IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 575 of 2012 With SPECIAL CRIMINAL APPLICATION NO. 1410 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/ =====================================================
=================================================== AMRUTBHAI SHAMBHUBHAI PATEL Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ===================================================== Appearance:
IN SPECIAL CRI. APPLICATION NO.575/2012 MR MIHIR H JOSHI, SR. COUNSEL, with MR TATTVAM K PATEL, ADVOCATE for the Petitioner MS MOKSHA THAKKER, APP for Respondent(s) No.1 MR PRAVIN GONDALIYA, ADVOCATE for Respondent No.2 IN SPECIAL CRI. APPLICATION NO.1410/2012 MS MOKSHA THAKKER, APP for the Petitioner MR PRAVIN GONDALIYA, ADVOCATE for the Respondent No.1 MR MIHIR H JOSHI, SR. COUNSEL, with MR TATTVAM K PATEL, ADVOCATE for Respondent No.2 ===================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 20/12/2012 CAV (COMMON) JUDGEMENT
(1) Since the judgment in challenge as well as the facts of the case are common, both petitions were heard together and are being disposed of by this common judgment.
(2) For convenience, the parties are being referred to in this judgment with reference to their original status.
(3) By way of the present petitions, the original complainant and the State of Gujarat respectively have challenged the judgment and order dated 21.02.2012 passed by Sessions Judge, Gandhinagar in Criminal Revision Application No.3 of 2012 filed by the original accused No.5Shri Govindbhai Laghdhirbhai Patel whereby, while allowing the said revision, quashed and set aside order dated 19.01.2012 passed by Chief Judicial Magistrate, Gandhinagar below application Exh.11 in Criminal Case No.4293 of 2011, and discharged the original accused No.5 pursuant to F.I.R. being C.R. No.I70 of 2010 registered at Adalaj Police Station for the offences punishable under Sections 406, 419, 420, 426, 467, 468, 471, 477B and 120B of the Indian Penal Code, 1860.
(4) As the facts of both petitions are common, the facts stated in Special Criminal Application No.575 of 2012 are made basis of this judgment, which are enumerated as under:
4.1) It is the case of the original complainant (i.e. petitioner in Special Criminal Application No.575 of 2012) that he is the owner of land bearing Revenue Survey Nos.505 paiki, 559 paiki, and 546 paiki of Village Khoraj, admeasuring about 20,776 sq.mtrs. (for short ‘the land in question’), situated near Vaishno Devi temple. That a conspiracy has been hatched by the original accused whereby the original accused No.1 approached the original complainant and his family members and made a proposal to purchase the land in question @ Rs.20,851/sq. yard i.e. for total consideration, according to the original complainant, of Rs.52,82,07,123/.
4.2) It is the case of the original complainant that accomplices of the original accused No.1 asked the original complainant and his family members to give their signatures in the authority letter for entitling their solicitor to publish a title clearance public notice in a daily newspaper and thus, obtained signatures of the original complainant and his family members on 23.01.2010. That other persons, who were accomplices of the original accused No.1, also informed the original complainant that the document giving authority to publish title clearance notice will have to be notarized and hence, they have obtained signatures of the original complainant and his family members in the book of Notary.
4.3) It is further the case of the original complainant that in the column of “description of document” words “for title clearance certificate” were mentioned, which were later on forged by the original accused No.5 along with his accomplices by removing those words with blade like substance and replaced them by words “power of attorney” and thereby one Shri Pushpendrasinh Vaghela was shown as Power of Attorney Holder and such a forged and fraudulent Power of Attorney deed was dated 22.01.2010. It is further averred in the petition that by using the said Power of Attorney Shri Pushpendrasinh Vaghela executed collusive registered sale deeds dated 22.01.2010 bearing registration Nos.3104 and 3106 for the land in question in favour of another accused i.e. Shri Sumanbhai Kantilal Patel for total consideration of Rs.33 lacs.
4.4) That on coming to know about the said fact, the original complainant immediately lodged an F.I.R. being C.R. No.I70 of 2010 on 26.03.2010 before Adalaj Police Station. That pursuant to the said complaint, investigation was handed over to Local Crime BranchII, Gandhinagar. It is further averred in the petition that after filing of the complaint the land came to be transferred in favour of one Shri Veljibhai Mavjibhai Mistry, who is also accomplice of the original accused, for total consideration of Rs.36 lacs.
