John V. Samuel v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 10TH DAY OF OCTOBER 2014/18TH ASWINA, 1936 Crl.MC.No. 1736 of 2013 () --------------------------FIR NO.V.C.01/2013/SIU-II OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM PETITIONER(S)/A1: ---------------------------- JOHN V.SAMUEL S/O.V.A.SAMUEL AGED 45, PANAKKRA VEEDU, NEDUVELI THEKKADA, NEDUMANGAD. BY ADVS.SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) SRI.K.SIJU SMT.CHITHRA.S.BABU RESPONDENT(S)/COMPLAINANT: ------------------------------------------------- THE STATE OF KERALA REPRESENTED BY THE DY.S.P., VACB, SIU II THIRUVANANTHAPURAM THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI N.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.09.2014, THE COURT ON 10-10-2014 PASSED THE FOLLOWING: Crl.MC.No. 1736 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE A: CERTIFIED COPY OF THE FIR NO.V.C.1/2013/SIU-II, REGISTERED FOR OFFENCES PUNISHABLE UNDER SEC.13 (1)(a), 13(2) OF THE PREVENTION OF CORRUPTION ACT,1988 R/W SEC.34 IPC ON THE FILE OF THE ENQUIRTY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. ANNEXURE B: TRUE COPY OF GOVT.LETTER NO.58289/P3/2010/REVENUE DT. 11/11/2010. RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.1736 of 2013** **-------------------------------------Dated this the 10[th] day of October, 2014.** ## **ORDER** 1[st] accused in FIR No.V.C.01/2013/SIU-II registered for offences punishable under Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, “the Act”) read with Section 34 of the Indian Penal Code (in short, “IPC”) pending on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is the petitioner. He has approached this Court seeking the following reliefs: _“On these and other grounds that are submitted at the time of hearing, it is humbly prayed that this Hon'ble court may be pleased to call for the records leading to Annexure A FIR No.V.C.01/2013/SIU-II registered for offences punishable under Sec.13(1)(a), 13(2) of the Prevention of Corruption Act, 1988 r/w Sec.34 IPC on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram and quash it invoking the powers of this court under Sec.482 of the Code of Criminal Procedure, 1973.”_ 2. Heard the learned Senior Counsel for the petitioner and the learned Public Prosecutor. 3. Prosecution case, in short, is that the petitioner, while working Crl.MC No.1736/2013 2 as Revenue Divisional Officer and Sub Divisional Magistrate, Thiruvananthapuram, during the period from 31.06.2010 to 22.02.2011, with a common intention along with another accused, misused their official positions and issued various proceedings for the release of 30 lorries carrying river sand without levying fine as required under the Kerala Protection of River Banks and Regulation of Removal of Sand (Amendment) Ordinance, 2010 (in short, “the Ordinance”) and also under Circular No.64158/P3/2009/RD of the Additional Chief Secretary, Government of Kerala. Thereby the petitioner and the other accused secured pecuniary advantage to owners of the vehicles and corresponding loss to the Government. 4. Learned Senior Counsel for the petitioner submitted that the entire action is legally unsupportable and unsustainable. The petitioner was working as Sub Divisional Magistrate at the relevant time. He was exercising quasi judicial power to decide as to whether a vehicle had to be released or not depending on the facts and circumstances of the case. Section 23A (3) of the Ordinance gave discretion to the Officer exercising the function under the Ordinance. Action of the petitioner was subject to revision before the District Collector and thereafter an appeal before the District Judge, who are the authorities competent to scrutinize propriety of the exercise of discretion by the Sub Divisional Magistrate. Factually also no prosecution will lie against the petitioner as all his actions were based 3 Crl.MC No.1736/2013 on appreciation of materials on record. 5. Learned Prosecutor contended that in large number of cases, the petitioner released vehicles engaged in illegal transport of sand with an ostensible object of helping the owners. It is also contended that the petitioner derived pecuniary benefit out of the illegal action. At any rate, the Government suffered loss on account of the wrongful act of the petitioner. 6. Learned Senior Counsel contended that the petitioner, while functioning as the Sub Divisional Magistrate, was wielding judicial powers and therefore, entitled to get the protection under the Judges (Protection) Act, 1985 (in short, “the Act of 1985”). Sec.2 of the Act of 1985 defines the term 'Judge” in the following manner: _“In this Act, “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 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).”