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2013 DIGILAW 384 (RAJ)

Nanag Ram v. State of Rajasthan

2013-02-14

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the order- dated 1.12.2010 passed by the learned Addl. Sessions Judge, Bhinmal in revision whereby he has affirmed the order dated 25.5.2007 passed by the learned Chief Judicial Magistrate, 1st Class, Raniwara in Case No. 112/2004 taking cognizance for the offence under Section 219 I.P.C. 2. Succinctly stated the facts of the case are that the petitioner was working as Nayab Tehsildar at Raniwara at the relevant time and in his Court a proceeding under Section 91 of the Land Revenue Act was going on against the complainant. The petitioner passed as order of removal of encroachment against the complainant on 28.8.2003. The respondent complainant filed a complaint alleging that he had sought transfer of the file from the petitioners Court and despite being made aware of the transfer order having been passed on 27.8.2003, the petitioner mala fide and in order to cause damage to the complainant passed the order of removal of encroachment totally contrary to principles of natural justice. 3. The learned Magistrate on the basis of the evidence of the complainant recorded under Section 200 Cr.P.C. proceeded to issue process against the petitioner for the offence under Section 219 I.P.C. The petitioner assailed the order taking cognizance and the revision filed by the petitioner has been rejected as stated above. Now, the petitioner has approached this Court by way of instant miscellaneous petition seeking quashing of the order taking cognizance and all subsequent proceedings sought to be taken against him in this case. 4. Dr. Sachin Acharya, learned counsel for the petitioner submits that the petitioner was acting as a Judge when he passed the order of removal of encroachment on 28.8.2003. He submits that the petitioner was not aware of the transfer order having been passed by the Collector, Jalore on 27.8.2003 directing transfer of the case from the Court of the petitioner. Learned counsel thus submits that in view of the protection available to a Judge under the Judges Protection Act, no prosecution of the petitioner is permitted in regards to any act committed or order passed or in the course of the discharge of his official or judicial functioning. Learned counsel thus submits that the prosecution of the petitioner in this case is absolutely illegal. Learned counsel thus submits that the prosecution of the petitioner in this case is absolutely illegal. He submits that Section 219 I.P.C. only applies when a public servant in a judicial proceedings corruptly makes a report contrary to law. He submits that the said provision only applies to a public servant making at any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law. The said provision does not apply to a public servant working as a Judge because such an act would be protected under the Judges Protection Act. Learned counsel thus urges that the order taking cognizance against the petitioner deserves to be quashed. 5. Mr. Balot, learned counsel for the respondent No. 2 has vehemently opposed the submissions advanced by the learned counsel for the petitioner. He submits that the petitioner was being prosecuted by the respondent No. 2 for the offences under Sections 147, 447, 427/149 I.P.C. The petitioner was having knowledge that cognizance had been taken against him in the said case but despite that he mala fide continued with the proceedings initiated against the complainant under Section 91 of the Land Revenue Act. He further submits that complainant had approached the Collector with a transfer application seeking transfer of the file from the petitioner's Court. An order of transfer of the file from the petitioner's Court was passed on 27.8.2003, yet the petitioner continued to hear the matter and mala fide decided the case against the complainant. Thus, he submits that as the petitioner's act was not bona fide and therefore, the protection of the Judges Protection Act should not be extended to the petitioner. 6. Heard and considered the arguments advanced at the bar and perused the orders impugned. 7. For a proper appreciation of the arguments advanced at the bar, the relevant provisions of the Judges (Protection) Act need to be considered. Sections 2 and 3 of the Judges (Protection) Act, 1985 read as under: 2 Definition. 6. Heard and considered the arguments advanced at the bar and perused the orders impugned. 7. For a proper appreciation of the arguments advanced at the bar, the relevant provisions of the Judges (Protection) Act need to be considered. Sections 2 and 3 of the Judges (Protection) Act, 1985 read as under: 2 Definition. - In this Act, "Judge" means not only every person who is officially designated as a Judge, but also every person- who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in clause (a) 3. Additional protection to Judges. (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (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. (2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge. 8. Undisputedly the petitioner was acting as a Judge when he passed the order dated 28.8.2003. The order taking cognizance does not state as to whether the petitioner had been made aware of the transfer order having been passed by the Collector on 27.8.2003. Had it been a case that the petitioner was made aware of transfer, then the proceedings which had been under taken by the petitioner could have been termed to be mala fide. The order taking cognizance does not state as to whether the petitioner had been made aware of the transfer order having been passed by the Collector on 27.8.2003. Had it been a case that the petitioner was made aware of transfer, then the proceedings which had been under taken by the petitioner could have been termed to be mala fide. This fact has been tried to be proved by the complainant on the strength of the affidavit of his layer but the lawyer has not been examined in support of the complaint. 9. In view of the aforesaid discussion, this Court is of the opinion that even if the petitioner had passed the order adverse to the complaint in the background of the above facts, then the order could have been assailed in appropriate proceedings or even a demand for departmental inquiry or a like action could have been made against the petitioner but definitely in the light of Sections 2 and 3 of the Judges Protection Act which have been reproduced hereinabove, the prosecution of the petitioner is barred by the provisions of the aforesaid Act. 10. The miscellaneous petition succeeds and the orders dated 24.5.2007 passed by Judicial Magistrate, 1st Class, Raniwara affirmed by the order dated 1.12.2010 passed by learned Addl. Sessions Judge, Bhinmal are quashed.Petition allowed. *******