4.5) It is also averred in the petition that after the complaint was filed one of the accused applied for bail before the Sessions Court, which came to be rejected, however, ultimately, this Court granted bail to the said accused. It is further averred that the original complainant approached the Apex Court for cancellation of the aforesaid bail granted by this Court wherein the trial Court was directed to conduct the trial of the case on daytoday basis.
4.6) That after investigation, chargesheet came to be filed on 26.03.2011 and on the chargesheet being filed the original accused No.5 moved an application below Exh.11 in Criminal Case No.4293 of 2011 for discharge before the Court of Chief Judicial Magistrate, Gandhinagar, wherein it was contended that there was no compliance of the provisions of Section 13 of the Notaries Act, 1952 (the Act) in the present case and reliance was also placed upon the judgment of this Court in the case Ashokbhai Rameshchandra Ghantivala Vs. State of Gujarat & Anr., 2009 (2) G.L.H. 491. The trial Court, after hearing the parties, by order dated 19.01.2012 rejected the said application below Exh.11 moved by the original accused No.5 for discharge.
4.7) That against the aforesaid order, original accused No.5 preferred Criminal Revision Application No.3 of 2012 before Sessions Court, Gandhinagar, which came to be allowed vide judgment and order dated 21.02.2012 by quashing and setting aside order dated 19.01.2012 passed by Chief Judicial Magistrate, Gandhinagar below application Exh.11 in Criminal Case No.4293 of 2011, and thereby discharged the original accused No.5.
(5) As noted hereinabove, the original complainant has filed Special Criminal Application No.575 of 2012, whereas the State has filed Special Criminal Application No.1410 of 2012 challenging the aforesaid impugned order.
(6) Heard Mr.Mihir H. Joshi, learned Senior counsel with Mr.Tattvam K. Patel for the original complainant, Ms.Moksha Thakker, learned Assistant Public Prosecutor for the State and Mr.Pravin Gondaliya, learned advocate appearing for the original accused No.5.
(7) Mr.Mihir H. Joshi, learned Senior counsel for the original complainant, has taken this Court to the factual matrix arising out of the present proceedings and has submitted that a private complaint was filed by the complainant before the competent police station, which came to be numbered as C.R. No.I70 of 2010 before Adalaj Police Station on 26.03.2010. It was further submitted that the trial Court has properly appreciated the facts and circumstances arising out of the case and has rightly come to the conclusion that there is ample evidence against the original accused No.5 in the said criminal case and has rightly interpreted provisions of Section 13 of the Act.
7.1) It was further submitted that Section 13 of the Act only restricts the act of cognizance being taken by the court on a complaint against a notary, however, that does not mean that the police does not have right to investigate the complaint, which is filed. It was further submitted that the complaint was filed on 26.03.2010 and thereafter investigation was carried out by the investigating agency. Relying upon a document at Page 170 of the paper book it was submitted that by 24.09.2010 the State of Gujarat accorded sanction to prosecute original accused No.5 under Section 13 of the Act.
7.2) It was further submitted that the chargesheet came to be filed by the investigating officer on 26.03.2011 and, therefore, when cognizance was taken by the court sanction, which was necessary under Section 13 of the Act, was already granted by the competent authority viz. the State Government. Further relying upon the judgment of this Court in the case of Vishal Rameshbhai Khurana & Anr. Vs. State of Gujarat & Anr., 2010 (3) G.C.D. 2160 it was contended that provisions of Section 13 of the Act would have application only when the cognizance is taken by the Court and not while registering a complaint or during course of investigation carried out by the police authorities.
7.3) It was further submitted that as per definition of word “complaint” provided under Section 2(d) of the Code of Criminal Procedure, 1973 (the Code) even report submitted to the court for taking cognizance would mean and would be covered under the definition of word “complaint”. It was further submitted that as authorization was accorded on 24.09.2010 and the chargesheet came to be filed by the investigating agency on 26.03.2011 requirements of Section 13 of the Act are duly complied with in the present case. It was therefore submitted that the Sessions Court has committed error apparent on the face of record by not considering the factual aspect arising out of the case. It was further submitted that the discharge application filed by original accused No.5 contains only one ground that there was no compliance of Section 13 of the Act. It was further submitted that the ratio laid down by this Court in the case of Ashokbhai Rameshchandra Ghantivala (supra) would not be applicable to the facts of the present case. It was therefore submitted that the Sessions Court has committed a grave error in coming to the conclusion that there was no compliance of Section 13 of the Act and the complaint came to be filed when there was no authorization granted by the State Government as provided under Section 13 of the Act. It was also submitted that Sessions Court has overlooked the fact that what is provided under Section 13 of the Act is taking of cognizance, whereas the Sessions Court has considered the date of filing of the complaint, which is apparent error of law and, therefore, the petition (Special Criminal Application No.575 of 2012) deserves to be allowed and the impugned order dated 21.02.2012 passed by Sessions Judge, Gandhinagar in Criminal Revision Application No.3 of 2012 deserves to be quashed and set aside and the order dated 19.01.2012 passed by Chief Judicial Magistrate, Gandhinagar below application Exh.11 in Criminal Case No.4293 of 2011 deserves to be confirmed.
