Rakesh Kainthla, Judge
1. Bhupesh Nandan was arrested by the police for the commission of offences punishable under Sections 420, 467, 467, 471, 120B and 411 of IPC. He disclosed during the interrogation that he had prepared the forged documents of the vehicle bearing registration no. HP-62-4393 and had obtained 10,000/- for this purpose.
2. The police conducted a preliminary investigation and found that Jagdish Thakur had purchased one Tipper from Sai Motor, Sauli Khad, Mandi in February 2016. Jagdish Thakur was constructing the house and required money. He had got his Tipper financed from SBI, Takoli and had to pay 20,000/- per month as the instalment. He wanted to sell the vehicle but it was not possible to do so without obtaining the clearance. Even if the vehicle was sold by Jagdish, he would have to deposit the sale proceeds with the Bank for repayment of the loan, so he asked Bhupesh Nandan to prepare the forged documents of the vehicle. Bhupesh Nandan got the tipper registered with the State Transport Authority, Shimla in the name of Dharmender Kumar. The vehicle was sold to Champa Thakur. Subsequently, Champa Thakur sold the vehicle to Neelmani through her husband- Jagdish Thakur. The police requisitioned the vehicle and also summoned Neelmani. The police found that the forged documents were prepared regarding the transfer of the vehicle. FIR was registered. The police conducted the investigation. The file of the registration was obtained from the office of the State Transport Authority. The police found that as per the sale certificate, the vehicle was sold by Unique Motors, Gagal, District Kangra. The record of Unique Motors was verified it was found that the vehicle was not sold by them. They were not even the dealer of SML Isuzu Limited but were the dealers of Eicher VE Commercial vehicles. The police checked the record of Sai Motor, Shaulikhad and found that the vehicle was sold to Jagdish Thakur, hence, the sale certificate stated to have been issued by M/s Unique Motors was forged. The VAT invoices were also forged and fabricated. The record also showed that the vehicle was financed by Sundaram Finance Limited. Verification was made and it was found that Sundaram Finance Limited had not financed the vehicle but the vehicle was financed by SBI, Takoli in the name of Jagdish Thakur. Hence, the document regarding the finance by Sundaram Finance Limited was also forged. The vehicle was stated to be insured with Royal Sundaram Alliance Insurance Company. This certificate was also found to be forged. A search was made for Dharmender Singh Chandel and it was found that no such person was residing at Theog, as per the address furnished to the State Transport Authority. The Himachali Certificate stated to have been issued in the name of Dharmender Singh Chandel was also forged and the real certificate against the serial number mentioned in the Himachali Certificate was issued to Rajesh regarding his being a member of the Scheduled Caste. The vehicle was also shown to be insured by the National Insurance Company. Inquiries were made from the National Insurance Company, which stated that it had not insured the vehicle. The police also found an affidavit stated to have been executed by Dharmender Singh Chandel in favour of Champa Thakur. This affidavit was attested by notary Suresh Kumar Sharma and the executant was identified by Jhabe Ram. Dalip Singh Thakur-the present petitioner had attested the affidavit between Champa Thakur and Neelmani. Champa Thakur also stated that she had not signed the affidavits and file etc. The documents were sent to FSL for comparison. The challan was prepared and it was presented before the Court after the completion of the investigation. No other allegation was made against the petitioner. These allegations do not constitute the commission of any offence, therefore, it was prayed that the present petition be allowed and FIR No. 06/2017 be ordered to be quashed.
3. I have heard Mr. Rahul Mahajan, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State.
4. Mr. Rahul Mahajan, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He had only attested the affidavit and the persons executing the affidavits were duly identified by the identifier. The petitioner had no means of knowing that the contents of the affidavit were false and he was not even supposed to verify the truthfulness or otherwise of the contents of the affidavit. The cognizance of the offence against the petitioner is barred; therefore, he prayed that the present petition be allowed and the FIR No. 06/2017 be ordered to be quashed.
5. Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the challan has been filed before the Court. The remedy of the petitioner is to approach the learned Trial Court and file an application seeking his discharge. It is not permissible to file a petition for cancellation of the FIR in such a case. The petitioner had attested the false affidavits and is equally responsible for the forgery of the documents; therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
7. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, (2023) 7 SCC 711 [LQ/SC/2023/711 ;] : 2023 SCC OnLine SC 765 wherein it was observed at page 716:-
“17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 [LQ/SC/2012/789] : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] [LQ/SC/2012/789] , this Court laid down the following guiding principles : (SCC pp. 482-84, para 27)
“27. …27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith predominantly give rise to and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the chargesheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debitojustitiaei. e. to do real and substantial justice for the administration of which alone, the courts exist.
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27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”
8. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-
“26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”
(emphasis supplied)
9. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial based on evidence led before the Court. It was observed:
“10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of the trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.
11. One other reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.”
10. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed:
"12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568] [LQ/SC/2018/1616] , this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab (AIR 1960 SC 866 [LQ/SC/1960/96] ) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint."
11. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.
