Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 93 (GAU)

Dibyajyoti Saharia v. State of Assam

2017-01-19

PARAN KUMAR PHUKAN

body2017
JUDGMENT : PARAN KUMAR PHUKAN, J. 1. By filing this application under Section 482 of the CrPC, the petitioner has challenged the impugned order dated 23.05.2016 passed by the learned Chief Judicial Magistrate, Darrang, Mangaldoi, in G.R. Case No. 1682/2015 whereby, the learned Chief Judicial Magistrate has take cognizance against the petitioner and other under Sections 197/198/419/420/468/471/423/34 of the IPC. 2. Heard Mr. A. Paul, learned counsel for the petitioner and Mr. S. Chauhan, learned counsel appearing for the respondent No. 2. Also heard Mr. N.K. Kalita, learned Addl. Public Prosecutor, Assam. 3. It is submitted by Mr. Paul, learned counsel for the petitioner that the petitioner is an advocate-cum-Notary by profession. As. per Section 13(1) of the Notaries Act, 1952, no Court shall take cognizance of any offence committed by a Notary in the exercise of purported exercise of his functions under this Act, save upon complaint in writing made by an officer authorized by the Central Government or the State Government by the general or special order in this behalf. 4. The accusation against the accused petitioner in the instant case is that he being a Notary in connivance with the other accused persons got a sale deed executed an thereafter, notarized the same by himself by showing the same to have been executed by one Anil Deka, who in fact did not put his signature in the said instrument but his son Bikash Hazarika allegedly put signature in the name of his father. 5. The learned counsel submits that the petitioner is an advocate and Notary public and the Court has committed an error in taking cognizance of the offence and directing issuance of process to the petitioner. He also submits that the FIR does not disclose any offence said to have been committed by the petitioner. 6. In controversion, Mr. N.K. Kalita, learned Additional Public Prosecutor, has submitted that the accused petitioner knowing fully well facilitated the other accused persons to get the deed executed and he being a Notary should not have identified the persons without knowing them and notarized the deed of sale. 7. It is undisputed fact that the petitioner is a Notary appointed under the Act, and he has been functioning as a Notary in Darrang district. 7. It is undisputed fact that the petitioner is a Notary appointed under the Act, and he has been functioning as a Notary in Darrang district. In the complaint itself, it is specifically mentioned that the petitioner had signed in the purported sale deed as a Notary and he also affixed his seal under his signature. 8. Under these circumstances, he is governed by Section 13 of the Act. For ready reference Section 13 is reproduced below:- "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 authorized by the Central Government or a State Government by general or special order in this behalf. No Magistrate other than a presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this Act." 9. In the instant case, the allegation against the accused petitioner undisputedly are in the exercise or purported exercise of the offences under the Act but there is no written complaint by an officer who is authorized by the Central Government or the State Government either by general or special order, empowering to file the complaint and the complaint came to be filed by the complainant in his/her individual capacity. 10. From what has been discussed and from the facts and circumstances of the case, it is apparently clear that the complaint was filed against the petitioner by a person who is not authorized under the Act to file the same. 11. Consequently, in my considered view, this is a fit-case to quash the FIR and all consequential proceedings against the petitioner in exercise of the power under Section 482 of the CrPC and accordingly, the proceedings in respect of the petitioner stands quashed. The complainant ought to have approached the authorities, if any, for redressal of her grievances and she is still at liberty to do so. 12. The petitioner is allowed to the extent indicated above.