Notary immune from prosecution for official acts without authorized government complaint under Section 13(1) Notaries Act.

ORDER

The petitioner is the 2^nd accused in C.C.No.724/2024 on the file of the Court of the Judicial First Class Magistrate, Kodungallur, (Trial Court) which has originated from Crime No.175/2024 registered by the Kaipamangalam Police Station, Thrissur, alleging the commission of the offence punishable under Sections 420 , 465, 468, 471 and 201 read with Section 34 of the Indian Penal Code, 1860 .

2. The petitioner has stated in the criminal miscellaneous case that, she is a Notary Public and Advocate by profession. She has been arraigned as the 2^nd accused in the crime on the sole allegation she had notarised a consent letter of the 3^rd respondent (defacto complainant), which was forged by the 1^st accused. The petitioner has only done a notarial act in exercise of the powers conferred on her under the Notaries Act, 1952 , (‘Act’, in short). In view of Section 13 (1) of the Act, no Court shall take cognizance of an offence committed by a Notary in exercise of his functions under the Act, except on a complaint in writing by an officer authorised by the Central/State Government by general or special order in that behalf. As the instant crime has been registered on the basis of a complaint filed by the 3^rd respondent, the criminal proceedings as against the petitioner is unsustainable in law and, therefore, may be quashed.

2. I have heard, the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 3^rd respondent.

3. The gist of the prosecution case in Annexure A3 final report is that, the 1st accused with an intention to cheat the defacto complainant and make unlawful loss to him, and make unlawful gain for herself had fabricated a consent letter dated 25.10.2023 of the 3^rd respondent stating that he had given his consent to the 1^st accused to use a pathway through his property comprised in Survey Nos. 65/4-2, 65/4-7 and 65/4-8 at Onamparambu in Perinjanam. The said consent letter was attested by the petitioner, without verifying whether the document was executed by the 3^rd respondent. Consequently, the 1^st accused presented the consent letter before CW2 and thereafter she burned and destroyed the consent letter.

4. It is the petitioner’s specific case that, she has done a notarial act by only attesting the signature on the consent letter. The petitioner was unaware that the consent letter was forged by the 1^st accused. Therefore, the petitioner is immune from the prosecution on the basis of a police report.

5. In the above context it is profitable to refer to Section 13 (1) of the Act, which reads as follows;

“ 13. 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.”

6. A bare reading of the above provision substantiates that no Court shall take cognizance of any offence committed by a Notary Public, in exercise of his powers under the Act, other than by a complaint made in writing by the authorised officer of the Central/State Government.

7. In the case at hand, undisputedly, the crime has been registered on the basis of the complaint given by the 3^rd respondent to the Investigating O registered Annexure A2 FIR and then filed Annexure A3 final report, without following the statutory mandate under Section 13 (1) of the Act.

8. The learned counsel for the 3^rd respondent does not dispute to the fact that the only act done by the petiti