Orissa High Court Orders Regular Training Of Notaries, Inspection Of ‘Notary Registers’ By District Judges Twice A Year

While taking judicial notice of extra-legal practices adopted by Notaries, the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash observed,

“There are a number of decisions of the Hon’ble Apex Court, this Court as well as other High Courts from which it is palpably discernible that most of the notaries are not aware of their duties and functional limits.”

Case Background

The Court was hearing a criminal writ petition filed by a man seeking issuance of writ of habeas corpus to get back the custody of his wife who was allegedly illegally detained by her family members.

In the petition, the petitioner averred that he and his wife got married on 19.04.2023 by executing a marriage declaration certificate before a Notary. Noticing the fact that the marriage was registered not by any authorized Registrar of marriages rather by a Notary Public, the Court had expressed its anguish.

Last month, while hearing the case, the Court had reiterated that Notaries are not legally authorized to register marriages and had held:

“Time and again Courts across the country have echoed it in identical voice that Notaries are neither authorized to issue certificates of marriage nor they are legally entitled to notarize any signed declaration of marriage, which is apparently beyond the scope of their functions prescribed under section 8 of the Notaries Act, 1952 (Act no. 53 of 1952).”

The Court had also directed the concerned Notary Public to appear in person before it and to explain as to on what basis he allowed execution of the marriage declaration before him and under what authority he attested the same.

The said Notary appeared in person and also filed an affidavit stating that due to his ignorance about various judgments of the Supreme Court as well as the High Court, he mistakenly believed himself to be authorized to register marriages and accordingly, notarized the document.

The Court had queried the Notary as to whether he verified any documentary proof like photographs or videos of the marriage ceremony before notarizing the marriage declaration certificate, to which he had informed that the couple had married in a local temple before approaching him for the certificate.

The Court had then ordered the jurisdictional police to visit the temple and to inquire about the veracity of the claim that marriage between the petitioner and the lady in fact took place on the said date. The police, after inquiring from temple authorities, informed the Court that no such marriage took place in that temple on the said date.

The Bench had also asked the State Counsel to contact the lady through a female police officer to interrogate her. After such interrogation, the lady conveyed the Court in a letter that she is living happily with her parents and there is no compulsion or illegal confinement. However, she admitted to have signed the marriage declaration certificate before the Notary.

As it was clear from the written statement of the lady that she is not illegally confined by her family members against her will and as there is no legal validity of marriage before a Notary, the Court denied to extend any relief to the petitioner by issuing the writ of habeas corpus.

Regular Training For Notaries

In course of the hearing, the Court asked the Notary if he has undergone any training programme before being inducted as a ‘Notary Public’, to which he answered in negative. The Court also candidly queried as to whether Notary seals are provided by the Government or they prepare the same on their own. The Notary fairly submitted that he has prepared his seal on his own after taking guidance from a senior Notary.

“We find the issue to be a grave one as actions of Notaries can affect rights and lives of common people who do not have fair understanding of law. Issues like the present one reminds this Court of the loopholes that the incumbent system possesses and inaction on the part of the Government to cure these shortcomings can cause severe prejudice to the rights of innumerable citizens,” the Court observed.

Therefore, it directed the State Government to arrange training programme for the notaries of the State on a regular basis, either through physical or virtual mode and also to issue guidelines to apprise them of their functions and duties as has been laid down under Section 8 of the Notaries Act, 1952 and what to do and what not to do.

Inspection Of ‘Notary Registers’ By District Judges

The Court also noted that sometimes deponents do not appear in person to swear affidavits, rather when documents and typed affidavits are produced before the Notaries, either by advocates or by their clerks, they notarize/attest the same without verifying identity proof or insisting for personal appearance of the deponents, which is against the mandate of law.

“Not only the notaries are required to maintain the register in terms of the aforesaid Notaries Act and Rules but also they are expected to maintain on which date, an affidavit or any document was notarized before them and the signatures of the party swearing the affidavits are also required to be taken with date which would be the proof that the person concerned in fact appeared before the Notary Public on a particular day to swear the affidavit,” the Court clarified.

The Bench referred to Rule 11(5) of the Notaries Rules, 1956 which requires Notaries to permit District Judges or such officer as the appropriate Government may time to time appoint on this behalf to inspect their registers not more than twice a year.

“…the District Judge or officer appointed by the State Government will have power to lodge a report to the appropriate government for taking action against a notary. This procedure should be followed strictly to see that the Notaries carry out their functions in accordance with the Act and Rules,” it ordered.

The Bench asked the Government Counsel to communicate the order to the Principal Secretary, Department of Law, Government of Odisha for compliance of the directions.

Directing the above, the Court accepted the unconditional apology tendered by the Notary. It also accepted the affidavit filed by him vowing not to repeat the same mistake ever again in the future.

Accordingly, the criminal writ petition was disposed of.

Case Title: Partha Sarathi Das v. State of Odisha & Ors.

Case No.: WPCRL No. 70 of 2023

Date of Order: October 10, 2023

Counsel for the Petitioner: Mr. Pravash Chandra Jena, Advocate

Counsel for the Respondents: Mr. Arupananda Das, Addl. Govt. Advocate; Mr. Chittaranjan Swain, Advocate for the Notary

Citation: 2023 LiveLaw (Ori) 107