Introduction:

In Malu K. versus State of Kerala and Others, the Kerala High Court examined the legality of criminal proceedings initiated against a practicing lawyer who was also functioning as a notary public and who had been arrayed as the third accused in a case alleging forgery and use of fabricated documents, and the Court was called upon to decide whether criminal courts could take cognizance of alleged offences said to have been committed by a notary while performing official notarial functions without a complaint being filed by an officer authorized by the appropriate government as mandated under Section 13(i) of the Notaries Act, and Justice C. Pratheep Kumar, after carefully analyzing the statutory scheme, clarified that the legislature has created a specific procedural safeguard for notaries in recognition of the public nature of their duties and that any deviation from this statutory requirement would render the entire prosecution unsustainable, and the Court noted that the petitioner had been practicing law and had been appointed as a notary public, and that the allegation against her was directly connected with the attestation of a consent letter in her capacity as a notary, thereby squarely attracting the protection under Section 13(i), which requires that prosecution can be initiated only on a complaint by an officer authorized by the government concerned, and in the absence of such complaint the criminal process itself becomes legally barred at the threshold.

Arguments:

The petitioner argued that the criminal proceedings were vitiated because the mandatory precondition under Section 13(i) of the Notaries Act had not been complied with, and that the police had registered the crime and the prosecution had proceeded without any complaint from an officer authorized by the State Government, which was a jurisdictional defect and not a mere procedural irregularity, and it was further submitted that the alleged acts were intrinsically linked to the performance of notarial functions, since the allegation was that the petitioner had attested a consent letter which was later alleged to be fabricated, and therefore the statutory protection squarely applied, and reliance was placed on earlier precedents including Jolsna E.P. v. State of Kerala and Another, where the High Court had already held that compliance with Section 13 is mandatory and that cognizance taken in its absence is illegal, and the petitioner also emphasized that the object of the provision is to protect notaries from vexatious litigation arising out of acts done in the course of public duty and to ensure that only cases vetted by the government are prosecuted, while the prosecution alleged that accused persons one and two had created a fabricated consent letter in 2021 purportedly executed by the de facto complainant and that with the help of the petitioner the document was attested and later used before the Kozhikode Corporation to obtain a license for running a cool bar and bakery, and on this basis offences under Sections 465, 468 and 471 of the Indian Penal Code were alleged, and the State contended that serious allegations of forgery and cheating were involved and that the matter should proceed to trial, but significantly the prosecution did not dispute that no complaint had been filed by an officer authorized by the government under Section 13(i), nor did it establish that the alleged act was outside the scope of notarial functions, and therefore the central legal objection raised by the petitioner remained unanswered on facts and law.

Court’s Judgment:

The High Court held that Section 13(i) of the Notaries Act creates a clear statutory bar against courts taking cognizance of offences alleged to have been committed by a notary while exercising functions under the Act unless a complaint is made by an officer authorized by the government concerned, and Justice C. Pratheep Kumar observed that the petitioner was admittedly acting in her capacity as a notary when the consent letter was attested, which meant that the alleged act fell within the domain of notarial functions, and therefore the procedural safeguard under the Act was fully attracted, and the Court reiterated that this safeguard is not optional or directory but mandatory, since it goes to the root of the jurisdiction of the criminal court to even entertain the matter, and by relying on the earlier decision in Jolsna E.P. v. State of Kerala and Another, the Court reaffirmed that failure to comply with Section 13(i) vitiates the entire prosecution irrespective of the nature of allegations, and the Court also highlighted that statutory protections for public functionaries are designed not to shield wrongdoing but to ensure that prosecution is filtered through responsible governmental scrutiny so that honest discharge of public duties is not discouraged by fear of criminal litigation, and in the present case since no authorized complaint had been filed, the continuation of criminal proceedings was held to be illegal, and therefore the Court allowed the petition and set aside all further proceedings against the petitioner arising from the registration of the crime, thereby restoring the principle that where the law prescribes a particular manner for initiating prosecution, that manner alone must be followed and any shortcut taken by investigative agencies cannot be cured by later stages of the criminal process.