[Koodathayi Murder] 'Police Report Not A Complaint As Mandated U/S 13 Of Notary Act' : Kerala HC Drops Proceedings Against Notary

The Kerala High Court has quashed the proceedings initiated against a Notary Public who is the 5th accused in the murder of Roy Thomas, one of the series of murders popularly known as the 'Koodathayi murder case' where six members of a family were killed over a span of 17 years by administering cyanide in their food.

The petitioner was accused of attesting a forged will deed executed by the deceased's father, thereby joining the criminal conspiracy with the other accused persons.

Justice K. Haripal observed that there was no case that the petitioner was part of the criminal conspiracy for murder and that proceedings could have only been initiated against him independently.

"Even though the act of the petitioner is attesting a document without seeing the original or as per the advices of one of the accused is reprehensible, it is not known as to how such an act could be clubbed with the allegations of murder. It seems that, even the prosecution has no case that he was also party to the criminal conspiracy to end the life of Tom Thomas or Roy Thomas. In the circumstances, proceedings could have been initiated against the petitioner independently, without clubbing the case with the murder case."

However, the court clarified that the petitioner's acts were unbecoming of a lawyer having long years of practice. 

"I have no doubt that the role played by the petitioner is not becoming to a Notary Public or a lawyer having long years of practice."

Advocates S. Rajeev, K.K Dheerendrakrishnan, D. Feroze and K. Anand appearing for the petitioner had argued that he had not shared any culpable mental state at the time of attesting the document and that the only reason for implicating him is that he had not seen the original document while attesting the will. 

Moreover, it was submitted that in the absence of a complaint as provided under Section 13 of the Notaries Act, the proceedings will not lie against him. They also pointed out that what was filed is a final report/a charge sheet which is not a complaint as provided under Section 13(1).

Thereby they sought for the proceedings to be quashed 

Additional Public Prosecutor P. Narayanan and Special Public Prosecutor S.U Nazar appearing for the State resisted the petition. 

The Single Judge noted that the petitioner was discharging his functions as a Notary as provided under Section 8 of the Notaries Act which implies that Section 13(1) of the Act applies in this case.

Section 13 (1) imposes a statutory injunction on the court in taking cognizance of the offence committed by a Notary in exercise or purported exercise of his functions under the Act, without a complaint in writing made by the officer authorised by the appropriate Government. 

However, in this case, the prosecution was relying on a Government Order where the Law Secretary had authorised the DySP to file a complaint against the petitioner. What was later filed by the police was a final report. 

The Court noted that this government order cannot salvage the situation and remove the bar under Section 13(1) since a police report does not come under the definition of a 'complaint' under the CrPC. 

Therefore, it was found that the proceedings initiated against the petitioner are bad and are barred under Section 13(1) of the Notaries Act and they were consequently quashed. 

However, it was clarified that this order will not stand in the way of the Investigating Officer filing a complaint proper against the petitioner in accordance with law, obeying the mandate under Section 13(1) of the Notaries Act.

As such, the petition was disposed of. 

In a related development, a Sessions Court on March 10 dismissed a bail plea moved by Jolly Joseph, the prime accused in the Koodathayi serial murder case.

Case Title: Vijayakumar v State of Kerala

Citation: 2022 LiveLaw (Ker) 159

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