras High Court in the case of Ganapathyvaratha Subramanian .v/s. The State represented by Inspector of Police and Another, decided on 09.03.2020 (Crl OP (MD) No. 2669 of 2020) has considered the somewhat similar situation. The Madras High Court has considered the decision in the case of Chandmal Boar (supra) of the Co-ordinate Bench of this Court. The para No. 8 of the decision would be relevant. It is extracted below:
"8. 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 authorized 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 office punishable under this Act.
The aforesaid provision is animated by a public policy. Notarised documents have a presumptive value attached to them. One may profitably go through the erudite decision of the Hon'ble Mr.Justice P.B.Mukharji reported in AIR 1967 Cal 636 (In Re : K.K.Ray Private Limited) to understand ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 26 the historical origin and significance of the institution of notary. If there is no protective provision like Section 13 of the Notaries Act, a Notary could be implicated in any number of cases. A Notary will not be personally aware of each and every person who comes to him. He will certainly not know the truth underlying the documents.
Therefore, I cannot have any quarrel with the proposition laid down in the decisions relied on by the petitioner's counsel. But the issue that calls for resolution in this case is a little different and more nuanced. Section 8 of the Notaries Act sets out the functions of a Notary. The question is whether even a reckless or malafide discharge of notarial functions would still attract the protective shield of Section 13 of the Act. In my view, the key lies in a proper understanding of the expression "under this Act"
occurring in the said provision. In other words, only if the notarial function has been discharged under the Act, Section 13(1) of the Act will kick in and not otherwise."
25 In the case of Ganapathyvaratha (supra) it has been categorically held that 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. It is held that only when the notary has exercised or purported to ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 27 exercise his functions under the Notaries Act, 1952 he can hide behind Section 13 of the Act.
26 There is one more decision of the Co-ordinate Bench of this Court in the case of Prataprai Trumbaklal Mehta .v/s. Jayant Nemchand Shah and another, reported in, AIR 1992 Bombay 149 wherein it is observed that it is responsibility of notary to satisfy himself that the original documents intended to be executed before him was executed by person concerned and not by someone else in the name of different person i.e. about the identity of the executant of the original document by making all reasonable inquiries including insistence of identification of a member of the public by a legal practitioner known to the notary. Unless the executant is known to the notary personally, the notary must insist on written identification of the executant by an Advocate and take signature of both of them in token thereof in the notary register in order to minimize the possibility of cheating by personification. It is therefore seen that the protection available under Section 13 of the Act of 1952 is in respect of exercise or purported exercise of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 28 functions of the notary under the Act of 1952 and not otherwise. It is to be noted that the act of forgery and cheating or commission of any other offence by a notary would not fall within the functions as provided under Section 8 of the Act of 1952.
27 Before proceeding to deal with the decisions relied upon by the learned Senior Advocate it would be necessary to draw an analogy from the provision of Section 197 of the Cr.P.C. The object of Section 197 of the Cr.P.C. is similar to the object of Section 13 of the Act of 1952. The Hon'ble Apex Court in the case of Chandan Kumar Basu .v/s. State of Bihar, in Criminal Appeal No. 1359 of 2014, decided on 07.07.2014, has considered the applicability of Section 197 of the Cr.P.C. The relevant observations can be found in para No. 9. The para No. 9 is profitably extracted below:
"9. The above discussion will now require the Court to consider the question as to whether the acts giving rise to the alleged offences had been committed by the accused in the actual or purported discharge of his official duties. In a series of pronouncements commencing with Satwant Singh vs. State of Punjab[2]; Harihar Prasad vs. State of Bihar[3] and Prakash Singh Badal & Anr. vs. State ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 29 of Punjab & Ors.[4] it has been consistently held that it can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Section 406, 409, 420 etc. and the official status of the public servant can, at best, only provide an opportunity for commission of the offences. Therefore, no sanction for prosecution of the public servant for such offences would be required under Section 197 of the Code. Notwithstanding the above, the High Court had granted liberty to the appellant to raise the issue of sanction, if so required, depending on the evidence that may come on record in the course of the trial. Despite the view taken by this Court in the series of pronouncements referred to above, the opportunity that has been provided by the High Court to the benefit of the appellant need not be foreclosed by us inasmuch as in Matajog Dobey vs. H.C. Bhari [5], P.K. Pradhan vs. State of Sikkim[6] and Prakash Singh Badal (supra) this Court had consistently held that the question of sanction under Section 197 of the Code can be raised at any time after cognizance had been taken and may have to be determined at different stages of the proceeding/trial. The observations of this Court in this regard may be usefully extracted below.
Matajog Dobey vs. H.C. Bhari (para 21) "The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 30 necessity may reveal itself in the course of the progress of the case." P.K. Pradhan vs. State of Sikkim (para 15) "It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27] "The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. ..."
