Anowar Hussain vs. Ajoy Kumar Mukherjee & Ors., AIR 1965 SC 1651
Pankaj Manu VS. State of
Shri H. V. Bhatia VS. State of
Soniya @ Sohan & Ors. VS. Nanga & Ors., S.B. er. Misc. Petition No. 797/1988, decided on 8.11.1988
, State of
~ Mr. Govind Narain Sharma, for the petitioner
~ Mr. Ashwani Kumar Sharma, Public Prosecutor
Khem Chand Sharlma, J.-Through this petition u/&. 482 of the Criminal Procedure Code, the petitioner seeks to quash the first information report No. 90/1998 registered against him and others at Rajasthan State Bureau of Investigation, Jaipur for offence u/ss. 5(l)(d)(2) of the Prevention of Corruption Act and u/ss. 467, 468, 471 & 477 -A read with Sec. 120-B IPC.
2. Petitioner Santu Lal Sharma, was serving as Assistant Settlement Officer in the settlement department. On the basis of the report submitted by Dy. Superintendent of Police, Rajasthan State Bureau of Investigation on 25.07.1998 first information report No. 90/1998 for offence u/ss. 5(1)(d)(2) of the Prevention of Corruption Act, 1947 and u/ss. 467, 468, 471, 477-A read with 120- B IPC came to be registered against him and others regarding illegal transfer of certain Sjwai Chak land belonging to the Government in the names of Gajveer Singh and Madan Lal, ignoring the orders issued by the Settlement Commissioner from time to time. The case as set out in the FIR was that the petitioner while posted as Assistant Settlement Officer, in collusion with Surajmal Gurjar, Amin and Ramavtar Sharma, Inspector, transferred the Siwai Chak land comprising of old Khasra Nos. 7,8,9, 14, 15, new Khasra Nos. 25, 27,28,29, 30, 31, 32, 33, 34, 39, 52, 53, 55 and 89 measuring 6,68 hectare and Khasra Nos. 133 & 134 measuring 2.76 hectare situated in village Todi Ramjanipura, Tehsil Sanganer, District Jaipur in the khatedari of Gajveer Singh and Madan Lal respectively during the settlement year 1987. It was mentioned that during the settlement year 1987 a team of Shri Santu Lal Sharma, Assistant Settlement Officer, Ramawatar Sharma, Inspector and Suraj Mal Gurjar, Amin was constituted. During settlement, this team conducted settlement of village Rarp.janipura and transferred the Siwai Chak land measuring 9.44 hectare comprising ofKhasra Nos. 25,27,28,29,30,31,32,33, 34,39,52,53,55,89; 133 and 134 (total 16 Khasrashn the Khatedari of Gajveer Singh and Madan Lal (6.68 and 2.76 hectare respectively), opened mutation and also attested the same. It was mentioned that the petitioner Santu Lal opened mutation No. 12 of the land comprising of Khasra Nos. 25, 27, 28, 29, 30,31, 32, 33, 34, 39, 52, 53, 55, 89, (in all 14 Khasras) measuring 6.68 hectares in the name of Gajveer Singh son of Bhanwar Singh Rajput and also opened mutation of the land comprising of Khasara Nos. 133 and 134 measuring 2.56 hectare in the name of Madan Lal son of Mangi Lal, Khati by adding additional page.' It has also been mentioned that the paper on which the disputed mutation has been opened is different from the papers already exiting on the file. As per the complaint, another mutati0n No. 12 is also in the file but it was changed as 12/1. It is also alleged that the office of petitioner Santu Lal Sharma, Assistant Settlement Officer opened file No. 966/87 in the name of Gajveer Singh and Shri Madan Lal but the record is not available. and the same was removed by the accused intentionally so that the mistake committed by them could not be detected. It is then mentioned in the report that the accused persons namely Shri Santu Lal Sharma, Assistant Settlement Officer, Shri Ramawatar Sharma, Inspector and Shri Surajmal Gur:jar, Amin hatched conspiracy with Gajveer Singh and Madan Lal and by misusing their official position transferred the land by manipulating the record and also attested the mutation thereby causing loss of crores of rupees to the Government. On the basis of the written report submitted by Dy. Superintendent of Police, Rajasthan State Bureau of Investigation, FIR No. 90/98 for the above said offences has been registered against accused pl'I'-.:<ms including the petitioner.
