Manishbhai Jayantibhai Patel vs State Of Gujarat
2024 Latest Caselaw 3898 Guj

Gujarat High Court

Manishbhai Jayantibhai Patel vs State Of Gujarat on 1 May, 2024

                                                                                            NEUTRAL CITATION




      R/CR.MA/7892/2018                                        ORDER DATED: 01/05/2024

                                                                                            undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                  FIR/ORDER) NO. 7892 of 2018

                               With
           R/CRIMINAL MISC.APPLICATION NO. 8799 of 2018
==========================================================
                          MANISHBHAI JAYANTIBHAI PATEL
                                      Versus
                             STATE OF GUJARAT & ANR.
==========================================================
Appearance in CRMA 7892 of 2018:
MR KULDIP ACHARYA FOR MR MRUGEN K PUROHIT(1224) for the
Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
Appearance in CRMA 8799 of 2018:
MR JR DAVE for the Applicant(s) No.1
MR VISHAL J DAVE for the Applicant(s) No.1
MR HARDIK SONI, APP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                  Date : 01/05/2024

                                  COMMON ORAL ORDER

1. As common questions of law and facts are involved in both the applications and both the applications arise out of the selfsame FIR, with the consent of learned advocates appearing for the parties, the matters are taken up for final hearing and are being disposed of by this common order.

2. The present applications have been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside of the FIR being C.R.No.I-68 of 2018 registered with Kadi Police

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

Station, District Mehsana for the offence punishable under Sections 376, 467, 468, 469, 471, 323, 504, 506(2), 498A and 114 of the Indian Penal Code and all consequential proceedings arising out of the said FIR qua the applicants.

3. The brief facts of the case are as under:

3.1. That one FIR being C.R.No.I-68 of 2018 came to be registered by the complainant with Kadi Police Station, District Mehsana for the offence punishable under Sections 376, 467, 468, 469, 471, 323, 504, 506(2), 498A and 114 of the Indian Penal Code against 7 accused persons, inter alia, alleging that before about one and half years, talks of marriage of his daughter with accused No.6 were going on and daughter of the complainant used to go to the house of accused No.6 and accused No.6 also used to come to the house of the complainant and before about six months, complainant came to know negative things about the character of accused No.6 from his relatives. The complainant, therefore, was not agreeable for the marriage of his daughter with accused No.6. However, the parents of accused No.6 tried to create pressure upon the complainant for marriage of their son with the daughter of the complainant from the relatives of the complainant but the complainant refused to do so.

Thereafter, the daughter of the complainant ran away with accused No.6 and on 03.01.2018, complainant got one courier wherein marriage certificate of his

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

daughter and accused No.6 was found. It is the case of the prosecution that though the date of birth of accused No.6 is 16.04.1998, only for the purpose of performing marriage, he has created forged school leaving certificate and changed his date of birth from 16.04.1998 to 16.04.1996. It is also alleged that though accused nos. 1 to 4 were having sufficient knowledge about the correct age of the accused No.6, they helped accused No.6 to get married to the complainant's daughter and thereby committed the alleged offence. The complainant, therefore, registered FIR against all the accused persons.

4. Heard learned advocates Mr. Kuldip Acharya appearing on behalf of learned advocate Mr. Mrugen K. Purohit and learned advocate Mr. Dave for the applicants and learned APP Mr. Hardik Soni for the respondent - State.

5. Learned advocate Mr. Acharya submits that applicant of Criminal Misc. Application No.7892 of 2018 is an Advocate-cum-Notary and it is alleged that he had notarized the documents at the relevant time. Learned advocate Mr. Acharya further submits that as per Section 13 of the Notaries Act, 1952, no court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under the said Act unless a complaint in writing has been made by an officer authorized by the Central Government or a State Government by general

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

or special order in this behalf. Admittedly, in the present case, there is no compliance of statutory requirement of Section 13 of the Notaries Act, 1952. Learned advocate Mr. Acharya has put reliance upon the decision of this Court in Pankajbhai Ratilal Bakeri v. State of Gujarat, reported in 2022(1) Crimes (HC) 139 and submitted that in similar set of facts and circumstances, the Coordinate Bench of this Court has quashed and set aside the FIR. Learned advocate Mr. Acharya, therefore, submits that the issue involved in the present applications is squarely covered by the aforesaid decision and therefore the FIR in question may be quashed and set aside qua the applicant.

6. Learned advocate Mr. Dave for the applicant of Criminal Misc. Application No.8799 of 2018 submits that applicant is a priest and it is alleged that applicant was having the knowledge about the correct age of the accused No.6 even though he helped accused no.6 to get married to the daughter of the complainant and thereby committed the alleged offence. Learned advocate Mr. Dave submits that the applicant has not committed forgery and he has wrongly been implicated in the alleged offence. The applicant accused has merely relied upon the notarized documents and he has not committed any offence, as alleged, in the FIR. The ingredients of the alleged offences are not made out against the applicant accused. Hence, the FIR in question may be

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

quashed and set aside qua the applicant.

