This blog post is about Notaries, their importance in the Indian legal system and also about a few misconceptions of functions of a Notary.
Notaries are governed under Notaries Act, 1952. Sections 8 and 13 are two of the most important sections of this act. One states the functions of a notary and the other particularly states that if a notary has been involved in any kind of misconduct in his professional capacity, then,
1) What will be the procedure to complain against such Notary ?
2) What is the protection granted to a Notary in such case ?
Meaning of Notary Public and Notarization
According Section 8 the three most important functions of a Notary are:
1. Verification
2. Attestation
3. Authentication
4. To verify is to establish the truth.
The meaning of which can be easily understood through an affidavit
Eg: Aakash has lost his Marksheet and his college is affiliated to Mumbai University(MU). MU asks to bring a Notarized Affidavit. Firstly, an affidavit is required because in such case because any random person can state verbally the facts of the case in front of the college and issue a duplicate marksheet by impersonating someone else. Thus, an affidavit is executed to declare and verify the facts. An affidavit includes name, age, address, facts of the situation. A verification clause in an affidavit typically includes “ I the above named deponennt do hereby, verify the contents of the affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein”
Here, a Notary’s function is to attest and authenticate the facts of an affidavit. Now, this could also be possible that a person impersonated as someone, declared a false identity and stood before the notary to execute the affidavit. In such case, how will the notary protect himself from such impersonations?
Here the Advocate’s function is of importance which is to verify the identity of the Deponent and on the basis of the identification of an Advocate, Notary notarizes an affidavit or any other legal document.
Let’s talk about the common misconception. Allegations and accusations are put against a notary for attesting a forged Power of Attorney but according to law, a Notary attests a legal document as a witness, Thus, Attestation means,
“Signing by a Special Witness appointed by the State or Central Government to attest the signature of any person's legal statement and that a document was signed in the presence of the Witness. A Notary’s function is not to investigate any facts of the legal document. The function of a Notary is not to draft, review or advice on any legal document.”
Section 8 of Notaries Act, 1952 is supported by this judgement i.e. Ayaz Ahmad Khan V/s State of Maharashtra. Bombay High Court in deciding for a discharge application by Notary held that,
“Notary is not supposed to know the genuineness of the party nor genuineness of the party as it is an Advocate to whom the Notary identifies who has identified the executants.”
“Section 13 of the Notaries Act would come in play which in Sub-section (1) provides that no Court shall take cognizance of offence committed by Notary or functions purported to be exercised under this Act, save upon complaint in writing made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. Sub-section (2) provides that No Magistrate other than a Presidency Magistrate or a Magistrate of the First Class shall try an offence punishable under this Act.”
Similarly, this was held by Chandmal Motilal Bora Case where in addition to interpretation of Section 13, Bombay High Court added that, “if such protection is not granted to the Notary, he would be implicated and roped in no. of affairs because no. of documents are being notarized before him in his Notorial Register. He would be involved in no. of offences concerned with no. of offences, disposing of property, transfer of the property. He would also be coming in picture as accused in no. of offences connected with no. of commercial crisis.”
Thus, the court which has been requested to take cognizance of complaint has to apply it’s judicial mind and to see whether the act which is the official Act of Notary or is at an act beyond it’s official performance.
Watch this entire video explaining the above blog post in siimple plain language.
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