[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused No.5 to quash and set aside the impugned FIR being C.R. No.I3/2011 registered with Mangrole Police Station for the offences punishable under Sections 363, 366, 376, 466, 471, 465, 114 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). [2.0] Respondent No.2 herein – original complainant has lodged the impugned FIR against the applicant and others for the offences punishable under Sections 363, 366, 376, 466, 471, 465, 114 and 34 of the IPC alleging interalia that original accused No.1 has kidnapped the daughter of the complainant though she was minor and original accused Nos.2 to 5 inclusive of the applicant had prepared one document – Livein relationship agreement on the stamp paper of Rs.50/ and created the forged documents in connivance with each other. That being aggrieved and dissatisfied with the aforesaid FIR, applicant herein – original accused No.5 – Notary has preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.
[3.0] Shri Ashish M. Dagli, learned advocate appearing on behalf of the applicant has vehemently submitted that in view of the provision of Section 13 of the Notaries Act, 1952, no prosecution against the applicant being a Notary is maintainable unless a complaint in writing made by an officer authorized by Central or State Government. Therefore, relying upon Section 13 of the Notaries Act, 1952 as well as the decision of the learned Single Judge in the case of Linaben Kantilal Patel v. State of Gujarat & 1 reported in 2009(2) GLH 491 as well as the decision in the case of V. Ranga Ramu v. State of Karnataka reported in 1999 Cri.L.J. 561, it is requested to allow the present application.
[3.1] It is further submitted that even otherwise the applicant has not committed any offence as alleged and as a Notary he has notarized the agreement – Livein Relationship Agreement between original accused No.1 and the daughter of the complainant by which it cannot be said that applicant has committed any offence. Therefore, it is requested to quash and set aside the impugned FIR. In support of his above submission, he has relied upon the decision of the learned Single Judge in Criminal Miscellaneous Application No.7288/2000 decided on 31.01.2001.
[4.0] Application is opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State. He has submitted that there are specific allegations and averments in the FIR even against the applicant herein with respect to forging the document and/or in helping the original accused No.1 and in preparing the Livein Relationship Agreement though the applicant was having the knowledge that the daughter of the complainant is minor. Relying upon the statements of some of the witnesses, it is submitted that in fact it was the applicant on whose advice the Live in Relationship Agreement was prepared despite the daughter of the complainant was minor and by concocting the forged documents. It is submitted that therefore, the allegations and averments in the FIR prima facie discloses commission of cognizance offences which are further required to be investigated. It is further submitted that even bar under Section 13 of the Notaries Act, 1952 cannot be made applicable at this stage and cannot come in the way of Investigating Officer investigating the complaint. It is submitted that bar under Section 13 of the Notaries Act, 1952 can be applicable at the time of taking cognizance of the offence by the learned Magistrate/Court against the Notary. However, there is no bar against investigation or inquiry by the I.O. In support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of M. Narayandas v. State of Karnataka and Others reported in (2003) 11 SCC 251.
Making above submissions and relying upon above decisions, it is requested to dismiss the present application.
[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:
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 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.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.
[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/Livein 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 and facilitated original accused No.1 to create Livein 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.
(M.R. Shah, J.) menon