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2024 DIGILAW 1635 (KER)

K. P. Vasu, S/o. Korappan v. Deputy Superintendent Of Police, Vigilance And Anti Corruption Bureau, Kozhikode Dist.

2024-12-11

P.G.AJITHKUMAR

body2024
ORDER : (P.G. Ajithkumar, J.) The petitioner was the Land Tribunal, Kozhikode during the relevant period. He issued Annexure A2 order issuing Purchase Certificate on 13.05.1998. C.C.No.21 of 2010 on the files of the Enquiry Commissioner and Special Judge, Kozhikode arose with respect to the said order. The petitioner is the 1st accused in that case. He seeks to quash Annexure A1 Final Report in C.C. No.21 of 2010 in this petition filed under Section 482 of the Code of Criminal Procedure, 1973. 2. The petitioner also filed Crl.R.P.No.1414 of 2017 challenging the charge framed by the Special Judge in the said case on 25.10.2017. A copy of the court charge was produced therewith. In the criminal revision petition, the contentions are mainly based on the protection available to a Judge under Section 3 of the Judges (Protection) Act, 1985. During pendency of the criminal revision petition, the petitioner has filled Crl.M.C.No.5839 of 2024. 3. Heard the learned counsel for the petitioner and the Special Public Prosecutor. 4. As per the order dated 25.10.2017, the learned Special Judge framed charge against the petitioner and his co accused. The court charge reads as follows: “Sri.K.P.Vasu, Tahsildar, Land Tribunal, Kozhikode (A1) and Sri.A.Aboobacker, Special Revenue Inspector, Land Tribunal Kozhikkode (A2) in their official capacities as public servants during the year 1997-98 abused their official position and actively connived with Sri.P.K.Moideenkoya (A3) and his son Sri.Ummer Farooq, M(A4) and committed criminal conspiracy and A1 Sri.K.P.Vasu granted pattayam to Sri.P.K.Moideenkoya (A3) on 13.05.1998 on the basis of the report of Sri.A.Aboobacker, Special Revenue Inspector, Land Tribunal, Kozhikode (A2) and with the support of a forged sketch got prepared by a private surveyor as directed by Sri.Ummer Farooq.M.(A4) in favour of 17.70 cents of land in R.S.No.258/1 in Kasaba Village, instead of 16.60 cents, without complying the mandatory provisions under K.L.R Act for the pecuniary advantage of Sri.P.K.Moideenkoya (A3) and his son Sri.Ummer Farooq.M. (A4) and that the above act committed by the accused persons amounts to offences punishable under Sections 13(1)(d) r/w 13(2) of PC Act 1988 and Sections 465, 471, 120 B IPC and hence the charge.” 5. When the court has considered the materials produced by the prosecution and formed an opinion that there was ground for presuming that the petitioner has committed the offence and accordingly a charge was framed, he cannot ordinarily be permitted to invoke provisions of Section 482 of the Code. Correctness and legality of the order framing charge is able to be questioned under Section 397 of the Code. As a matter of fact, the petitioner has filed Crl.R.P.No.1414 of 2017 challenging the correctness and legality of the charge also. The power invested in the High Court by Section 482 of the Code is an inherent one and the purpose is to prevent abuse of the process of the court or otherwise to secure the ends of justice. When a statutory remedy is available, one cannot be allowed in routine to invoke the discretionary jurisdiction under Section 482 of the Code. 6. In Priyanka Mishra v. State of Uttar Pradesh [2023 SCC OnLine SC 978] the Apex Court held that persons are to be protected against vexatious and unwarranted criminal prosecution, and from unnecessarily being put through the rigours of an eventual trial. The Apex Court in Vishnu Kumar Shukla v. State of Uttar Pradesh [ AIR 2024 SC 90 ] held that the protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion in the deserving cases is a duty cast on the High Courts. 7. Here, the contention of the petitioner is that he is entitled to get protection of Section 3 of the Judges (Protection) Act. Also, he contends that Annexure A2 order was issued in a quasi-judicial proceedings and even if the order is wrong, the same shall not be an offence in view of the provisions of Section 77 of the IPC. 8. If the said contentions are accepted, inevitably the petitioner gets insulated from a prosecution. Having regard to that aspect, I am inclined to exercise the jurisdiction under Section 482 of the Code and consider the contentions of the petitioner in Crl.M.C No.5839 of 2024. 9. Indisputably, the offending act on the part of the petitioner is the issuance of Annexure A2 order and consequent Purchase Certificate. A Land Tribunal is empowered under Section 72K of the Kerala Land Reforms Act, 1963, after an enquiry to issue a purchase certificate to a cultivating tenant. 9. Indisputably, the offending act on the part of the petitioner is the issuance of Annexure A2 order and consequent Purchase Certificate. A Land Tribunal is empowered under Section 72K of the Kerala Land Reforms Act, 1963, after an enquiry to issue a purchase certificate to a cultivating tenant. What the petitioner did while issuing Annexure A2 is exercise of the said jurisdiction and having a judicial decision making process as empowered by law and rendering a definitive judgment. The order he has rendered, subject to appeal, is final as to the right of the parties to that proceedings. 