7.4) Attention was also invited to the fact that even the FSL report indicates that there is interpolation in the document in question i.e. the alleged Power of Attorney and even there is overwriting on the said document in question and even the date of notarization of the document in question is also wrongly mentioned. It was therefore submitted to allow the petition (Special Criminal Application No.575 of 2012).
(8) Ms.Moksha Thakkar, learned Assistant Public Prosecutor appearing for the State, has reiterated the contentions raised by the petitioneroriginal complainant in Special Criminal Application No.575 of 2012. Relying upon the order passed by the trial Court it was submitted that there is sufficient compliance of the provisions of Section 13 of the Act and sanction was duly granted by the competent authority of the State Government way back on 24.09.2010 and the chargesheet was filed on 26.03.2011 and thereafter the court has taken cognizance of the same.
(9) Per contra Mr.Pravin Gondaliya, learned advocate appearing for original accused No.5, has supported the impugned order and has submitted that authorization was granted on 24.09.2010, however, the complaint came to be registered on 26.03.2010 and, therefore, on the date on which the complaint was filed, there was no compliance of provisions of Section 13 of the Act. It was submitted that Section 2(d) of the Code, more particularly its explanation would apply only to the noncognizable offences and it was submitted that the Sessions Court has rightly interpreted the provisions of Section 13 of the Act and has rightly come to the conclusion that there was no sufficient compliance and the cognizance was taken by the court. It may however be important to note that the learned advocate has submitted that taking of cognizance would only be when the chargesheet is submitted before the court of law.
No other / further submissions are made by the learned advocates for the parties.
(10) Before reverting to the submissions made by the learned counsel for the parties, it requires to be noted that the complaint came to be filed by the original complainantAmrutbhai Shambhubhai Patel on 26.03.2010 against Shri Pushpendrasinh @ Paresh Ambuji Vaghela and others wherein Shri Govindbhai Laghdhirbhai Patel (respondent No.2 of Special Criminal Application No.575 of 2012) is shown as original accused No.5. It further appears from the record that on the basis of the private complaint an F.I.R. came to be lodged, which is registered being C.R. No.I70 of 2010 at Adalaj Police Station for the offences punishable under Sections 406, 419, 420, 426, 467, 468, 471, 477B and 120B of the Indian Penal Code, 1860 and thereafter investigation has been carried out by the investigating agency. It further appears that the State Government, in exercise of powers under Section 13 of the Act, passed an order authorizing Police Inspector, Local Crime Branch Police Station, Gandhinagar on 24.09.2010 to prosecute original accused No.5 under Section 13 of the Act, which, inter alia, reads as under (Mark 17/2):
“GOVERNMENT OF GUJARAT NTR102010330A Legal Department, 4, Sardar Bhavan, Sachivalaya, Gandhinagar ORDER Dated: 24 SEP 2010 In exercise of the powers conferred by Section 13 of the Notaries Act, 1952, the State Government hereby authorises the Police Inspector, L.C.B. Police Station, Gandhinagar for the purpose of filing a complaint before the Competent Court of Law against Shri Govindbhai L. Patel, Notary of the Taluka Gandhinagar for having allegedly helped in making of a false document i.e. Power of Attorney as also tampering with the notary register by erasing and overwriting the matter of entries Nos.180 and 181 as stated in letter dated 24/05/2010 of the District Superintendent of Police, Gandhinagar addressed to the Legal Department, Sachivalaya, Gandhinagar.
By order and in the name of Governor of Gujarat. (C.J. Gothi) Competent Authority and Joint Secretary Legal Department”
(11) It is further pertinent to note that thereafter chargesheet came to be filed on 26.03.2011 and Criminal Case No.4293 of 2011 came to be registered wherein Shri Govindbhai Laghdhirbhai Patel (respondent No.2 of Special Criminal Application No.575 of 2012) is shown as accused No.5 and as the summons was issued, the said accused No.5 filed an application below Exh.11.