7. Learned APP Mr. Soni has objected present applications with vehemence and submitted that the applicants accused have actively participated in the commission of crime and applicant of Criminal Misc. Application No.7892 of 2018 is an Advocate-cum-Notary and he notarized the forged documents without verifying the original documents and on the basis of which the accused No.6 get married to the daughter of the complainant. Learned APP Mr. Soni further submits that the applicant of Criminal Misc. Application No.8799 of 2018 is a priest and without verifying the veracity of the documents, he has performed the marriage of the accused no.6 and daughter of the complainant. Thus, considering the nature of offence, the applications may not be entertained. However, learned APP has fairly submitted that there is no compliance of statutory requirement of Section 13 of the Notaries Act, 1952.

8. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it is found out that one FIR being C.R.No.I-68 of 2018 came to be registered by the complainant with Kadi Police Station, District Mehsana for the offence punishable under Sections 376, 467, 468, 469, 471, 323, 504, 506(2), 498A and 114 of the Indian Penal Code against 7 accused persons. The applicant of Criminal Misc. Application

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

No.7892 of 2018 is an Advocate-cum-Notary and stood at serial No.2 and applicant of Criminal Misc. Application No.8799 of 2018 is a prist and stood at serial No.1. It is the case of the prosecution that though the date of birth of accused No.6 is 16.04.1998, only to marry the daughter of the complainant, he has created forged school leaving certificate and changed his date of birth from 16.04.1998 to 16.04.1996 and though the accused nos. 1 to 4 were having sufficient knowledge about the correct age of the accused No.6, they helped accused No.6 to get married to the complainant's daughter and thereby they have committed the alleged offence.

9. As per Section 13 of the Notaries Act, 1952, no court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under the said Act unless a complaint in writing has been made by an officer authorized by the Central Government or a State Government by general or special order in this behalf. Admittedly, in the present case, there is no compliance of statutory requirement of Section 13 of the Notaries Act, 1952 before registering the FIR in question against the applicant of Criminal Misc. Application No.7892 of 2018. Section 13 of the Notaries Act, 1952, provides as under:

"13. Cognizance of offence.--

(1)No court shall take cognizance of any

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

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."

10. At this juncture, I would like to refer to the decision rendered by the Coordinate Bench of this Court in the case of Pankajbhai Ratilal Bakeri (supra), wherein, in para 13 and 14, the Coordinate Bench of this Court observed as under:

"13. The applicant-accused in Criminal Misc. Application No.16623 of 2015 was the Advocate- cum-Notary, who had notarized the documents at the relevant time. As regards taking of cognizance against this applicant is concerned, it is well settled that the Court cannot take cognizance of any offence committed by a Notary in exercise or purported exercise of his functions under the Notaries Act, 1952 unless a complaint in writing has been made by an oficer authorized by the Central Government or a State Government by general or special order in this behalf in view of the provisions of Section 13 of the Notaries Act, 1952. In a judgment of this Court rendered in the case of Ashokbhai Rameshchandra Ghantivala v. State of Gujarat, 2009 (2) G.L.H. 491, it has been held that there is a legal bar against taking cognizance of an offence against a Notary unless the

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

requirements of Section 13 of the Notaries Act, 1952 are satisfied. In the present case also, there is no compliance of the statutory requirement of Section 13 of the Notaries Act, 1952 and hence, on this ground alone, the impugned complaint deserves to be quashed against the applicant-original accused No.4.

14. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court observed as under :-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

11. If the facts of the present case are considered in the context of the aforesaid observations made by the Coordinate Bench of this Court, in that event, it would be found out that before registering the FIR against the applicant of Criminal Misc. Application No.7892 of 2018, the statutory requirement of Section

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

13 of the Notaries Act, 1952 has not been complied with and therefore merely on this ground, the impugned FIR deserves to be quashed against the said applicant. Moreover, applicant of Criminal Misc. Application No.8799 of 2018 is a priest and it is alleged that he was having the knowledge about the correct age of the accused No.6 even though he helped accused no.6 to get married to the daughter of the complainant and thereby committed the alleged offence. However, it is not the case of the prosecution that the said applicant is involved in the forgery of school leaving certificate of accused No.6 based on which he get married to the daughter of the complainant.

12. Having considered the allegations made in the impugned FIR in the backdrop of the facts of the present case as also the ratio enunciated by the Hon'ble Apex Court in State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, this Court is of the opinion that the impugned FIR filed by the complainant is nothing but a clear misuse and abuse of the process of law insofar as the applicants are concerned and hence it deserves to be quashed and set aside in exercise of inherent powers under Section 482 of the Code of Criminal Procedure, 1973.

13. In the result, the applications succeed and are hereby allowed. Accordingly, the FIR being C.R.No. I-68 of 2018 registered with Kadi Police Station,

NEUTRAL CITATION

R/CR.MA/7892/2018 ORDER DATED: 01/05/2024

undefined

District Mehsana and all consequential proceedings arising out of the said FIR, are hereby quashed and set aside qua the applicants. Rule is made absolute.

(DIVYESH A. JOSHI,J) LAVKUMAR J JANI