Criminal Writ Petition No.1227 of 1998

8th August, 2003

Petitioner Counsel: Shri. S. R. MISHRA, Ms. JAYA JOILE
Other Counsel: Shri. A. M. SHRINGARPURE

Cases Cited:
Madhavrao Jiwaji Rao Scindia Vs. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709 [Para 13,14]

JUDGMENT

JUDGMENT :- The petitioner, who happens to be a practising advocate and Notary, is hereby praying for discharging him from criminal prosecution bearing Criminal Case No.212/1995, which is revolving around number of offences like 395, 344, 347, 365, 387, 324, 506 r/w Section 120B of Indian Penal Code.

2. It is the allegation of the prosecution that other accused kidnapped the complainant Rajendra Samarth from his house by calling him to the house of a person of his acquaintance by giving him threats. The complainant as indicated by the prosecution case, left his house and walked along with some of the accused to the house of his acquaintance. It is alleged that in the said house other accused besides the present petitioner, assaulted him, threatened him and detained him. Thereafter from that house he was taken to Akola, from Akola he was taken to Nagpur, from Nagpur taken to Chandrapur, from Chandrapur via Nasik he was taken to Raigad, from Raigad he was taken through Pune to Nasik. At Nasik, it is alleged by the prosecution, that he executed some documents purporting to the Powers of Attorney granted in favour of the some of the accused. Present applicant, accused has been roped in the prosecution by utilising provisions of Section 120B of Indian Penal Code, because the said powers of attorney have been registered in his Notarial register in presence of some witnesses. It is the prosecution case, as indicated by the F.I.R., that other co-accused had brought the notarial register to the house of some of the co-accused and in the said house the signatures of complainant Rajendra Samarth was taken by utilising force on him.

3. Shri. Mishra submitted that the F.I.R. does not show any allegations against the present petitioner. The Investigation papers also do not show his involvement as such in any of the acts alleged to have been committed by other co-accused pertaining to other main offences. He submitted that the only part which has been attributed to him is that in his notarial register six powers of attorney have been mentioned to have been noted.

4. Mr. Mishra submitted that the allegations which are made against the present petitioner, who happens to be a practising lawyer and notary, are pertaining to his work as notary. The allegations may be in respect of his misconduct and therefore, in view of provisions of Section 13 of the Notary Act, 1952 (hereinafter referred to as Act for convenience), the learned Magistrate should not have taken cognizance without a sanction from the Central Government or State Government as the case may be. He submitted that the learned trial Court should have considered this important aspect of the matter and should have discharged the present petitioner, when by an application a prayer to that effect was made to him. The learned trial Judge has misconstrued the provisions of law and rejected the application of the present petitioner for exonerating him from the said prosecution. Be that as it may, now that present petitioner is making a prayer to this Court to quash the said prosecution, as far as present petitioner is concerned.

5. Shri. Shringarpure, A.P.P. appearing for State of Maharashtra, submitted that the said register was showing that some pages were left blank and therefore, the present petitioner needs to be prosecuted in the said criminal prosecution. He submitted that the present petitioner happens to be co-accused in view of provisions of Section 120-B of I.P.C. He justifies the order passed by the learned trial Judge, who rejected the prayer of the present petitioner for exonerating him from the said prosecution. Section 120-B of I.P.C. provides :

"Sub-Section (1) whoever is a party to a criminal conspiracy to commit an offence punishable with death (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner, as if he had abetted such offence."

"Sub-Section (2) whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."

6. Here it is important to note the words which are used in Section 120-B. They are "whoever is a party to criminal conspiracy to commit an offence" as used in sub-sections (1) and (2). It means that prima facie a nexus has been established or indicated that by some overt act, such an offender was party to a criminal conspiracy to commit an offence. Such participation can be by doing an overt act or by monitoring the conspiracy being the brain of it or doing a substantial act for execution of said conspiracy. In view of all these things, if a person who does the official act happens to be charged for participating in a criminal conspiracy the prosecution is obliged to indicate by some reasonable material collected during the course of investigation that he deviated from his offical duty and that deviation was having a nexus with the criminal conspiracy in question. There has to be an intention behind that act and there has to be desire for participating in such criminal conspiracy. It should be with an intention of leading the said conspiracy ahead to its object. The complaint made, F.I.R. registered, investigation done should show that. Otherwise, anybody can be roped in by taking advantage of Section 120-B of I.P.C. If that is purported to be done, many innocent persons would be dragged in prosecution at the stake of their careers, occupations, professions, and well being at large. The Criminal Court has to be on guard in curbing misuse of application of Section 120-B or using it for the purpose of roping innocent persons in criminal conspiracy or for using it as device for taking revenge.

7. The work to be done by notary which is to be done by the Notary certified under Notaries Act, as indicated by Section 8 of the Act and the functions which are provided by Section 8, very much include to take the note of number of acts and document by virtue of Sub-Section (a), Sub-Section (g), Sub-Section (h), Sub-Section (j).

