AMAR SINGH CHAUHAN, J. - (1.) The applicant Dinesh Chandra Sinha through the present application moved under section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the impugned order dated 07.10.2009, passed by Incharge Sessions Judge, Jaunpur as well as order dated 28.8.2009, passed by Judicial Magistrate 1st Jaunpur in Case Crime No. C-14 of 2005, under sections 419, 420, 465, 467, 468, 471 IPC, Police Station Machhalishahar, District Jaunpur and further prayed to stay the aforesaid proceeding.
(2.) The facts which are requisite to be stated for adjudication of this application are that the opposite party no. 2 on 01.4.2005 filed an application under section 156(3) Cr.P.C. alleging herself to be widow of one Sri Ram Bind. On 30.12.1994, Sri Ram Bind executed a Will and the Will deed was registered in the name of the daughters of opposite party no. 2 namely Smt. Dupatti Devi and Usha Devi and on the basis of said registered Will the name of opposite party no. 2 was got mutated in revenue record. It is also alleged that after the death of husband of opposite party no. 2 on 27.6.1999, her nephew Vijay Lal son of Pati Ram made conspiracy and prepared a forged notary Will by forging thumb impression of her husband. Thus indulgence of the Court was sought for direction to the police for investigating the said offence which is said to have been committed by Vijay Lal and his associates namely Ashok Kumar and Rama Shankar Yadav. Submission of learned counsel is that applicant is not named in the application moved under section 156(3) Cr.P.C. which was allowed and case was registered as Crime No. C-14 of 2005, under sections 419, 420, 465, 467, 468, 471 IPC at Police Station Machhalishahar, District Jaunpur on 10.8.2005. After concluding the investigation the Investigating Officer submitted final report against which protest petition was filed thereupon the further investigation was ordered. Ultimately, police submitted charge-sheet against three persons namely Vijay Lal, Rama Shankar and Ashok Kumar in the year 2007. Applicant was not charge-sheeted as such applicant was not affected by the aforesaid case in any manner whatsoever. However, to the utter surprise to the applicant, investigating agency, without collecting any further evidence or any evidence whatsoever either documentary or oral, submitted a supplementary charge-sheet naming applicant as accused in the above noted case. At this stage, it is relevant to point out that the applicant is a practicing Advocate and was enrolled as an Advocate by Bar Council in the year 1968. He is practicing at Machhalishahar in the revenue side where there has been Court of Sub-Divisional Magistrate and the Tehsildar. In the year 1989, applicant was appointed as Notary under the Notaries Act, 1952 and since then he has been regularly performing his duties as Notary. His name as Notary was thus duly entered into register maintained under the Notaries Act, 1952 entitling him to practice as Notary and perform his duties as such. The basic allegation against the applicant in the present case relates to his functioning as Notary whereby he had verified and certified execution of said instrument purporting to be Will of Sri Ram Bind. It appears that the aforesaid Will of Sri Ram Bind was presented before him as Notary and on the said document/instrument, one Kunwar Bharat Singh, Advocate of Machhalishahar had identified him. It is also categorically submitted that at the time when the aforesaid document was presented before the applicant for authentication, no photograph was affixed. Thus, applicant has acted only upon identification of thumb impression which was done by an Advocate of Machhalishahar, who was also known to the applicant. In fact, neither there is any allegation nor there is any evidence that the applicant being a Notary had any knowledge whatsoever to the effect that the said document is not a genuine document. The applicant was performing his duties with utmost sincerity and under the bona fide discharge of his duties only verified by authenticating said document. Such functioning was discharged by the applicant in exercise of his duties as contemplated under Section 8(1)(a) of the Notaries Act, 1952. Thus, act of the applicant was duly covered by virtue his office of Notary that he was having been duly appointed by the Government of Uttar Pradesh.
(3.) Learned counsel for the applicant submitted that by way of the present application, the applicant has challenged the order dated 28.8.2009, passed by the Judicial Magistrate 1st Jaunpur in Case No. 207A of 2008, arising out of Crime No. C-14 of 2005 (State vs. Dinesh Chandra) rejecting application of applicant seeking discharge in criminal case hereinafter detailed as well as order dated 07.10.2009, passed by Incharge Sessions Judge, Jaunpur. It is further submitted that learned Magistrate rejected the discharge application moved by the applicant against which revision was summarily dismissed. In fact, above noted order of the court below are wholly illegal and without jurisdiction inasmuch as applicant's prosecution in the aforesaid crime, was only misconceived and has been initiated in flagrant violation of law. The Magistrate was not competent to take cognizance of offence when act of the applicant was duly performed and done in exercise of his function under Notary Act, 1952. It is also submitted that no complaint has been made by any officer either by Central Government or by the State Government or by general or special order. In absence of any complaint, the prosecution in the above noted case, are ab initio void and illegal. The applicant has neither forged any document nor has committed any cheat as defined under Section 415 IPC nor has committed any offence as defined under Sections 419 and 420 IPC. The applicant was neither author of the said document nor was supposed to be in any manner beneficiary from the creation of the said Will. The prosecution of the applicant for the offence in question is thus nothing but is abuse of the process of the court.;