3. The FIR and the criminal proceedings arising therefrom are sought to be quashed on the following grounds by invoking inherent jurisdiction:
4. The first ground of challenge is that the petitioner was posted as Assistant Settlement Officer and he passed the order in question in his capacity at Assistant Settlement Officer and thus, he acted in the capacity of a 'Judge' and as such he is entitled for the protection available under the provisions of Sec. 3(1) of the Judges (Protection) Ad, 1985. To support this ground, learned Counsel for the petitioner has drawn my attention to Secs: 2 & 3 of the Judges (Protection) Act, 1985, and also to the provisions of the Land Revenue Act and the Land Record Rules. In addition to it learned Counsel for the petitioner has placed reliance on the judgment of the
5. The second ground of challenge raised by Mr. Sharma, learned Counsel for the petitioner is that in view of R. 7(3) of the (Rajasthan Civil Services Pension Rules, 1996) no judicial proceedings, if not instituted while the Government servant was in service, shall be instituted in respect of a cause of action which arose or in respect of an event which took place more than four years before such institution. As per learned Counsel for petitioner, the petitioner passed order in File No. 699/87 on 19.12.1987 and mutation was attested on 13.01.1988 and he retired on 30.06.1989 and till today investigation is pending in, FIR registered in the year 1998. Therefore, no charge-sheet can be instituted in the Court in view of provision of Rule 7(3) of the Pension Rules. To support his argument, learned Counsel for petitioner has placed reliance on the judgment of this Court (Principal Seat at
6. Per Contra learned Public Prosecutor while placing reliance on certain circulars issued by the Settlement Commissioner from time to time has strenuously contended that the petitioner being Assistant Settlement Officer was not empowered to transfer the Siwai Chak land in the Khatedari of Ranveer Singh and Madan Lal as per the office order dated 31.01.1976 issued by the Settlement Commissioner in which it has clearly been mentioned that the Assistant Settlement Officers are not empowered to accord Khatedari rights in relation to the Siwai Chak lands and such powers are vested only in the revenue officers. In this regard, learned Public Prosecutor has placed reliance on the circular dated 19.05.1977 and 13.10.1976 issued by the Settlement Commissioner. Learned Public Prosecutor further contends that the accused persons manipulated the entries in the revenue records by cutting the word Siwai Chak and entered the names of Gajveer Singh and Madan La!. It is then contended that petitioner in collusion with co-accused forged the record, destroyed, misused his official position. On this strength, learned Public Prosecutor has contended that the petitioner is not entitled for the protection 'as available under the Judges Protection Act. As regards the second argument, learned Public Prosecutor has vehemently contended that no limitation has been prescribed of the offence u/ss. 467,468,471,420 & 120-B IPC as has been alleged against the petitioner and thus, the bare of 4 years as contemplated under Rule 7 of the Pension Rules has no application to the facts of the present case and petitioner cannot take benefit on the ground of limitation.
7. I have given my anxious consideration to the rival submissions and have gone through the relevant provisions of the Act and Rules relied upon by learned Counsel for the parties.
8. To deal with the first argument, it need be observed that the legal position in respect of protection available to a 'Judge' under the Judges (Protection) Act, 1985 cannot be disputed. However, the point for consideration by the Court, in the fact and circumstances of the case would be whether the petitioner acted in the capacity of a 'Judge' and whether the protection available to a 'Judge' is available to the petitioner also? Learned Counsel for the petitioner has drawn my attention towards the definition of the 'Judge' as has been mentioned in Sec. 2 of the Judges (Protection) Act, 1985 according to which "Judge" means not only every person who is officially designated as a Judge, but also every person (a) who is empowered by law to give in any legal proceedings a definitive judgment or a judgment which, if not appealed against, would be definite or judgment which, if confirmed by some other authority, would be definite, or (b) who is one of a body or of persons is empowered by law to give such a judgment as is referred to in Clause (a). In this regard learned Counsel for the petitioner has also placed reliance on the provisions of Sec. 3 of the aforesaid Act which provides additional protection to Judges. According to which notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec. (2) no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a. Judge for any act; thing or word committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.
9. In the facts and circumstances of the case and in view of the arguments raised on behalf the parties, the question which emerges for consideration by this Court would be "whether the order passed by the petitioner a Assistant Settlement falls within the definition of an order passed in a judicial matter by a Court and whether mutation is a judicial proceeding or administrative fiscal arrangement? Hon'ble Mr. Justice V.s. Dave (as he then was) had an occasion to consider this point in the matter of Soniya @ Sohan & Ors. us.