8. Therefore, the present petitioner who happens to be a Notary was entitled to take the note of said power of attorney when it was brought before him, as indicated by the statement of one Shankar Vishwakarma. Shankar Vishwarkarma happens to be witness to those documents. He has categorically stated in his statement that the had gone to the house of present petitioner for signing as a witness in respect of those powers of attorney. It contradicts the averment made in the F.I.R. by the original complainant Rajendra Samarth that the notarial register was brought to one house where he was by coercion made to sign on it. Apart from it, said complainant was taken from Nasik to Akola, Nagpur, Chandrapur, thereafter again to Raigad through Pune to Nasik. He was brought to Nasik before signing those documents and it is his say that he could not make the complaint of said detention to anybody on account of he being under the threat of other co-accused. The said story has it own value. This Court does not touch it more than necessary and touching to the point of relevancy, so far as the submissions advanced by Shri. Mishra in favour of the present petitioner are concerned. It impliedly means that the averment made in the complaint that said notarial register was brought to one house and thereafter the original complainant Rejendra Samarth was made to sign on all six documents cannot be accepted as the final version, keeping in view the statement of Shankar Vishwarkarma, which has been recorded by the Investigating Agency during the course of investigation.

9. Shri. Shringarpure submitted that some pages of the said register were found blank. If that is so that pertains to the misconduct of the present petitioner. Another allegation so far as present prosecution is concerned pertains to his alleged misconduct. Therefore, Section 13 of the Notaries Act would come in play which in sub-section (1) provides that no Court shall take cognizance of offence committed by Notary or functions purported to be exercised 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. Sub-section (2) provides that no Magistrate other than a Presidency Magistrate or a Magistrate of the First Class shall try an offence punishable under this Act.

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 Notary comes in picture, it becomes the duty of the criminal Court to see, whether, the allegation is directly concerned with his official duty or the performance which he has to do as indicated in Section 8 of 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 offical 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 of sanction, because, the said act is not connected with his official performance, like an allegation showing that notary committed the 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 Notaries Act, the notary has been alleged to have committed an offence, there is no need of having a sanction to the complaint in writing of an officer as contemplated by provisions of Section 13 of Notaries Act. But if 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 number of offences, because 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 number of offences concerned with the disposing of property, transfer of the property, sale of the property, exchange of property. He would be also coming in picture as an accused in number of offences connected with 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 person may be advocates, clerks of the advocates, or some persons who are connected with him by his profession as 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 public at large would be facing number of difficulties at every step and with this object Section 13 has been enacted by the Legislature with a foresight.

12. In the present case, the only allegation which has been deciphered in the complaint is that his notarial register was brought in the house where Rajendra Samarth was made to sign some documents under threat. But to nullify the allegations in the complaint, there is a statement of Shankar Vishwakarma, who says that he was requested to be a witness to the transaction which had taken place before the present Petitioner who happens to be a Notary and in presence of witness, he signed over that notarial register. Normally, a notary who happens to be a lawyer would not be giving a register to anybody sundry for carrying it to any place as that person wants. Being a lawyer and notary he would be observing all the seriousness attached to his work as Notary or profession of lawyer. He is expected to understand the consequences of allowing a person to take notarial register from his office or from his house to a place desired by him. Such allegations should have been considered by the trial Court in appropriate way. The trial Court should have given more importance to the statement recorded during the investigation of Shankar Vishwakarma who happens to be a witness and who stated that he went to the house of present petitioner as witness and signed a document as witness in presence of present petitioner, Notary.

13. In the matter of Madhavrao Jiwaji Rao Scindia and another Vs. Sambhajirao Chandrojirao Angre and others, reported in A.I.R. 1988 S.C. 709, Supreme Court has held that:

"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie established the offence. It is also for the Court to take in to consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is to no the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purposes is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

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 performance of his duty as such, he is likely to do some act, as requested by such person, may be as client or a person who has come for 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 knowing 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 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 it for exonerating such an accused, who happens to be a professional or performing an official duty. When such a request is made even at 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 Supreme Court in Madhavrao Scindia's case (Supra).

15. Every criminal prosecution by itself implies hardship to an indicted person in his day to day occupation which happens to be the source of livelihood. It also implies expenditure in engaging a lawyer to represent him in defending him in the trial. It also makes it necessary for such indicted person to appear in the Court on various dates. In addition to that it implies social stigma and creates a worried time for him. He is always haunted by presence of such prosecution though he may be following his daily routine of his occupation or life. The ordeals which he is to undergo in facing the trial is troublesome.

16. When there is no case for proceeding further, the criminal Court has to consider it at the initial stage when it has been requested to take cognizance of criminal complaint. Even at later stage, if a request is made by applicant, it has to be considered on in its proper perspective and has to consider its merit. If that is not done, then there would be heap of criminal cases in every criminal Court and there would be crowd of accused persons loitering in the premises of criminal Courts. Neither of it is a convenient or pleasant phenomenon. The learned trial court should have considered the strength of the material which has been collected by the Investigating Agency against the present petitioner and by giving proper weightage to it, should have exonerated him when an application was moved before it by making such a prayer. Had that been done, this Court would not have been required to pass a detailed judgment like this for meeting ends of a justice and for maintaining administration of justice flawless and continuous. Thus, the petition is allowed. The said prosecution so far as present petitioner is concerned stands quashed and the present petitioner stands exonerated. He need not attend that Court. If he has furnished any bond, it stands cancelled. Trial against other accused should be conducted in accordance with provisions of law.

Parties concerned to act upon a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.

Petition allowed.