12. It was submitted that the police had conducted the investigations and presented the challan. Hence, this Court should not exercise its jurisdiction under Section 482 of Cr.P.C. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Abhishek v. State of M.P., 2023 SCC OnLine SC 1083 that the High Court will continue to exercise the power even if the charge sheet has been filed. It was observed:
“11. This being the factual backdrop, we may note at the very outset that the contention that the appellants' quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr. P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. v. State of Gujarat ((2011) 7 SCC 59) [LQ/SC/2011/817] ]. This principle was reiterated in Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home [(2019) 11 SCC 706] [LQ/SC/2018/1446] . This issue, therefore, needs no further elucidation on our part.”
13. Thus, the submission that the power under Section482 of Cr.P.C. cannot be exercised after filing of the charge sheet is not acceptable.
14. Section 13 of the Notaries 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 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."
15. It is apparent from the bare perusal of the Section that the Court is barred from taking cognizance of any offence committed by a Notary in the exercise of his function under this Act except upon a complaint made by an officer authorized by the Central or the State Government. It is undisputed that the petitioner had attested the affidavits in the exercise of the functions conferred upon the Notaries Act, therefore, the provisions of Section 13 will apply to the present case. It was laid down by Bombay High Court in Chandmal Motilal Bora v. State of Maharashtra, 2003 SCC OnLineBom 762: (2004) 2 Mah LJ 41: (2004) 106 (2) Bom LR 521: (2005) 1 Bom CR (Cri) 823, that when any allegation is made against the notary touching the official purpose, the Criminal Court cannot take the cognizance except upon the complaint made in writing. It was observed:
“10. Therefore, if any allegation is made against a Notary which touches the official performance as a notary, the Criminal Court is forbidden from taking cognizance unless the complaint in writing is made by an officer authorised by the Central Government or State Government by general or special order in this behalf. Therefore, whenever an official act of a Notary comes into the picture, it becomes the duty of the criminal Court to see, whether the allegations are directly concerned with his official duty or the performance which he has to do as indicated in section 8 of the Notaries Act. The Court which has been requested to take cognizance of the complaint has to apply its judicial mind and to see whether the act which is the subject matter of the complaint is the official act of a Notary or it is an act which is beyond his official performance. Suppose if the notary is alleged to have committed an offence by his act directly in his personal capacity, then there is no need for sanction, because, the said act is not connected with his official performance, like an allegation showing that the notary committed he murder or Notary assaulted a person for the purposes of causing simple hurt, grievous hurt etc. If the allegations show that by an act which is not in accordance with the provisions of the Notaries Act, the notary has been alleged to have committed an offence, there is no need to have a sanction to the complaint in writing of an officer as contemplated by provisions of section 13 of Notaries Act. But if the act alleged is touching his official performance, the Court has to be on guard when it has been requested to take cognizance of the allegations against the Notary.
11. If such protection is not granted to the Notary, he would be involved, implicated and roped in, in a number of offences, because a number of documents are being notarised before him in his Notarial register. Some documents may be purporting to be for the offence of cheating, blackmailing or offence of commercial transactions. He would be involved in a number of offences concerned with the disposal of property, transfer of the property, sale of the property, and exchange of property. He would be also coming into the picture as an accused in a number of offences connected with a number of commercial crimes. A Notary is not supposed to know each and every person before him for the purpose of notifying a document in his Notarial register. He is not supposed to know the truth behind the documents brought before him for entries. He is generally introduced to parties by persons who happen to be persons of his acquaintance. Such a person may be an advocate, a clerk of the advocates, or some persons who are connected with him by his profession as a Notary or by his profession generally as a lawyer. If such protection is not granted to a notary, it would be very difficult for him to work as a notary and members of the public at large would be facing a number of difficulties at every step with this object section 13 has been enacted by the Legislature with a foresight.
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14. As a special feature of a legitimate precaution which the notary should have, a lawyer should have, while performing his duty as Notary or lawyer, by his profession as such, by his work as such, by his function as such, he is likely to be in near proximity of a probable accused or an accused. In the performance of his duty as such, he is likely to do some act, as requested by such person, maybe as a client or a person who has come to notarising a document. The advocate or a notary will have to do such an act as requested by that person. At that stage, he may not be known as to what would be the consequences of the document which he has prepared or notarised. Would it be proper to permit such an advocate or a notary to be roped in, in the prosecution, which would be initiated against such a person in future proximity. The reasonable answer would be “no”. If such a protection is not granted to such persons, it would be very difficult for them to perform the acts, contemplated by the profession of a lawyer or the functions contemplated to be done by a notary. A Criminal Court has to take into consideration the cognizance of such special features if they are indicated by the prosecution or by the complaint of which the criminal Court is requested to take cognizance. The Criminal Court has to consider this aspect if an application is made to exonerate such an accused, who happens to be a professional or performing an official duty. When such a request is made even at the initial stage and if there is a case to act accordingly, the Criminal Court should not be shy in entertaining such an application and even allow it if such application deserves to be allowed. Exactly that has been contemplated, in the judgment of the Supreme Court in Madhavrao Scindia's case (supra).
