Gujarat High Court
Manojbhai Gangaram Patel vs State Of Gujarat on 4 August, 2023
Bench: M. R. Mengdey
NEUTRAL CITATION
R/CR.MA/12063/2014 JUDGMENT DATED: 04/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12063 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANOJBHAI GANGARAM PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
for the Applicant(s) No. 1
MS DHRUTI G PANDYA(10821) for the Applicant(s) No. 1
MR ANIL C THAKORE(2324) for the Respondent(s) No. 2
MR.KANDARP D ACHARYA(2623) for the Respondent(s) No. 2
MR. MANAN S. MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 04/08/2023
ORAL JUDGMENT
1. By filing the present Application under Section 482 of the Code of
Criminal Procedure, 1973, the Petitioner [Original Accused No.10] has made
the following prayers:
"(A) Your Lordships be pleased to admit and allow this petition, in the
NEUTRAL CITATION
R/CR.MA/12063/2014 JUDGMENT DATED: 04/08/2023
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interest of justice;
(B) Your Lordships be pleased to quash and set aside the impugned FIR
being C.R.No.I-54/2014 registered with Patan City 'A' Division Police Station
and all further proceedings in pursuance thereto, in the interest of justice;
(C) Your Lordships be pleased to stay the further proceedings of impugned
FIR being C.R.No. I-54/2014 registered with Patan City 'A' Division Police
Station, pending the admission, hearing and final disposal of this application;
(D) Your Lordships be pleased to pass such other and further orders as may
be deemed fit and proper by this Hon'ble Court, in the interest of justice;"
2. The facts and circumstances giving rise to the filing of the present
Application are such that the Applicant herein is a Practicing Advocate & a
Notary, operating at Chanasma District Patan.
2.1 On 22.3.2014, two Affidavits came to be affirmed before the present
Applicant; one by Rana Nirav Dharmendrabhai and Thakore Madhvi Pradhanji
jointly, and the another individually, by Thakore Madhvi Pradhanji. Thakore
Madhvi Pradhanji happens to be the daughter of Respondent No.2, who had
eloped with Accused No.1 Rana Niravkumar Dharmeshbhai. In the aforesaid
Affidavits, it has been stated that both Rana Nirav Dharmeshbhai and Thakore
Madhvi Pradhanji have performed marriage on 27.3.2014. Thus, though the
Affidavit has been affirmed on 22.3.2014, what is stated in the Affidavit is that
the marriage has been performed on 27.3.2014.
2.2 In the background of these facts, Respondent No.2 lodged the FIR in
question. It is also alleged in the FIR that there are several other discrepancies
in the contents of the Affidavits affirmed before the present Applicant.
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R/CR.MA/12063/2014 JUDGMENT DATED: 04/08/2023
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3. Heard learned Advocate Ms. Dhruti G. Pandya appearing for the
Applicant. She submitted that the Applicant is a Practicing Advocate & a
Notary operating at Village Chanasma, District Patan. The Applicant in the
present case has acted in due diligence and has authenticated the Affidavits of
the concerned persons. There was no criminal intention on part of the present
Applicant in affirming those Affidavits. She further submitted that in view of
the provisions of Section 13 of the Notaries Act there is a bar against taking
cognizance of the offence committed by a Notary in the exercise or purported
exercise of his functions under the Notaries Act unless the complaint in writing
is given by an officer authorized by the Central Government or a State
Government. In the present case, no complaint as provided under Section 13 of
the Notaries Act has been given by an authorized officer and therefore the
present FIR is not maintainable against the present Applicant. She therefore
submitted to allow the present Application.
4. The learned Advocate has sought to rely upon the following judgments
of this Court in support of her submission:
(i) Criminal Misc. Application No. 9466 of 2019 in case of Mita
Maganbhai Panchal v/s State of Gujarat & Another decided on 12.02.2023.
(ii) Criminal Misc. Application No. 20274 of 2019 in case of Harishkumar
Balchandra Rajput v/s State of Gujarat decided on 9.6.2021.
5. The Application is vehemently opposed by learned APP Mr. Manan S.
Mehta appearing for the Respondent State. He submitted that the Affidavits
affirmed by the concerned persons before the present Applicant contained
apparently false averments and it was the duty of the present Applicant to
verify the contents of the Affidavits. He therefore submitted to dismiss the
present Application.
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6. Learned Advocate Mr. Anil C. Thakore appearing for Respondent No.2
has also opposed the present Application.
7. Heard learned Advocates for the parties and perused the record.
8. From the FIR, it appears that the present Applicant has been arraigned in
the present offence as accused only because he had affirmed certain Affidavits
purportedly made by Rana Nirav Dharmeshbhai and Thakore Madhvi
Pradhanji on 22.3.2014. Thakore Madhvi Pradhanji happens to be the daughter
of Respondent No.2 who had eloped with Rana Niravkumar Dharmeshbhai
and had performed marriage with him., Both of them appear to have affirmed
an Affidavit on 22.3.2014 before the present Applicant wherein it is stated that
they have performed marriage on 27.3.2014. Since the Affidavit was affirmed
on 22.3.2014, they could not have stated about having performed marriage on
27.3.2014 in the said Affidavit. This aspect has triggered the present FIR being
lodged against the present Applicant. The role attributed to the present
Applicant in the present offence is only to the effect that he had notarized the
aforesaid Affidavits.
9. Section 8 of the Notaries Act enumerates the functions of Notaries. Sub
Section (1) (e) of Section 8 of the Notaries Act empowers the Notary to
administer oath to, or take affidavit from any person. It is under these
provision that the present Applicant has Notarized the Affidavits in question.
Thus, the act on part of the present Applicant falls under the provisions under
Section 8 of the Notaries Act and is thus an exercise of his functions under the
Notaries Act. Section 13 of the Notary Act 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
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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."
9.1 In view of the aforesaid provision of Section 13 of the Notaries Act, the
cognizance of offence committed by a Notary in the exercise of his functions
under the Notaries Act can be taken only upon a complaint in writing made
by an officer authorized by the Central Government or a State Government.
In the present case, no such written complaint has been given by an officer
authorized in this regard. Therefore, the bar under Section 13 of the Notaries
Act stares at the present FIR and since the cognizance of the offence is clearly
barred, the FIR in the present form is not maintainable against the present
Applicant.
10. This Court in its judgment in case of Ashokbhai Rameshchandra
Ghantivala v/s State of Gujarat & Anr. reported in 2009 (2) G.L.H. 491
has observed as under:
"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. "
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From the objects 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"
11. It is also interesting to note that Respondent No.2 has arraigned the
present Applicant as accused in the present offence. However, she has not
arraigned Thakore Madhvi Pradhanji who had made false statement in the
Affidavit as an accused.
12. In view of the aforesaid, the present FIR appears to be nothing but an
abuse of process of law so far as the present Applicant is concerned and hence,
there is no point in keeping the present proceedings pending against the present
Applicant and hence, the present Application deserves to be allowed.
13. Under the above circumstances, the present Application is allowed. The
FIR being C.R.No.I-54/2014 registered with Patan City 'A' Division Police
Station and all other consequential proceedings arising there from are hereby
quashed and set aside so far as it relates to the present Applicant. Rule is made
absolute. Direct service is permitted.
(M. R. MENGDEY,J)
J.N.W
