Important Point
Subsequent compliance cannot cure defect in law.

N.V. Anjaria, J.

1. Rule. Learned Additional Public Prosecutor Mr. K.P. Raval waives service of notice of Rule on behalf of the respondent-State.

1.1. In the facts and circumstances of the case, having regard to the compass of the matter and with consent of both the learned Advocates, this Revision is taken up for final consideration, making Rule returnable forthwith.

The petitioner, practising as Notary Advocate, has brought under challenge order dated 8-1-2015 passed by learned 3rd Additional Sessions Judge, Junagadh, whereby the Sessions Judge dismissed application below Exh. 22 of the applicant-accused for his discharge under Sec. 227 of the Code of Criminal Procedure, 1973.

2. Briefly stated, the facts are that the First Information Report being C.R. No. 1-3 of 2011 dated 30-1-2011 came to be registered with Mangrol Police Station, Junagadh in respect of offences punishable under Secs. 363, 366, 376, 466, 471, 465 and 114 of the Indian Penal Code. The complainant mother stated that a fare was organized nearby their village and they had gone their to sell their goods and material on 10-4-2010. Therefrom on the said date, that is, 10-4-2010, her daughter was found missing. On 30-1-2011, she had gone to Veraval Railway Station to receive a relative. At that time, she showed her daughter who had disappeared on 10-4-2010 stepping down from the train with a kid in her hand and she was accompanied by a boy aged 22-25 years. The complainant rushed to her daughter and asked her about boy who had by the time eloped. The daughter stated that she had married with the boy named Sanjay Chandubhai Solanki and the child was borne out of the wedlock. The girl stated that the marriage was executed by executing stamp paper through the Notary. Attributed with the aforesaid role, the applicant-Notary was arraigned as accused No. 5.

2.1. Sessions Case No. 94 of 2012 came to be registered, in which, the applicant-accused No. 5 submitted an application below Exh. 22 seeking his discharge, stating inter alia that he was having a sanad to practise law, had been practising lawyer since 5-5-1991 and was also a Notary Public appointed by the Central Government under Notary Certificate No. 6836. The discharge was sought on the ground that the cognizance of alleged offence could not have been taken because Sec. 13 of the Notaries Act, 1952 was not complied with. Learned Additional Sessions Judge rejected the application by passing following operative order:

"This application is rejected. It will be open for the Investigating Officer to get sanction as per Sec.13 of the Notaries Act from the concerned Authority. D.G.P., Gandhinagar may take explanation from the concerned Investigation Officer in Charge-sheet No. I-6B/2012 dated 17-4-2012 in F.I.R. No. 1-3 of 2011 dated 30-1-2011 registered at Mangol Police Station, Junagadh, the Investigating Officer being Mr. P.V. Gohil, Circle Police Inspector, at the relevant point of time."

3. Learned Advocate Mr. Ashish Dagli for the applicant submitted that in view of provisions of Sec. 13 of the Notaries Act, 1952 (hereinafter mentioned as "the Act"), the Court was debarred from taking cognizance of any offence alleged against Notary. He submitted that the complaint could have been filed by officer authorized by Central Government or State Government. Learned Advocate relied on decision of this Court in Ashokbhai Rameshchandra Ghantivala v. State of Gujarat, 2009 (2) GLH 491.

3.1. On the other hand, learned Additional Public Prosecutor Mr. K.P. Raval supported the order of learned Additional Sessions Judge by submitting that it is kept open for the Investigating Officer to get sanction as per Sec. 13, therefore, the impugned order is not required to be interfered with. He submitted that the sanction can be taken subsequently also. In the next, he relied on decision of this Court in case of the applicant himself being Misc. Criminal Application No. 1934 of 2011 which was filed under Sec. 482 of the Code of Crimina