The protection under Section 13 of the Notaries Act 1952 would not be available to the notary as the act of forgery and cheating did not fall within the functions of the notary under the Act.

JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.

3. In this criminal writ petition, filed under Article 226 read with Article 227 of the Constitution of India, the petitioner who is the informant in the Crime bearing No. 29 of 2013 registered at City Kotwali Police Station Amravati, has challenged the order dated 13.10.2020 passed by the learned Chief Judicial Magistrate, Amravati, whereby the learned Chief Judicial Magistrate discharged accused No.5-Smt. Laxmi Hemant Pangarkar from the said crime bearing No. 29 of 2013 for the offences punishable under Sections 420, 467, 471, 472 read with Section 34 and Section 120 B of the Indian penal Code (hereinafter referred to as ‘IPC’).

4. The facts leading to this writ petition are as follows:

The informant was married to Hitesh Khandelwal. He died on 27.10.2009. After the death of Hitesh Khandelwal, she got married to one Manish Khuteta on 04.12.2012. In the Crime bearing No.29 of 2013 there are eight accused. The accused No.1 is the brother of deceased Hitesh Khandelwal. The accused No. 2 is the mother of Hitesh Khandelwal. Accused No. 5 is a practicing Advocate and notary public. According to the informant, after the death of husband Hitesh Khandelwal, she was entitled to get share in the joint family property. It is alleged that in order to divest her of her share and right in the property, the accused hatched a conspiracy. The property was in the name of her father-in-law – Mr Ratanlal Khandelwal.

5. It is stated that her father-in-law deceased Ratanlal Gopinath Khandelwal was admitted in ICU section of Dr. Patankar Hospital, Shrikrushnapeth, Amravati on 10.01.2009. Deceased Ratanlal was paralyzed and was in coma. He was on ventilator. He did not regain consciousness and ultimately died on 29.01.2009. It is alleged that the accused persons pursuant to the conspiracy forged the will deed dated 16.01.2009. It is alleged that the deceased was admitted in ICU. He was on ventilator. He was unconscious. In this condition, the will deed was prepared. It was prepared with a view to cheat the informant. On the basis of the report, lodged by the informant, the investigation was conducted. The investigation prima facie revealed the commission of offence of forgery of will deed of the deceased by all the accused persons with a view to cheat the informant. As far as accused No. 5-the notary is concerned, it is the case of the prosecution that she was part of conspiracy and she tried to give an authenticity to the will deed by attesting the will deed.

6. After filing of the charge-sheet, the accused No. 5 made an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’). It is contended that accused No. 5 was not scribe of the will deed. The informant had no right over the property of deceased-Ratanlal. The informant was aware that the deceased executed the will with his free consent. Deceased did not challenge the will deed during his lifetime. There was no question of any fraud or forgery.

7. It is contended that the act alleged to have been committed by accused No. 5 was pertaining to her official act as notary. She notarized the document by following the due process and rules. It is further contended that as per Section 13 of the Notaries Act, 1952 (hereinafter referred to as ‘the Act of 1952’) the notary has exemption from the prosecution. In this case, the cognizance of the offence was taken by the Magistrate contrary to the mandate of Section 13 of the Act of 1952. It is stated that act alleged to have been done was in the exercise or purported exercise of functions under the Act of 1952. Therefore, in the absence of complaint by the authorized officer of the Central Government or State Government, the learned Magistrate was not empowered to take the cognizance. On these averments, the accused No. 5 prayed for her discharge.

8. The investigating