Gujarat High Court
Ajit Jethalal Shashtri (As Per F.I.R. ... vs State Of Gujarat on 14 February, 2024
NEUTRAL CITATION
R/SCR.A/3833/2020 ORDER DATED: 14/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3833 of 2020
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AJIT JETHALAL SHASHTRI (AS PER F.I.R. NOTARY A.J.SHASHTRI)
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAK H SINDHI(5710) for the Applicant(s) No. 1
HL PATEL ADVOCATES(2034) for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 14/02/2024
ORAL ORDER
1. This Special Criminal Application under Section 482 of the
Criminal Procedure Code is filed to quash the FIR in Crime
Register No.I-11192030200372 of 2020 registered with Kanbha
Police Station, District-Ahmedabad, against the petitioner and
others for the offences punishable under Sections 465, 467,
468, 471 and 120-B of the Indian Penal Code and also to quash
the charge-sheet that is filed subsequently in Criminal Case
No.15200 of 2021, after completion of investigation, which is
on the file of 25th Judicial Magistrate, First Class, Ahmedabad
(Rural).
2. Heard learned counsel for the petitioner and Mr.Hardik
Soni, learned APP for the respondent-State and learned
counsel for the second respondent-complainant.
NEUTRAL CITATION
R/SCR.A/3833/2020 ORDER DATED: 14/02/2024
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3. The facts of the case lies in a narrow compass and may
be stated as follows:-
3.1 The second respondent-defacto complainant states that
he is holding the registered Agreement to Sell in respect of the
land in question executed by the original owner. It is stated
that the accused nos.2 to 4 impersonated themselves as
owners of the said land and they executed the Agreement to
Sell in respect of the same land and also a Power of Attorney in
favour of accused no.1 and they got the said documents
attested by the petitioner, who is accused no.6, who is a
Notary by profession.
3.2 So the second respondent lodged report with the police
with above allegations and the same was registered as FIR and
it was investigated and, thereafter, charge-sheet was filed.
4. This petition by accused no.6 alone was filed seeking
quash of the said criminal proceedings launched against him
on the sole ground that the police cannot register any FIR
against him and file charge-sheet in the Court to prosecute him
in respect of the acts done by him in his capacity as a Notary.
It is his case that Section 13 of Notaries Act mandates that a
complaint has to be filed by the officer authorized by the
Central Government or the State Government, as the case may
be, by general order or special order in the Court and the Court
has to take cognizance of the offence against Notary in respect
of the act purported to have been done by him as a Notary on
such complaint and if no such complaint is filed by the
authorized officer, the Court cannot take cognizance of offence
against a Notary.
NEUTRAL CITATION
R/SCR.A/3833/2020 ORDER DATED: 14/02/2024
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5. In order to appreciate the said contention of the learned
counsel for the petitioner, it is expedient to go through Section
13 of the Notaries Act and it reads thus:-
"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."
6. A bare reading of the aforesaid Section makes it manifest
that express bar is engrafted on the Court to take cognizance
of any offence against a notary relating to any offence said to
have been committed by him in exercise or purported exercise
of his functions under the Act. It is only upon a complaint in
writing filed by an officer authorized by the Central
Government or the State Government by a general or a special
order in this behalf that the Court is empowered to take
cognizance of the offence against the petitioner, who is a
Notary. It is a protection that is afforded to the Notary from
being maliciously prosecuted in respect of the acts done by
him or purported to be done by him in exercise of his functions
under the Act. Therefore, in view of the bar contained in
Section-13 of the Act, registration of FIR by the police against
the petitioner who is notary is legally unsustainable. Similarly,
taking cognizance of an offence against the petitioner, who is a
Notary, by the Court on the basis of the charge-sheet filed by
the police is also legally unsustainable. The same are not valid
NEUTRAL CITATION
R/SCR.A/3833/2020 ORDER DATED: 14/02/2024
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under law and they are hit by Section 13 of the Notaries Act.
The learned Magistrate ought not to have taken cognizance of
the offence against the petitioner, who is a Notary on the basis
of the charge sheet that was filed by the police. The learned
Magistrate has completely lost sight of the mandate contained
in Section 13 of the Act and the bar engrafted thereunder to
take cognizance of the offence.
7. In fact, in similar facts, this Court has earlier held in the
case of Ashokbhai Rameshchandra Ghantivala v. State of
Gujarat reported in 2009 SCC Online Gujarat 2203, and in
Bharatkumar Mulabhai Kanthariya v. State of Gujarat
reported in 2019 SCC Online Gujarat 765, that taking
cognizance of an offence by the Court against Notary on the
basis of the charge-sheet is not valid, in view of express bar
contained in Section-13 of the Act, and thereby quashed the
criminal proceedings launched against Notary in the said case.
On the basis of the ratio laid down in the aforesaid two
judgments, recently, this Court again in the case of
Dilipkumar Chandrakant Shah V. State of Gujarat as per
order dated 30.1.2024 in Criminal Misc. Application No.7266 of
2021 quashed the criminal proceedings against the Notary as
cognizance of offence was taken against him by the Court on
the basis of the charge-sheet filed by the police without there
being any complaint by the authorized officer.
8. The petitioner is also a Notary, who is similarly placed,
and he is entitled to similar relief of quashing of the
proceedings launched against him.
NEUTRAL CITATION
R/SCR.A/3833/2020 ORDER DATED: 14/02/2024
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9. Therefore, the petition is allowed. FIR in Crime Register
No.I-11192030200372 of 2020 registered with Kanbha Police
Station, District-Ahmedabad, against the petitioner, who is
accused no.6 in FIR and accused no.3 in the charge-sheet, and
the criminal prosecution launched against him in Criminal Case
No.15200 of 2021, after completion of investigation, which is
on the file of 25th Judicial Magistrate, First Class, Ahmedabad
(Rural), are hereby quashed. The criminal proceedings in the
said case against other accused can be continued.
10. Further, the prosecution is at liberty to launch criminal
proceedings against the petitioner, who is accused no.6, in
compliance with Section 13 of the Notaries Act by way of filing
a complaint by the authorized officer. If any such complaint in
terms of Section 13 of the Act is filed and cognizance of
offence is taken on the basis of said complaint, then
prosecution is at liberty to take steps to seek joint trial of the
two cases. Direct service is permitted.
(CHEEKATI MANAVENDRANATH ROY, J)
R.S. MALEK
