Gujarat High Court
Iqbalbhai Abdulgani Vahora vs State Of Gujarat on 11 July, 2025
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R/CR.MA/18577/2021 ORDER DATED: 11/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 18577 of 2021
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IQBALBHAI ABDULGANI VAHORA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ADITYA R GUNDECHA(8869) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR ROHAN SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/07/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code"),
the petitioner has prayed for quashing and setting aside order
dated 14.06.2021 passed by learned Trial Court in Criminal
Enquiry No.51 of 2019 for issuance of process and as well as all
other consequential proceedings arising out of the said Criminal
Enquiry qua the petitioner herein.
2. Facts of the case are as under :-
2.1. That complainant is driver and caretake of PRafulchand
Harmanbhai Patel who is residing in London since past may
years and owns many properties in Nadiad. That on 09.07.2019
the accused with help of each other prepared one forged power of
attorney of property being Moje Uttarsanda Opp. Ranhans
Cinema Block No./Survey No.1053, Khata No.1236 which was
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owned by Prafulchand Patel and got notarized by produce false
Adhar Card of Prafulchand Patel and Sharmitaben Patel with an
intention to dispose of the property. It is stated that moment the
complainant came to know about forged power of attorney, he
rushed to his advocate and got published. Thereafter, the
complainant filed private complaint being Criminal Enquiry
No.51 of 2019 before the learned Trial Court and learned Trial
Court was pleased to pass order under section 210 of Cr.P.C. by
directing the police to submit detail report. On 15.10.2019, the
police authority filed report. Learned Trial Court after going
through report vide order dated 14.06.2021 issued process.
Hence, present petition.
3. Heard learned advocates for parties. Private respondent
though served did not remain present.
4. Case of the petitioner is that private respondent firstly
approached concerned police and did not name police. The police
has not accepted FIR and hence, private complaint was field
before the learned Trial Court. It was registered as Criminal
Inquiry No.51 of 2019. Even in private complaint name of the
petitioner is not stated, yet learned Trial Court at the end of
inquiry initiated under section 202 of Cr.P.C., issued process to
the petitioner who as notary public identified and executed one
affidavit of person without knowing that it is affidavit of non
existent person.
5. Learned advocate Mr.Gundecha for the applicant referring
to section 13 of the Notary Act as also judgment of this Court in
the case of Ashokbhai Rameshchandra Ghantivala v/s. State of
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Gujarat [Special Criminal Application No.336 of 2006] and
submitted that private respondent has not authority under
section 13 of the Notary Act to file complainant against
petitioner. Complaint against Notary for his act as notary public
can be registered only at the behest of officer appointed by State
or Central Government by special order. He would submit that in
present case bar under section 13 of the Notaries Act is
applicable. Therefore, in this circumstances, learned advocate for
the petitioner submitted to allow the petition.
6. Learned APP on the other hand could not point out any
adverse aspect to argument made by learned advocate
Mr.Gundecha.
7. In the peculiar facts and circumstances of the case what
could be noticeable that private respondent has filed criminal
case seeking relief that his complaint should be send to police
under section 156(3) of Cr.P.C. However, learned Trial Court
instead of sending complaint to police investigation, initiated
inquiry under section 202(1) and called report from police and
subsequent thereto, after receipt of report from police passed
detailed order on 14.06.2021 to issue process against accused
including the petitioner. No relief was asked to issue process
against the petitioner. Be that as it may. What could be noticed
that role of the present petitioner is limited to exercise his power
as notary and made endorsement in forged document and except
that, there is no other allegation levelled against him, which
suggests that he is not in complicity with the main accused in
forging the document nor has he gained any benefits from the
said forged documents.
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8. Section 13 of the Notarized Act was pressed into service,
which reads as under:-
"SECTION 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.
9. Plain reading of the aforesaid indicates that legal bar is
operating from taking cognizance against notary for purported
act done under the Notarized Act on the police report. A
complaint is required to be filed u/s 2(d) of the Code of Criminal
Procedure, 1973.
10. The Coordinate Bench of this Court in case of Ahokbhai
Rameshchandra Ghantivala (supra), addressed identical issue.
Relevant observations and findings are at para 8 and 9, which
reads as under:-
"8. Heard the learned Advocates for the parties. Having
regard to the submissions advanced by the learned
Advocates for the parties, this Court is of the view that
it is not necessary to enter into merits of the allegations
made in the chargesheet or in the F.I.R. as the same
could have bearing on the final outcome of the
proceedings emanating from the F.I.R. However,
examining the main contention raised by the learned
advocate for the petitioner namely, that in view of the
provisions of Sec. 13 of the Act, the Court could not
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have taken cognizance of the complaint except as
provided under the said provision, it would be
necessary to refer to the provisions of Sec. 13 of the Act
which 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
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."]
] A plain reading of Sec. 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."]
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
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in the manner laid down in the Section.
9. The Supreme Court in the case of R.P. KAPUR V/s.
STATE OF PUNJAB [AIR 1960 SC Page 866] has laid
down certain categories of cases wherein inherent
jurisdiction to quash proceedings can and should be
exercised. One of the said categories is where it
manifestly appears that there is a legal bar against the
institution or continuance of the criminal proceeding in
respect of the offence alleged. Absence of the requisite
sanction may for instance, furnish cases under this
category."
11. Perusal of the record as well as findings of the Coordinate
Bench of this Court, I am of the opinion that the learned trial
Court cannot take cognizance on the basis of police report and
therefore registration of criminal case against the petitioner
deserves to be quashed and set aside.
12. For the foregoing reasons, the petition is allowed and order
dated 14.06.2021 passed by learned Trial Court in Criminal
Enquiry No.51 of 2019 and all other consequential proceedings
arising out of said Criminal Enquiry qua the petitioner herein
are hereby quashed and set aside. Rule made absolute to the
aforesaid extent. Direct service is permitted.
(J. C. DOSHI,J)
SATISH
