VIJAYAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a lawyer by profession, having 38 years of practice in Kozhikode. He is also a Notary Public. Now he has been arrayed as the fifth accused in Crime No. 189/2011 of Kodenchery police station, which was registered as early on 1/10/2011 on the unnatural death of one Roy Thomas, son of Tom Thomas. That crime was registered under Sec. 174 of the Code of Criminal Procedure after the said Roy Thomas was found lying unconscious in the toilet, who was removed to the hospital where he died and his death was taken as a case of suicide and the proceedings were closed in 2011 itself. Later in 2020, in the backdrop of a series of deaths in Ponnamattam house, house of the husband of Jolly Roy, the prime accused, the case was reopened and thus on conclusion of further investigation, charge sheet was laid against four persons alleging offences under Ss. 110, 465, 471, 474, 302 and 201 of the Indian Penal Code and under Sec. 2 read with Sec. 6(2) of the Poisons Act 1919. At that time, the statement of the petitioner was also recorded as the Notary who had attested a Will deed executed by Tom Thomas, father of Roy Thomas, husband of Jolly Roy. Later, on the basis of some revelations, it came out that the petitioner also had joined the criminal conspiracy with the other accused persons, especially, the first accused and the fourth accused, and on that basis, after getting sanction issued by the Law Secretary, offence under Ss. 120B, 468 read with 34 of the IPC is alleged against him, who is now the fifth accused. The petitioner has approached this Court for quashing the proceedings under Sec. 482 of the Cr.P.C.

(2.) I heard the learned counsel for the petitioner and also the learned Special Public Prosecutor.

(3.) The learned counsel for the petitioner submits that earlier he was CW156 in the original charge sheet, that on completion of investigation and following committal proceedings the case reached the Sessions Court, Kozhikode as S.C. No. 496/2020. There the statement of the petitioner was recorded under Sec. 161 of the Cr.P.C. He had also given statement under Sec. 164 of the Cr.P.C. and the said attestation of the Will was done way back on 30/6/2008. There is absolutely no basis in arraying him as one of the accused persons. He is totally innocent, that even if the allegations in the charge sheet are accepted on its face value, there is absolutely no materials available before Court that he was part of a criminal conspiracy at any point of time. The crime has been registered on the death of Roy Thomas and the attestation of the Will deed produced by the first accused along with the fourth accused before him has no bearing in the allegations against the other accused persons. The allegation that he had conspired with other accused and facilitated to forge a false Will of Tom Thomas, that would give rise to a different cause of action and has nothing to do with the allegations in Crime No. 189/2011 of Kodenchery police station. Petitioner had not shared any culpable mental state at the time of attesting the document. The only reason for implicating him is that he had not seen the original document while attesting the same. It is only a malafide attempt to harass him, that such a prosecution will not lawfully sustain against him. Relying on the decision reported in Jyolsna V.P. v. State of Kerala and Another [2020 (6) KHC 334], the learned counsel submitted that in the absence of a complaint as provided under Sec. 13 of the Notaries Act, the proceedings will not lie against him. It may be true that the Law Secretary had accorded sanction and permitted the Dy.S.P. to file criminal complaint against the petitioner. But what is filed is a final report/a charge sheet which is not a complaint as provided under Sec. 13(1) of the Notaries Act. In this connection, he has relied on a Division Bench decision of this Court in Ismayil v. State of Kerala [2010 (3) KLT 706].