28 In this case, the Hon'ble Apex Court has held that the commission of an offence covered by Section 406, 409, 420 etc. cannot be held to be part of the duty of the public servant or acting in discharge of his official duties. It is held that in such a situation ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 31 sanction for prosecution is not necessary. In my view, this analogy has to be applied to the case on hand. If it is so applied then it will have to be held that the offence allegedly committed in the case by the notary could not by any stretch of imagination be said to be part of functions provided under Section 8 of the Act of 1952. 29 In this case, there is prima facie material on record that the will deed was not executed, as sought to be made out, in the ICU ward of the hospital. The material on record indicates that the accused persons did not go to the ICU ward and meet the doctors for the purpose of execution of the will deed. The deceased was on the ventilator and literally on the last step of the departure lounge of the God. He was unconscious. It is the case of the prosecution that this will deed was prepared, pursuant to the conspiracy, outside the hospital and it was attested by accused No. 5 to attach the authenticity to the same. It is the case of the prosecution that the will deed was prepared pursuant to the conspiracy hatched by the accused. It needs to be stated that in the case of offence of conspiracy it is generally very difficult to get the direct evidence. It ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 32 is said that the utmost secrecy is the hallmark of the offence of conspiracy. In the given facts and circumstances the Court can draw the inference as to the conspiracy on the basis of proved and undisputed facts and circumstances. In this case, the material is prima facie sufficient to conclude that the will deed was not executed by the deceased when he was admitted in the hospital. This would mean that the will deed was prepared outside the hospital, as well as attested by accused No. 5 outside the hospital. The role attributed to accused No. 5 has been spelt out from the evidence. In my view, therefore, the decision relied upon by the learned Senior Advocate to support his submission on facts are distinguishable.
30 In the case of Devyani (supra) the affidavit was prepared before the notary without verifying the identity of the deponent. The only role attributed to the notary was that the document was notarized by him. In the fact situation, the Co- ordinate Bench held that the protection under Section 13 of the Act of 1952 would be available to the notary in the said case. In the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 33 case of Bramhadev (supra), the affidavit was notarized by the notary on identification of the Advocate who was an accused No.3 in the said case. On the basis of said affidavit the power of attorney was executed before the notary. The Co-ordinate Bench found that the act was not an offence but only a negligence on the part of the notary. In this case, it is also held that if the act of notary is totally extraneous to his duties, the protection under Section 13 would not be available to him.
31 In the case of Chandmal Bora (Supra) the notary was roped in the criminal case by invoking Section 120-B of the IPC. The notary had notarized the affidavit of the informant. It was held that this act was within the purview of the functions of the notary as provided under Section 8 of the Act of 1952. In this case the Co- ordinate Bench, particularly in para 10, has categorically observed that if the allegations made against notary show that the act done by the notary is not in accordance with the provisions of Notaries act, then there is no protection available to the notary as provided under Section 13 of the Act of 1952.
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wp.602.2022.judg.odt 34 32 In my view, the facts of the case on hand and the facts of the decisions relied upon by the learned Senior Advocate are clearly distinguishable. The decisions, in my view, therefore, are not applicable to the case of the accused at this stage. On the basis of the proposition of law laid down in those decisions the accused No. 5 is not entitled to invoke the protection provided under Section 13 of the Act of 1952. The prosecution has come before the Court with the case that the will deed was forged pursuant to the conspiracy hatched by the accused. The object of the execution of the will deed was to deprive the informant of her right in the property. The accused took the conspiracy to logical end by bringing into existence the will deed. The accused No. 5, as can be seen from the prima facie material on record, became part of the conspiracy. The act of attestation of will deed by accused No. 5, as stated above, would indicate that accused No. 5 shared the object of the conspiracy. The notary became the part of the conspiracy to provide authenticity to the will deed. The material on record is sufficient to attribute the intention and object to accused No. 5 in the commission of crime. The notary, as can be seen, succumbed to ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 35 the wishes of the remaining accused and became a part of the conspiracy. It is to be noted that the act of attestation of execution of the will deed, in the manner stated above, by accused No. 5 was a master stroke to take the conspiracy to logical conclusion. In my view, in the backdrop of the above stated stark facts and evidence, accused No. 5 was not entitled for discharge. Learned CJM has failed to consider the above position. Therefore, the order passed by the learned CJM cannot be sustained.
