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Jharkhand High Court · body

2014 DIGILAW 59 (JHR)

Kusum Ranjani v. State of Jharkhand

2014-01-09

R.R PRASAD

body2014
ORDER Heard learned, counsel appearing for the petitioner and learned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 22.2.2013 passed in Cr. Rev. No. 10 of 2012 whereby and whereunder Sessions Judge. Chaibasa affirmed the order dated 14.5.2012 passed by the Judicial Magistrate, 1st class, Chaibasa in Sadar P.S. Case No.8 of 2011 (G.R. No. 45 of 2011) whereunder prayer made by the petitioner for discharge was rejected. 3. It is the case of the prosecution that one Lagnu Mahali submitted school leaving certificate before the Police Inspector, in course of process of selection for appointment of constables in the District Police Force, Chaibasa. When its genuinity was suspected, enquiry was made from the said Lagnu Mahali, who admitted that date of birth has been changed by erasing the real date of birth and superimposing the date of birth recorded in other certificate. Since that document had been attested by this petitioner, a Notary Public, a case was registered not only against Lagnu Mahali but also against the petitioner as Sadar P.S. Case No. 8 of 2011 under Sections 467, 468, 420, 471, 120(B) of the Indian Penal Code against the said Lagnu Mahali as well as this petitioner. 4. Upon submission of the chargesheet, the Court took cognizance of the offence punishable under Sections 467, 468, 471, 420, 120- B of the Indian Penal Code. Thereafter an application for discharge was filed which was rejected. 5. Being aggrieved with that order, a revision application was filed which was rejected mainly for the reason that attestation of a document in the nature of, testimonial cannot be said to be part of duty of the Notary and therefore, bar as has been prescribed under Section 13 of the Notaries Act for taking cognizance would not be applicable in the case of the petitioner. That order has been challenged. 6. Mr. RP. That order has been challenged. 6. Mr. RP. Gupta, learned counsel appearing for the petitioner submits that as per the case of the prosecution itself a document which was produced by the co-accused before this petitioner, a Notary Public, was simply attested by the petitioner and this attestation made by Notary Public is very much duty business of a Notary and in that event, the petitioner being Notary Public can be prosecuted only upon a complaint in writing made by an officer authorized by the Central Government or the State Government by general or special order in this behalf by virtue of the provision as contained in Section 13 of the Notaries Act. Since the cognizance has never been taken upon a complaint filed by an officer authorized either by the Central Government or the State Government not only order taking cognizance suffers from illegality but the petitioner is liable to be discharged from the case but the Court below did not take into consideration this aspect of the matter while dealing with the matter relating to discharge and therefore, the orders passed by both the Courts suffer from illegality. 7. As against this, learned counsel appearing for the State by referring to Section 8 of Notaries Act submits that in terms of the provision of Section 8(1)(a) if a notary attests a document which is related to execution of any instrument it will come within the function of Notaries. Since the document which had been attested by the petitioner never relates to execution of any instrument, the petitioner cannot be said to have attested the document in exercise of his function under this Act. 8. In view of the conflicting stand taken on behalf of the parties, relevant provision as contained in Section 8 of the Act dealing with functions of Notaries needs to be taken notice of which reads as follows : "8. 8. In view of the conflicting stand taken on behalf of the parties, relevant provision as contained in Section 8 of the Act dealing with functions of Notaries needs to be taken notice of which reads as follows : "8. Functions of Notaries.-(1) A notary may do all or any of the following acts by virtue of his office, namely – (a) verify, authenticate, certify or attest the execution of any instrument; (b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security; (c) note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (XXVI of 1881), or serve notice of such note or protest; (d) note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters; (e) administer oath to, or take affidavit from, any person; (f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents; (g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is entitled to operate; (h) translate, and verify the translation of, any document, from one language into another; (ha) act as a Commissioner to record evidence in any civil or criminal trial if so directed by any Court or authority; (hb) act as an arbitrator, mediator or conciliator, if so required; (i) any other act which may be prescribed. (2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official sea1." 9. Further the provision as contained in Section 13 of the Act reads as follows : "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 fui1ctions 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." 10. (2) No Magistrate other than a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this Act." 10. Since the provision as contained in Section 8(l)(a) does stipulates that notary may do or verify certificate or attest execution of any instrument, a plea has been taken on behalf of the State that attestation of a document other than the document relating to 'execution of instrument will not be falling within the prescribed functions of the-Notaries but apart from that other provisions- are also there which do / speak about, function of Notaries such as Section 8(h) (b) (i) which does speak about any other act which may be prescribed. 11. Rule 11 of the Notaries Rule framed under the Notaries Act does stipulates about the transaction of business by a Notary whereby sub-rule (8) of Rule 11, of the Notaries Rule, 1956 reads as follows: "(8) The notary may- (1) draw, attest or certify documents under his official seal including conveyance of properties.;" 12. Thus, if one does take into account' the provision as contained in Section 8(hb)(i) read with Rule 11 (8)( 1) of the Notaries Rules, 1956 attestation of document other than the document relating to execution of any instrument comes within the functioning of the Notaries. In that event, cognizance of the offence could have been taken against the petitioner only on a complaint in writing made by an officer authorized by the Central Government or the State Government. 13. Admittedly, the complaint upon which cognizance has been taken against the petitioner has never been lodged by an officer authorized by the Central Government or the State Government. 14. Under the circumstances, the order taking cognizance itself be bad. 15. In that event, the Court below should have discharged the petitioner from the case but by not discharging both the Courts below have committed illegality. 16. Accordingly, the order dated 14.5.2012 passed by the Judicial Magistrate 1st Class, Chaibasa in Sadar P.S. Case No.8 of 2011 (G.R. No. 45 of 2011) and also the order dated 22.2.2013 passed by the Sessions Judge, Chaibasa in Cr.Rev. No. 10 of 2012 are hereby set aside. Consequently, the petitioner is discharged from the case. Ordered accordingly.