(12) Section 13 of the Act, which is relevant for the present petition, 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.”
(13) This Court (Coram: H.N.Devani, J) while dealing with application under Section 482 of the Code has considered scope and ambit of the Notaries Act in the case of Ashokbhai Rameshchandra Ghantivala (supra) wherein it has been held (in Paragraph No.8) as under:
“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:
“xxx xxx xxx”
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 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.”
(14) It is also note worthy that this Court (Coram: M.R.Shah, J) in the case of Mohammed Yusuf Kasam Kalavat Vs. State of Gujarat, 2012 JX (Guj.) 196 (in Criminal Misc. Application No.1934 of 2011) has also considered provisions of Section 13 of the Act and has held thus (in Paragraph Nos.[5.0] and [5.1]) :
[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 I.O. Section 13 of the Notaries Act, 1952 reads as under:
“xxx xxx”
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.O. While considering somewhat similar provision of bar of taking cognizance as provided under Section 195 of the CrPC, the 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 into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in Court. In other words, 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 chargesheet (challan), 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. P. C. The judgment of this Court in Gopalakrishna 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 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.”
(15) As narrated above, in the present case, the complaint came to be lodged on 26.03.2010 and the State Government has authorized Police Inspector, Local Crime Branch Police Station, Gandhinagar to file a complaint before the competent court of law against Shri Govindbhai Laghdhirbhai Patel (respondent No.2 of Special Criminal Application No.575 of 2012), who is shown as accused No.5, however, it appears from the record that thereafter no complaint has been filed by the authorized person viz. Police Inspector, Local Crime Branch Police Station, Gandhinagar but has straightway filed charge sheet in connection with the complaint filed by the original complainant.
(16) Ms.Moksha Thakkar, learned A.P.P. for the State, as well as Mr.Joshi, learned Senior counsel for the original complainant, have not been able to point out that any complaint has been filed after the aforesaid authorization. It is no doubt true that it was contended on behalf of the original complainant that a report and/or a chargesheet submitted would be included in the definition of word “complaint” as provided under Section 2(d) of the Code.
(17) It may however note worthy that after authorization was granted no complaint is filed by an officer so authorized under Section 13 of the Act by the State Government. The contention put forward by the learned senior counsel for the original complainant that filing of report i.e. chargesheet would be included in the definition of word “complaint” under Section 2(d) of the Code is incorrect. At this stage it would be appropriate to refer to the judgment of the Apex Court in the case of Keshav Lal Thakur Vs. State of Bihar, 1996 (11) S.C.C. 557 wherein in Paragraph No.3 it has been observed thus:
"3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is noncognizable and therefore the police could not have registered a case for such an offence under Section 154 Criminal Procedure Code. Of course, the police is entitled to investigate into a noncognizable offence pursuant to an order of a competent Magistrate under Section 155(2) Criminal Procedure Code but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the Explanation to Section 2(d) Criminal Procedure Code, which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a noncognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence unlike the present one but ultimately finds that only a noncognizable offence has been made out."
In the instant case therefore filing of charge sheet on the basis of earlier complaint filed by the original complainant on the basis of which investigation has been undertaken cannot be termed as “complaint” as envisaged under Section 2(d) of the Code as it relating to cognizance offence.
(18) It may be noted that even in the case of Vishal Rameshbhai Khurana & Anr. (supra) this Court in Paragraph Nos.1415 has observed as under:
“14. I am, therefore, of the opinion that section 22 of the Act does not debar registration of FIR by the police on information being given with respect to offences under the said Act or the Rules made thereunder.
15. The question, however, is upon completion of the investigation by the police, can the Magistrate take cognizance of the offence on a police report ? This question would require the interpretation of section 22 of the Act. This provision prevents the Magistrate from taking cognizance of the offence except upon a complaint in writing by an authorized officer. The term “complaint” is not defined under the Act. Section 2(d) of the Code defines 'complaint' as follows: “(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include a police report.