_ Sec.3 of the Act of 1985 deals with additional protection to Judges. It is in the following lines: 4 Crl.MC No.1736/2013 ## _“Additional Protection to Judges_ _(1) Notwithstanding, anything_ _contained in any other law for the time being in force and subject to the provision 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 department proceeding or otherwise) against any person who is or was a Judge.”_ Sec.4 of the Act of 1985 is the saving provision. It says that the provisions of the Act of 1985 shall be in addition to and not in derogation of the provisions of any other law for the time being in force providing for protection to judges. 7. On a careful reading of the definition of “Judge', it can be seen that to consider a person a Judge, it is not necessary that he should be officially designated as Judge. But, every person, who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment 5 Crl.MC No.1736/2013 which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive is considered to be a Judge for the purpose of the Act of 1985. Sub-sec.(1) of Sec.3 of the Act of 1985 says that notwithstanding anything contained in any other law for the time being in force and subject to the provision 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. 8. Sub-sec.(2) of Sec.3 of the Act of 1985 says that nothing mentioned in Sub-sec.(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 to take such action, including civil or criminal or departmental proceedings against a person, who is or was a Judge. Learned Senior Counsel therefore contended that if at all a prosecution can be launched against the petitioner, it could have been done only in compliance with the provisions in Sub-sec.(2) of Sec.3 of the Act of 1985. 9. Learned Senior Counsel placed reliance on the provisions in the Ordinance dated 14.06.2010 relating to regulation of sand mining. Sec.23A reads as follows: _“Confiscation of sand, vehicles, etc.-(1) Where any property is seized under section 23, the_ 6 Crl.MC No.1736/2013 _officer seizing such property shall seal all such properties for indicating that the same has been seized and shall, whether prosecution proceedings have been initiated or not, within forty eight hours of such seizure make a report of such seizure to the Sub Divisional Magistrate having jurisdiction over the area from where such property has been seized._ _(2) On receipt of a report under sub-section (1), the Sub Divisional Magistrate shall issue notice to the owner or the person having control of the vehicle, tool, implements, loading equipment, or other article to show cause in writing, within the time as may be specified in the notice why the property seized under section 23 shall not be confiscated._ _(3) Where the owner of the articles seized or the person having control of the same has not given explanation or the explanation given is not satisfactory, and the Sub Divisional Magistrate is satisfied that the articles seized under section 23 have to be confiscated, he shall, by an order, confiscate the same and the matter shall be informed to its owner or the person having its control:_ _Provided that the owner of the articles seized or the person having its control shall be given the freedom to reclaim it in lieu of confiscation by remitting an amount equal to the value of the articles except sand, as fixed by the Collector:_ _Provided further that the sand_ 7 Crl.MC No.1736/2013 _confiscated shall not be released under any circumstance by realising the value._ _(4) The amount received under the proviso to sub-section (3) shall, subject to the provisions of section 23D, be remitted to the River Management Fund._ _(5) Where an order of confiscation is passed under sub-section (3), complaint against the person concerned, in respect of the offence committed under this Act, shall be filed before the court having jurisdiction, by the Revenue Divisional Officer or shall be got filed by an officer referred to in section 25._ _(6) The sand confiscated under subsection (3) shall be sold to Nirmithi Kendra or to Kalavara at such rate, as may be fixed by the Public Works Department, from time to time, and such amount shall also be remitted to the River Management Fund._ _(7) The confiscation under this section shall be in addition to the punishment provided for such offence under this Act.”_ Sec.23B enumerates the revisional power to be exercised by the District Collector against the order of the Sub Divisional Magistrate. The said provision is in the following manner: _“Revision to the District Collector.- Any person aggrieved by an order of confiscation under section 23A may, within fifteen days from the date_ 8 Crl.MC No.1736/2013 _of such order, prefer a revision to the District Collector and the District Collector may, if he is satisfied on the basis of documents that the said order requires reconsideration, revise, modify or annul such order:_ _Provided that the District Collector may, if he is satisfied that the revision petitioner had sufficient cause for not filing the revision within the time limit, condone the delay up to fifteen days, but further delay shall not be condoned.”