10. Section 77 of the IPC provides protection to an act done by a Judge when acting judicially and in good faith. Section 77 reads as follows: “77. Act of Judge when acting judicially. - 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. For the propose of understanding Section 77, the definition of Judge in Section 19 of the IPC is beneficially reproduced below: “19. “Judge”. - The word “Judge” denotes 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, civil or criminal, 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 who is one of a body of persons, which body of persons is empowered by law to give such a judgment.” 12. A Judge has thus to be understood not by the designation but by the power he wields and exercises. While issuing a purchase certificate under Section 72K of the Kerala Land Reforms Act, a Land Tribunal is expected to have due enquiry and render an order deciding on the rival claims. The order so issued amounts to a definitive judgment as mentioned in Section 19 of the IPC. He therefore comes, in the matter of issuance of a purchase certificate, within the definition of Judge and entitled to the protection of Section 77 of the IPC for his bonafide acts. 13. Section 124 of the Kerala Land Reforms Act reads: “124. Protection of action taken under Act. He therefore comes, in the matter of issuance of a purchase certificate, within the definition of Judge and entitled to the protection of Section 77 of the IPC for his bonafide acts. 13. Section 124 of the Kerala Land Reforms Act reads: “124. Protection of action taken under Act. -No suit, prosecution or other legal proceeding shall lie against any officer for anything in good faith done or intended to be done under this Act or the rules made thereunder.” 14. If the act of the petitioner was in good faith, Section 124 also provides a protective cover against any proceedings against him in regard to the issuance of a purchase certificate. 15. Section 3 of the Judges (Protection) Act is a total insulation of a Judge against any kind of prosecution. Section 3 reads thus: “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.” 16. As stated, the proceedings before the Land Tribunal in the matter of issuance of a purchase certificate is certainly a fact-finding enquiry and adjudication on rights of the rival parties. As reflected from Annexure A2 itself notice was issued, and sufficient time was granted to the landlord. It was based on the report and the survey sketch submitted by the revenue inspector, Annexure A2 order was issued. That apparently was a proceedings in compliance to the procedure prescribed by law. As reflected from Annexure A2 itself notice was issued, and sufficient time was granted to the landlord. It was based on the report and the survey sketch submitted by the revenue inspector, Annexure A2 order was issued. That apparently was a proceedings in compliance to the procedure prescribed by law. When Section 3 says that no court shall entertain or continue any civil or criminal proceeding against a Judge for an act he did in the course of, or purporting to act in the discharge of his official or judicial duty, the prosecution initiated against him in regard to the issuance of Annexure A2 order allowing purchase certificate is without sanction of law. The action possible in respect of such an act is as provided in sub-section (2) of Section 3 of the Judges (Protection) Act. 17. A similar matter was considered by this Court in Jose P.T. v. State of Kerala [ 2023(2) KHC 526 ]. There, Chairman and member of the Taluk Land Board were proceeded against for the offences punishable under Section 13(1)(d) of the PC Act. This Court while considering the question as to whether the Chairman and Member of the Taluk Land Board are entitled to get protection under Section 3 of the Judges (Protection) Act held as follows: “The impugned order was passed by accused No.1 and 2 in their capacity as the Chairman and Member of the Taluk Land Board which is a quasi- judicial authority constituted under Section 100A of the KLR Act. No doubt, the proceeding under Section 85(A) of the KLR Act is a legal proceeding. Hence, the Chairman and Member of the Taluk Land Board would fall within the definition of the ‘Judge’ in Section 2 of the Judges (Protection) Act, 1985 which refers to every person who is empowered by law to give a definitive judgment in a legal proceeding. The Chairman and Member of the Taluk Land Board are entitled to get protection under Section 3(1) of the Judges (Protection) Act, 1985 in respect of the order passed by them under the exercise of their quasi – judicial functions” 18. Same analogy is applicable in the case of Land Tribunal also. That fortifies the view which I have taken above. Same analogy is applicable in the case of Land Tribunal also. That fortifies the view which I have taken above. In the circumstances, this Crl.M.C. is allowed and Annexure A1 final report in C.C.No.21 of 2010 on the files of the court of the Enquiry Commissioner and Special Judge, Kozhikode as regards the petitioner (1st accused) is quashed. Since Crl.M.C No.5389 of 2024 is allowed and the final report in C.C.No.21 of 2010 quashed, Crl.R.P.No.1414 of 2017 has become infructuous and the same is dismissed as infructuous.