16. A similar view was taken by the Gujarat High Court in Ashokbhai Rameshchandra Ghantivala v. State of Gujarat, 2009 SCC OnLine Guj 2203 wherein it was observed:
"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 the merits of the allegations made in the chargesheet or the F.I.R. as the same could have a bearing on the 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 Section 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 Section 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 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.”
From the objections 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 the 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.
17. Kerala High Court also held similarly in P.C. Jeeva v. State of Kerala, 2022 SCC OnLine Ker 8294, as under:
"7. From the perusal of the aforesaid provision, it is evident that a special procedure has been contemplated by virtue of the said provision and it provides that the cognizance of any offence committed by a Notary in exercise or purported exercise of his function under the Notaries Act can be instituted only upon a complaint in writing made by an officer authorized by the Central Government in this behalf. The crucial aspect to be noticed in this regard is that Section 13 of the Act is made applicable to any offence committed by a Notary in the exercise or purported exercise of his functions under this Act. It is evident that irrespective of the question that the offence which is a subject matter is committed under the provisions of the Notaries Act or any other enactment, procedure as contemplated under Section 13 has to be followed while taking cognizance of an offence against a Notary Public. The aforesaid question came up for consideration before this Court in Jyolsana VP. v. State of Kerala [2020 (6) KHC 334]. In paragraph 11 of the said judgment, this Court made the following observations:
“11. As discussed above, it is quite impossible for a Notary to know the genuineness of the document produced before him for attestation. The Notary is not supposed to know each and every person before him for the purpose of notifying a document in his Notarial Register. He is generally introduced to parties by persons who happen to be persons of his acquaintance. If such protection is not granted to a Notary, it would be very difficult for him to work as a notary and members of the public at large would be facing a number of difficulties at every step.
With this object, S. 13 has been enacted by the Legislature as a safeguard.”
8. Thus from the above, it is evident that the stipulation contained under Section 13 is a mandatory provision as far as the offence alleged to have been committed by a Notary Public in exercise or purported exercise of his function, are concerned. It is also clear that no court can take cognizance of such offences unless the procedure contemplated under Section 13 of the Notaries Act, 1952 are followed. In this case, it is evident that the proceedings have been instituted and cognizance thereon was taken on the basis of a police report which is not the procedure as contemplated under Section 13 of the Act. In such circumstances, as the procedure which is mandatorily required to be followed under Section 13 of the Act is not complied with, the prosecution now ongoing against the petitioner is vitiated. In such circumstances, I find some force in the contentions put forward by the learned counsel for the petitioner."
18. Karnataka High Court also held similarly in Praveen Kumar Adyapady and Ors. vs. State of Karnataka and Ors. (11.04.2022 - KARHC): MANU/KA/2178/2022 as under:
"6. Upon hearing and perusal of records, which reveals accused No. 1 got married to the victim girl and the daughter of this complainant-respondent No. 2, defacto- complainant by producing the affidavit before the Arya Samaj before accused Nos. 7 and 9 and married the victim girl, stating that the victim girl was major and had attained the age of majority by manipulating the date of birth of the victim girl as 25.09.1999 even though her actual date of birth was 25.09.2000. Admittedly these two petitioners were advocates/notaries and they have given a declaration in affidavit filed by the parties. After looking at the documents produced by the parties, of course, while discharging the duty they have signed and given declarations in the document produced by the parties but it cannot be said, that these petitioners had intentionally colluded with the other accused persons and signed agreement of declaration for helping the accused No. 1 by manipulating the age of the victim. That apart as per Section 13 of the Notaries Act, there is a bar for taking cognizance by the Court for offences committed by the advocate and notary. Under the said Notaries Act they have to obtain the permission of the Central Government or State Government for filing the charge sheet and taking cognizance. Admittedly, the petitioners are said to be Notary of the Central Government. Such being the case, as per Section 13 of the Notaries Act, the sanction is necessary or permission is necessary before filing a charge sheet and taking cognizance against this petitioner but no such permissions were obtained or produced by the Investigation Officer along with the charge sheet and also not mentioned anything about obtaining of the sanction in the charge sheet. Such being the case conducting criminal proceedings against these petitioners/accused Nos. 8 and 10 requires to be quashed."
19. No precedent to the contrary was brought to the notice of this Court.
20. It is apparent from the bare perusal of the Section and its interpretation by various High Courts that the Court cannot take cognizance of the commission of the offence stated to have been committed by the Notary except upon a complaint made in writing by the officer authorized by the Central or State Government. In the present case, no complaint in writing was ever made by any officer, hence, the learned Trial Court could not have taken cognizance of the commission of the offence alleged against the petitioner. The continuation of the proceedings without the complaint made by the Competent Authority would be an abuse of the process of the Court, and the same cannot be permitted.
21. Consequently, the present petition is allowed and FIR No. 06/2017, dated 07.03.2017 registered at CID Police Station, CID Branch at Shimla and consequent proceedings arising therefrom are ordered to be quashed qua the petitioner.
22. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
