Bombay High Court
Seema Hitesh Khandelwar @ Seema ... vs State Of Mha. Thr. Pso Ps City ... on 6 June, 2023
Bench: G. A. Sanap
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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
-----------------------------------------------------------------------------------------------
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.
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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(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
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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
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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.
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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
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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
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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
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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:
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"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:
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"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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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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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
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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
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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
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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
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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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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
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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