33 Before parting with the matter it would be necessary to take care of certain important aspects with regard to the issuance of general or special order, by the Central Government or State Government, of authorizing officer for the purpose of making a complaint in writing. In this case, the report was directly lodged by the informant to the police. The police conducted the investigation and filed the charge-sheet. The police knew that the accused No. 5 is a notary. In order to satisfy myself about any such order issued by the Central Government or by a State Government authorizing any officer, learned APP appearing for the State and the learned Deputy ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 36 Solicitor General of India were requested to clarify this position and place on record the affidavit as well as general or special order issued in this behalf for the purpose of Section 13 of the Act of 1952. One Smt. Manisha Anil Kadam, Assistant Solicitor cum Deputy Secretary, Law and Judiciary Department, Mantralaya, Mumbai has filed the affidavit. In the affidavit, she has categorically stated that the Government of Maharashtra in the Law and Judiciary Department has not issued any general or special order under Section 13 of the Act of 1952. She has stated that on 20.05.2006 the Law and Judiciary Department had issued a special order authorizing an officer under Section 13 of the Act of 1952 to file complaint against notary Smt Meena Arun Navalkar. The copy of the notification dt. 20.05.2006, would show that it was issued for the purpose of action against a particular notary. It is seen that after this no order was issued by the Government of Maharashtra in the Law and Judiciary Department.
34 As far as the Central Government is concerned the affidavit was filed by Shri A. A. Ansari, Senior Government ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 37 Advocate and incharge, Government of India, Ministry of Law and Justice, Department of Legal Affairs, Branch Secretariat, 2 nd Floor, Aaykar Bhavan, New Marine Lines, Mumbai. Perusal of this affidavit would show that no general or special order has been issued by the Central Government as required by Section 13 of the Act of 1952. In the affidavit, reference has been made to one order issued under Rule 4 of the Notaries Rules, 1956. Rule 4 provides for the appointment of notary. It has nothing to do with the subject covered under Section 13 of the Act of 1952.
35 It is to be noted that the general or special order required as per Section 13 of the Act of 1952 has to be issued by invoking Section 13 of the Act of 1952 only. The rules framed under the Act do not provide for issuance of such general or special order. It is also seen that no complete mechanism has been provided in the Notaries Rules of 1956 in this regard. It needs to be stated that whenever the complaint of commission of serious offence by notary is made at the police station, in the absence of any mechanism to deal with the same, on account of mis-interpretation ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 38 or misconception of the provisions of law, the offender can go scot- free. The incharge of the police station may not be aware of the provision of Section 13 of the Act of 1952. The mandate under Section 13 of the Act of 1952 is to the Central Government or State Government and therefore, such order must be issued by the Government. In my view, it must be a standing order. It is further necessary to state that as and when such a standing order is issued it must be made known to the police department for taking appropriate action to meet the requirements of Section 13 of the Act of 1952. As stated above, generally report is lodged with the police station. The victim or the informant is not supposed to know this nitty-gritty of the law. On consideration of the provisions of Section 13 of the Act of 1952, it appears that the issuance of general or special standing order is ministerial work. In the facts and circumstances, it would be necessary for the future purpose to issue direction to the Secretary, Law and Judiciary, Government of Maharashtra, Mantralaya, Mumbai to take urgent steps to issue a general or special order as provided under Section 13 of the Act of 1952.
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wp.602.2022.judg.odt 39 36 Accordingly, the Secretary, Law and Judiciary, Government of Maharashtra, Mantralaya, Mumbai is directed to take urgent steps to issue a general or special order as provided under Section 13 of the Act of 1952.
37 The Secretary to the Law and Judiciary Department of Government of Maharashtra, after issuance of general or special order, shall communicate the same to the Director General of Police, State of Maharashtra. The Director General of Police, State of Maharashtra in turn shall communicate the said order received from the Government to all the officers up to the level of police station, for compliance.
38 As far as Central Government is concerned, since the notaries appointed by the Central Government are functioning in State of Maharashtra, the Senior Government Advocate and incharge, Government of India, Ministry of Law and Justice, Department of Legal Affairs, Branch Secretariat, 2nd Floor, Aaykar Bhavan, New Marine Lines, Mumbai shall see that the order in ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 ::: wp.602.2022.judg.odt 40 terms of Section 13 is issued by the competent officers of the Ministry of Law and Justice, Government of India. The remaining compliance must be as set out in para 37.
39 In view of the above, the writ petition is allowed. 40 The order dated 13.10.2020 passed by the learned Chief Judicial Magistrate, Amravati, is hereby quashed and set aside. The application Exh. 45 for discharge of the accused No.5/ respondent No.2 is hereby rejected.
41 It is made clear that the observations made in this judgment are for the purpose of deciding this petition and therefore, the trial Court, at the time of deciding the case on merits, shall not get influenced by the same, in any manner.
42 The writ petition stands disposed of. Rule made absolute in the above terms.
(G. A. SANAP, J.) Namrata ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:22 :::