_ Thereafter, the aggrieved person can approach the District Court with an appeal under Sec.23C, which reads as follows: _“Appeal to the District Court.- (1) Any person aggrieved by an order of the District Collector under section 23 B may, within thirty days from the date of order of the District Collector, file an appeal before the District Court having jurisdiction over the area from which the property was seized._ _(2) The decision of the District Court under sub-section (1) shall be final.”_ Learned Senior Counsel therefore contended that the order passed by the Sub Divisional Magistrate is a quasi judicial order subject to, firstly, a revision before the District Collector and then, an appeal before the District Judge. Therefore, the petitioner is entitled to get protection under the Act of 1985. 10. Learned Public Prosecutor opposed this argument contending 9 Crl.MC No.1736/2013 that the protection under the Act of 1985 can be extended to a person for any act or thing done, etc. in the course of acting or purporting to act only in the discharge of his official or judicial duty or function. According to the learned Prosecutor, the petitioner was wrongfully exercising his quasi judicial function. He is, therefore, not entitled to get any protection. 11. Per contra, learned Senior Counsel submitted that the Act of 1985 gives protection to a person falling within its sweep even if he commits a mistake or error in judgment. Learned Prosecutor produced files pertaining to various instances wherein the petitioner released vehicles, which allegedly carried river sand without a speaking order. It is true that some of the orders are not upto the standard expected of a quasi judicial order. But the question here is whether the petitioner can be prosecuted, if he is entitled to get the protection of Act of 1985. 12. Learned Senior Counsel placed reliance on **S.P.Goel v. Collector of Stamps, Delhi ((1996) 1 SCC 573)** to contend that the petitioner is entitled to get protection under the Act of 1985. The question considered by the Supreme Court was whether a person presenting a document for registration by paying stamp duty and registration fee is a consumer within the meaning of Sec.2 of the Consumer Protection Act, 1986. The Supreme Court also considered the question whether the officers implementing the provisions of the Stamp Act and Registration Act perform statutory duties of judicial or at least, quasi judicial in nature. The 10 Crl.MC No.1736/2013 Supreme Court found that the Collector exercising the function under the Stamp Act is entitled to get the protection under the Judicial Officers (Protection) Act, 1850. The provisions in the Act of 1985 are supplementary to the protection given by other statutes. 13. The Bombay High Court in **E.S.Sanjeeva Rao v. Central Bureau of Investigation (C.B.I.) Mumbai and others (2012 Cri.L.J. 4053)** held that a Regional Provident Fund Commissioner, while passing an order under Sec.7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, is a Judge within the meaning of Sec.77 of the IPC. and Sec.3(1) of the Act of 1985 and he would be entitled to get the protection given to Judges. Our High Court in **Sankara Pillai v. Chandran (1991 (1) KLT 586)** held that the assessing authority under the Building Tax Act is an officer exercising powers under the Act and is entitled to the benefit of the Act of 1985. 14. Considering the powers exercised by the petitioner while dealing with matters under the Ordinance, it is indisputable that he was wielding quasi judicial powers. If he committed mistakes knowingly or unknowingly, there are remedies available to the aggrieved persons as per the provisions of the Ordinance itself. Apart from that, Sub-sec.(2) of Sec.3 of the Act of 1985 itself enables the Central Government or State Government or the Supreme Court of India or any High Court as the case may be, to take such action, whether civil, criminal or departmental, 11 Crl.MC No.1736/2013 against any person, who is or was a Judge. It is, therefore, very clear that the power of the State Government to take action against the petitioner is not taken away by the Act of 1985 if he was delinquent in the discharge of his official duties. But, that will not enable the prosecution to register a case against the petitioner without obtaining required sanction under Sec.3 (2) of the Act of 1985. Hence, I find that the petition is to be allowed. It is made clear that the State Government is free to take appropriate action under law against the petitioner, if there are legal reasons for doing so. In the result, the petition is allowed. FIR No.V.C.01/2013/SIU-II on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is hereby set aside. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**