Court Cannot Take Cognizance Of A Private Complaint Against Notary Public For His/Her Official Acts: Kerala HC [Read Judgment]

The Kerala High Court has observed that no court shall take cognisance of any offence committed by a notary public in exercise or purported exercise of his functions under the Act except upon a complaint in writing made by an officer authorised by the Central Government or a State Government by a general or special order in that behalf. 

Justice MR Anitha observed thus while quashing a charge sheet filed against a Notary Advocate accusing her of aiding a person to make a forged power of attorney as original. The Court said that the bar under Section 13 of Notaries Act is mandatory and if no such protection is granted to a notary it will be difficult for them to perform their acts as contemplated to be done as a notary.

The lawyer had approached the High Court contending that the registration of the crime and taking cognisance by the Judicial First Class Magistrate against her  is hit by Section 13 of the Notaries Act, 1952. Section 13(1) of the Notaries Act, is a bar in taking cognisance of any offence committed by a Notary in the exercise or purported exercise of his functions under the Act except upon a complaint in writing made by an officer authorised by the Central Government or a State Government by a general or special order in that regard. The court observed:

Whenever a question of official act of Notary comes for determination, it is the duty of the criminal court to find whether the allegations are directly concerned with his official duty or the performance which he has to do as indicated in Section 8 of the Act. The court has to apply its judicial mind and to see whether the subject matter of the complaint is the official act of a notary or is an act beyond his official performance. The unauthorised acts of a notary is also illustrated by stating commission of murder or assault of a person for causing hurt, grievous hurt etc. So if at all the allegations against the Notary is such unofficial acts or acts not connected with his/her official duties definitely the sanction under Section 13(1) need not be obtained.

Taking note of the allegations levelled against the Notary, the court further observed that a Notary is not supposed to know each and every person before him for the purpose of notifying a document in his Notarial Register. It said:

it is quite impossible for a Notary to know the genuineness of the document produced before him for attestation. The Notary is not supposed to know each and every person before him for the purpose of notifying a document in his Notarial Register. He is generally introduced to parties by persons who happen to be persons of his acquaintance. If such protection is not granted to a Notary, it would be very difficult for him to work as notary and members of public at large would be facing number of difficulties at every step. With this object Section 13 has been enacted by the Legislature as a safeguard.

So in view of the settled position of law discussed above, there would not be any room for doubt to conclude that bar provided under Section 13(1) is mandatory and no court shall take cognisance of any offence committed by a notary public in exercise or purported exercise of his functions under the Act except upon a complaint in writing made by an officer authorised by the Central Government or a State Government by a general or special order in that behalf. That is a protection given to the notary public by the rule making authority visualising the functions which a notary pubic has to exercise. Section 8 authorises a notary public to verify, authenticate, certify or attest the execution of any instrument. At that stage, he may not be knowing the genuineness of the document or the consequences which may come after the execution of the document. If no such protection is granted to a notary it will be difficult for them to perform their acts as contemplated to be done as a notary. So whenever a criminal prosecution is launched against a notary public a court should not be oblivious of the protections given to them under the Act and straight away take cognizance without verifying the nature of the complaint and formality to be complied.

Case: V.P.JYOLSNA vs. State of Kerala [Crl.M.C.No.4518 of 2014]

Coram: Justice MR Anitha

Counsel: Sr. Adv M.RAMESH CHANDER, Adv M.SASINDRAN, PP D. CHANDRASENAN 

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