Explanation : A report made by a police officer in a case which discloses, after investigation, the commission of a noncognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complaint;”
It can thus be seen that term 'complaint' does not include a police report. In view of the provisions contained in section 22 of the Act, therefore, it is not open for a Magistrate to take cognizance of an offence punishable under the said Act or the Rules made thereunder on a police report. Mere filing of chargesheet before the Magistrate would not authorize him to take cognizance of the offence. Learned APPs, however, submitted that an investigation which has been undertaken by the Police must culminate into filing of a final report under section 173 of the Code. It was, therefore, contended that upon such report, the Magistrate would under section 190 of the Code be empowered to take cognizance of an offence. I am unable to accept this contention. Section 190 of the Code empowers the Magistrate to take cognizance of any offence upon any of the following three contingencies (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received form any person other than a police officer, or upon his own knowledge , that such offence has been committed. However, by virtue of section 22 of the Act, the Magistrate is precluded from taking cognizance of any offence under the Act or the Rules made thereunder except upon a complaint in writing made by a person authorized in this behalf by the Central or the State Government. The said Act being a special law dealing with the development and regulation of mines and minerals under the control of the Union, such special provisions contained in section 22 of the Act would prevail over the provisions contained in section 190 of the Code. Thus, the second and the third eventualities upon which a Magistrate under section 190 of the Code could take cognizance of offence, namely, upon police report or upon information received from any person other than a police officer or upon his own knowledge would not be available to the Magistrate for taking cognizance of the offence under the Act. Even with respect to power of the Magistrate to take cognizance of an offence upon receiving a complaint of facts, a further rider is added that such complaint should be filed only by a person authorized in this behalf by the Central or the State Government.
If as suggested by the learned APPs it is held that the Magistrate even on a police report can take cognizance of an offence under the Act or the Rules made thereunder, the provisions of section 22 of the Act would be rendered redundant and the entire purpose of introduction of such a requirement would be rendered ineffective.”
In the instant case the allegations which are leveled against original accused No.5 indicate that original accused No.5 has acted and/or function as a notary under the Act. It is no doubt true that in view of the ratio laid down by this Court in the cases of Mohammed Yusuf Kasam Kalavat (supra) and Vishal Khurana (supra) the F.I.R. could be launched against the original accused No.5 and the investigation can be made. However, the authorized person, which in the instant case as per the authorization dated 24.09.2010, has to file a complaint as envisaged under Section 13 of the Act.
(19) It appears from the order passed by the trial Court that the application filed by original opponent No.5 to discharge him from Criminal Case No.4293 of 2011 was on the sole ground that the procedure as envisaged under Section 13 of the Act has not fully been complied with and the trial Court relying upon the ratio laid down Supreme Court of India in the case of Bholu Ram Vs. State of Punjab & Anr. (2008) 9 S.C.C. 140 has rejected the said application. The trial Court has also recorded finding of fact that authorization under Section 13 of the Act was given after filing of the complaint, however, the trial Court has not considered whether the authorized person has filed complaint or not. Ratio laid down by the Apex Court in the case of Bholu Ram (supra) with respect would not apply to the facts of the present case. While considering aspect of sanction as envisaged under Section 197 of the Code the Apex Court has observed thus (in Paragraph No.61):
“61. The Revisional Court was aware of legal position. It was, however, held by the Court that at the most there was negligence on the part of respondent No. 2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at the time of trial and not at the stage of issuing summons. Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves to be set aside even on that ground.”
(20) It can be seen from the aforesaid discussion that what is envisaged under Section 13 of the Act is the authorization. As can be culled out from authorization dated 24.09.2010 the State Government, in exercise of powers under Section 13 of the Act, has authorized Police Inspector, L.C.B. Police Station, Gandhinagar to file a complaint, however, as noted hereinabove, the said authorized person has not filed any complaint against the respondent No.2 (original accused No.5), after such authorization but has straightway filed the chargesheet, after investigating the complaint, which was filed by the original complainant, which later on came to be registered as an F.I.R. Such complaint was not filed by the authorized officer and hence, the same cannot be considered as sufficient and proper compliance of Section 13 of the Act as held by this Court in the case of Ashokbhai Rameshchandra Ghantivala (supra). The Sessions Court has considered this aspect and has therefore rightly quashed and set aside the order of the trial Court.
(21) As per Section 13 of the Act, cognizance can be taken by the court only on a complaint having been filed by an authorized officer. However, in the instant case, it appears that the complaint is not filed after such authorization and straightway chargesheet is filed and, therefore, the court cannot take cognizance in absence of a complaint as envisaged under Section 13 of the Act. However, it is observed that confirming the order of the Sessions Court discharging original accused No.5 shall not preclude the authorized officers from taking appropriate steps under Section 13 of the Act, if they so deem fit.
(22) Resultantly, both these petitions fail and are hereby rejected. Notice discharged (in Special Criminal Application No.575 of 2012) and Rule discharged (in Special Criminal Application No.1410 of 2012).
(23) Registry to place a copy of this order in connected matter.
Bhavesh* *** Sd/ [R.M.CHHAYA, J ]