Chh HC | Order taking cognizance of offence under Ss. 420 and 120-B IPC against Advocate for authenticating an agreement set aside in light of S. 13(1) of Notaries Act

Chhattisgarh High Court: Sanjay K. Agarwal, J. allowed a petition filed by an advocate against the order of Judicial Magistrate (First Class) whereby cognizance was taken against him, along with other accused persons, for the offences punishable under Section 420 read with Section 120-B IPC.

The petitioner was working as a Notary, and while discharging his duties under the provisions of the Notaries Act, 1952 and the Rules made thereunder, he authenticated an Agreement in presence of two witnesses. Thereafter, the complainant filed a complaint against accused persons including the petitioner, alleging the commission of the abovesaid offences. Subsequently, the Judicial Magistrate passed the impugned order.

Abhishek Sinha, Advocate for the petitioner contended that such a cognizance taken was expressly barred by the provisions contained in Section 13(1) of the Notaries Act which are mandatory in nature.

The High Court was of the view that the use of negative form provides a mandatory character to the provisions of Section 13(1). Section 13(1) clearly bars the act of taking cognizance of any offence against the Notary in exercise or purported exercise of his function under the Act except upon a complaint in writing made by an officer authorised by Central Government or State Government by general or special order. In the present case, the petitioner, while authenticating the said Agreement was performing his statutory duty within the provisions of Section 8(1)(a). Therefore the Court was of the view that the bar under Section 13(1) would squarely be attracted. In the absence of a complaint as provided for under Section 13(1), it was held that order of the Judicial Magistrate was unsustainable and was thereby set aside to the extent applicable on the petitioner. The petition was thus allowed. [Rajkumar Mishra v. Gurjeet Kaur Bajwa, 2019 SCC OnLine Chh 48, decided on 13-05-2019]

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