Gujarat High Court
Dineshkumar Chatarsing ... vs State Of Gujarat on 26 June, 2025
NEUTRAL CITATION
R/CR.MA/5951/2014 ORDER DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5951 of 2014
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DINESHKUMAR CHATARSING BRAHMSHAKTRIAY
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/06/2025
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 to quash and set aside the
FIR being C.R. No.I-55 of 2013 registered with Chhapi
Police Station, Banaskantha.
2. In essence, the petitioner, who is practising advocate,
has been arraigned as accused on the ground that he has
notarized some documents, which purported to be forged one.
3. Brief facts of the case are as under:-
3.1 The petitioner is a practicing Advocate at Deesa Civil and
Criminal Courts with approximately 18 years of experience and
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is also a Notary Public. As per the case of the petitioner,
respondent No.2, along with another individual, had visited the
petitioner's office for attestation of certain documents,
including a Banakhat (Agreement to Sell). Two attesting
witnesses were also present at the time.
3.2. Before attesting the document, the petitioner verified the
identity of respondent No.2, Mr. Prajapati Devkaranbhai
Mahadevbhai, who had produced his election card as proof of
identity. The petitioner asserts that the due process of
verification was followed and the attestation was carried out in
good faith in the ordinary course of his professional duties.
Hence, the present petition.
4. Learned advocate for the petitioner referring to section
13 of the Notaried Act and also judgment delivered by this
Court in case of Ashokbhai Rameshchandra Ghantivala Vs.
State of Gujarat and others reported in 2009(2) GLH 491 as
well as in case of Mohammed Yusuf Kasam Kalavat Vs. State of
Gujarat reported in 2012 JX (Guj) 196 would submit that the
Court cannot take cognizance of any offence committed by the
notary purported to exercise powers under the Act on the basis
of police report. He would further submit that in the present
case, not only the FIR is registered, but the investigating
officer has also filed charge sheet against the petitioner though
legal bar is operating from taking cognizance against notary
for purported act done under the Notarized Act on the police
report. Upon such submission, learned advocate for the
petitioner urges to allow these petitions.
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5. Per contra, learned APP would only point out the
argument that the material collected during investigation can
be used to file private complaint against the petitioner. Apart
from that, he does not argue anything more.
6. Having heard learned advocates for the respective
parties, 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.
7. 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.
8. 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
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complaint is required to be filed u/s 2(d) of the Code of
Criminal Procedure, 1973. In the present case, pursuant to the
FIR, the investigating officer has also tendered charge sheet
against the accused and therefore, he is legally barred from
taking cognizance u/s 13 of the Act from the police report.
9. 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
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
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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 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."
10. 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 charge sheet
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filed from the police report and therefore, filing of charge sheet
and registration of criminal case against the petitioner
deserves to be quashed and set aside reserving liberty to the
prosecution to use the material, if any, collected during the
investigation of the FIR, for filing complaint, if so desired.
11. For the foregoing reasons, the petitions are allowed and
proceedings of Criminal Case Nos.1454 of 2013 and 1453 of
2013 pending before the learned JMFC, Mangrol, Surat qua the
petitioner herein are hereby quashed and set aside reserving
liberty to the prosecution to use the material, if any, collected
during the investigation of the FIR, for filing complaint, if so
desired. Rule made absolute to the aforesaid extent. Direct
service is permitted.
12. In wake of above reasons, the petition deserves
consideration and accordingly, it is allowed. The impugned FIR
registered as C.R. No.I-55 of 2013 registered with Chhapi
Police Station, Banaskantha and further proceedings
arising thereof are hereby quashed and set aside qua the
petitioner herein. Rule is made absolute. Direct service is
permitted.
(J. C. DOSHI,J)
MANISH MISHRA
