Notary's Omission To Make Entry In Notarial Register Misconduct : Supreme Court

In a case where a Notary was alleged to have notarized affidavit of the petitioner in his absence, and the petitioner denied filing the special leave petition, the Supreme Court recently observed that an act or omission on part of a Notary in violation of Rule 11 of the Notaries Rules 1956 would amount to misconduct, and such Notary would be unfit to be a Notary.

"...the Notaries Act 1952 regulates the profession of Notaries. The functions and duties of Notaries are enumerated in Section 8 thereof. The transaction of business by a Notary is contained in Rule 11 of the Notaries Rules 1956. Any acts or omissions thereof, on the part of the Notary would tantamount to misconduct, and the person complained against would be unfit to be a Notary", said the bench of Justices Bela M Trivedi and Satish Chandra Sharma.

For context, Rule 11 of the Notaries Rules stipulates how a Notary shall conduct his business. As per Rule 11(2), every notary shall maintain a Notarial Register in the prescribed Form.

In the present case, the concerned Notary did not make an entry regarding attestation of the petitioner's affidavit in the Notarial Register. The same was sought to be explained as follows:

"That the Deponent has attested the Affidavit dated 19.04.2024 of one Bhagwan Singh only after identifying the signature of Bhagwan Singh by an Advocate of this Hon'ble Court...However, the attested Affidavit was taken away by the Lawyer...and he did not turn up again, and that is why, the Deponent was not able to make entry in the Notarial Register.”

Deeming it a misconduct on the Notary's part, the Court directed that the Registry send a copy of its order to the Bar Council of India and to the Government of India for appropriate action.

The Court was dealing with the case where the petitioner denied filing the SLP and claimed ignorance of advocates who represented him. The respondents had told the Court that the order impugned in the SLP put an end to criminal proceedings against the only witness in the 2002 Nitish Katara Murder case, and the SLP was filed in an attempt to continue the false case against him (without the petitioner's knowledge).

While the matter was being heard, the concerned Notary entered appearance and admitted the mistake of attesting the petitioner's affidavit in his absence, based on identification of his signatures by an advocate. Represented by Senior Advocate Sanjay Hegde, the Notary also tendered an apology to the Court.

On the day when the orders were reserved in the case, Hegde urged that the bench consider that there was no malice involved on the Notary's part. However, Justice Trivedi shot back that there was "clear dereliction of duty".

After going through the material, the Court observed in the judgment that the affidavit of the petitioner was notarized by the concerned Notary without the former being present before him and the same was submitted before the Court along with the SLP memo. Accordingly, it directed the Registry to forward a copy of the order to BCI and Govt. of India for appropriate action.

Other reports about the judgment can be read here.

Case Title : BHAGWAN SINGH v. STATE OF UP | SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 18885/2024

Citation : 2024 LiveLaw (SC) 722

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