Land Revenue Act, the definition of settlement as mentioned in sub-sec. (38) of Sec. 3 of the Rajasthan Tenancy Act and also the provisions of Sec. 23(2), Sec. 145 and also $ec. 108 of the Land Revenue Act has held as under:¬
"that mutation is method by which changes in rights are carried over to permanent record though mutation register itself is not part of the record of rights. Hence, mutation is termed as a judicial proceeding in Land Revenue Act. Thus, I have absolutely no hesitation in holding that Assistant Settlement Officer when he passes an order in mutation proceedings, he passes judicial order which is an appealable order and he acts as a Court".
10. To strengthen his contention, learned Counsel for petitioner has also placed reliance on Sec. 77 IPC, according to which nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
11. Per contra, learned Public Prosecutor placing reliance on the office orders issued from the office of Settlement Commissioner, Government of Rajasthan, dated 31.01.1976, 13.10.1976 and 19.05.1977 has contended that the petitioner being Assistant Settlement Officer was not empowered to accord Khatedari or Gair Khatedari rights in respect of Siwai Chak or
12. The second question for consideration is whether the FIR and the further proceedings thereunder are liable to be quashed in view of provisions of Sub-rule (3) of Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as 'the Rules') as no judicial proceedings if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of event which took place more than four years before such institution. In this regard, learned Counsel for the petitioner has contended that the petitioner retired from Government service on attaining the age Of superannuation on 30.06.1989 and the report has been lodged on 25.07.1998 for alleged order dated 19.12.1987and attestation of mutation on 13.01.1988 by the petitioner, thereof, the FIR is liable to be quashed in view of Rule 7 of the Pension Rules.
13. What would be the effect of the Pension Rules which prescribe a period of limitation, has been considered by the Apex Court in the matter of State of' Punjab us. Kailash Nath, (1989) 1 sec 321 wherein the Court considering similar Service Rules 2.2 of the Punjab Civil Service Rules, have held as under:¬
"Whether or not a Government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service. Therefore, making a provision that a Government servant, even if he is guilty of grave misconduct or negligence which constitutes an offence punishable either under the Penal Code or the Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide the incentive for efficient work would not only be against the public policy but would also the counterproductive. Such a situation cannot be created by framing a rule under Arts. 309 of the Constitution laying down an embargo on prosecution as a condition of service.'
In Paras 11 and 12, the Court further held:¬
"11. If a rule containing an absolute or general embargo on prosecution of a Government servant after his retin'mcnt for grave miscon'duct or negligence during the course of the service' does not fall within the purview of laying down conditions of service I.J/Art. 309, such a provision cannot in the purported exercise of power u/Art. 309 be made by either incorporating it in the substantive clause of a rule or in the proviso thereto. In view of what has been said above and keeping in mind the scope of rule-making power u/Art. 309 of the Constitution, the third proviso to Rule 2.2 cannot be interpreted as laying down an absolute or general embargo on prosecution of a Government servant if the conditions stated there are satisfied. Even if on first impression the said rule may appear to be placing such an embargo it has to be interpreted by taking recourse to the well settled rule of reading down a provision so as to bring it within the frame work of its source of power "without, of course, frustrating the purpose for which such provision was made. Clause (b) of Rule 2.2 which can be called the substantive clause reserves to the Government the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement.
12. The purpose of the third proviso is, as is the scope of a proviso, to carve out an exception to the right conferred on the 'Government by the substantive clause if the conditions contemplated by the proviso are fulfilled. This purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if a Government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose or an event which took place more than four years before such institution the Government will not be entitled to exercise the right conferred on it by the substantive provision contained in Clause (b) with regard to pension of such a Government servant."
14. Similar view has been reiterated by their Lordships of the Supreme Court in the case of State of Maharashtra vs. Keshav Ramchandra Pangare & Anr., (1999) 9 SCC 479 which was in relation to the same Rule 27(1) of the Maharashtra Civil Services (Pension) Rules, 1982.
15. Rule 2.2 of
16. Much enlphasis have been laid by learned Counsel for petitioner on the judgment delivered by a co-ordinate Bench of this Court in the case of Shri H. V. Bhatiya (Supra), in which criminal proceedings against the accused have been ordered to be quashed in view of bar of four years contained in Rule 7(3) of the Pension Rules. I have gone through the judgment. It seems that the attention of the learned ,Judge was not drawn to th9 decisions of the Supreme Court in the cases of State of
17. For the discussions aforesaid, the Misc. Petition fails and is, hereby, dismissed.