P.R. Paul v. State of Kerala and C.K. Andrews

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 31ST DAY OF MAY 2013/10TH JYAISHTA 1935 Crl.MC.No. 283 of 2008 ( ) --------------------------CC 17/2006 of ENQUIRY COMMISSIONER AND SPECIAL JUDGE,THRISSUR PETITIONER(S)/ACCUSED: ------------------------------------------ P.R.PAUL, AGED 61 YEARS,S/O.RAPPAYI PULLIKOTTIL HOUSE, CHOWALLOORPADI, (VIA) GURUVAYOOR, GURUVAYOOR THRISSUR. BY ADVS.SRI.RAJIT SRI.RANJIT BABU RESPONDENT/STATE: ------------------------------ 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. C.K.ANDREWS, CHAKRAMAKKILL HOUSE MUSEUM CROSS LANE, CHEMBUKAAVU, THRISSUR. R1 BY PUBLIC PROSECUTOR SHRI VIJU THOMAS R2 BY ADV. SRI.S.RAJEEV R2 BY ADV. SRI.N.K.UNNIKRISHNAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-04-2013, THE COURT ON 31.05.2013 PASSED THE FOLLOWING: CRL.MC NO.283/2008 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A TRUE COPY OF THE ABOVE COMPLAINT FILED BY THE RESPONDENT AGAINST THE PETITIONER BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR ANNEXURE B TRUE COPY OF CMP NO.1757/2007 IN CC NO.17/2006 PRAYING FOR DISCHARGE FILED BY THE PETITIONER BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR ANNEXURE C TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER ANNEXURE D CERTIFIED COPY OF THE ORDER DATED 15.1.2008 (WRONGLY SHOWN AS 15.1.2007) IN CMP NO.1757/2007 IN CC NO.17/2006 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR ANNEXURE E TRUE COPY OF THE JUDGMENT OF THE SUB COURT THRISSUR IN LAR NO.83/2003 AND CONNECTED CASES. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **“C.R.”** **A.HARIPRASAD, J. -------------------------------------Crl.M.C. No.283 of 2008 -------------------------------------Dated this the 31[st] day of May, 2013.** ## **ORDER** Crucial legal question arising for consideration is the following: Whether the Collector defined in Section 3(c) of the Land Acquisition Act, 1894 or the Land Acquisition Officer discharging the functions of the Collector under the said Act is entitled to claim protection under the Judges (Protection) Act, 1985? 2. Shorn off unnecessary details, facts relevant for our purpose are the following: Petitioner, the accused in C.C.No.17 of 2006 before the court of Enquiry Commissioner and Special Judge, Thrissur, is called up to answer a charge under Section 7 of the Prevention of Corruption Act, 1988 (in short, “the Act of 1988”). Allegation against the petitioner is that while he was working as Special Tahsildar and Land Acquisition Officer, he demanded bribe from the complainant, whose land admeasuring about 19 acres was acquired for an industrial development scheme. It is the further contention that the complainant refused to budge to the demand for illegal gratification of `500/- per cent of land, and therefore the petitioner undervalued the property, causing great financial loss to the complainant. The complaint was forwarded to Police under Section 156(3) Cr.P.C. After conducting detailed investigation, the Investigating 2 Crl.MC No.283/2008 Officer found that the allegation was false and therefore, the complaint was referred. Thereafter Annexure-A complaint was filed. 3. Petitioner entered appearance before the court below on receipt of summons and he is on bail now. Complainant was examined as PW1 and Exts.P1 to P13 were marked. Subsequently, petitioner filed C.M.P.No.1757 of 2007 before the court below claiming discharge. That petition was considered and dismissed by the court below. Hence this petition under Section 482 of the Code of Criminal Procedure (for short, “Cr.P.C.”). 4. Heard the learned counsel for petitioner and the learned counsel appearing for the 2[nd] respondent. Learned Public Prosecutor was also heard. 5. From the impugned order passed by the trial court, it is seen that the petitioner raised mainly two contentions for discharge. First one was lack of sanction for prosecution required under Section 19 of the Act of 1988. Trial court, after considering the binding precedents on the point, found that the accused facing prosecution for offences under the Act of 1988 cannot claim any immunity on the ground of want of sanction, if he had ceased to be a public servant on the date when the court took cognizance of the offence. Reliance was placed by the trial court on R. Balakrishna Pillai v. The State and another (1995 Crl.L.J. 963) and State of Kerala v. Padmanabhan Nair (AIR 1999 SC 2405). Trial court also took note of the fact that the petitioner had retired from service long prior to the filing of the complaint. Therefore, the court below rightly found that no sanction was required under Section 19 of the Act of 1988 to proceed against the petitioner. 3 Crl.MC No.283/2008 6. Second contention raised was regarding the claim of protection available to the petitioner under the Judges (Protection) Act, 1985. That claim was also repelled by the trial court. That contention deserves to be considered in detail. Therefore I shall do so in the succeeding paragraphs. 7. Before that the question as to whether an order for framing charge can be challenged in a proceeding under Section 482 Cr.P.C. has to be considered. It is indubitable that an order framing charge substantially affects accused's liberty. It is the responsibility of the court, while framing charge, to judicially consider the materials before it. Predominant view is that if the objection raised against an order framing charge is upheld results in termination of the proceedings, then order framing charge cannot be regarded as merely an interlocutory order under Section 397(2) Cr.P.C. In other words, framing charge is a very important matter affecting the liberty of the accused and compelling the accused to undergo a trial. It cannot therefore be held to be an interlocutory order. (see **Narayanan v. Vidyadharan (1989 (2) KLT 613)** and **Prabhakaran v. Excise Circle Inspector (1992 (2) KLT 860** ). Since the order framing charge against the petitioner is a revisable one under Section 397(1) Cr.P.C., correctness, legality or propriety of that order cannot be challenged in a proceedings under Section 482 Cr.P.C. However, the petitioner would contend that the entire proceedings before the trial court is vitiated because the petitioner is entitled to get additional protection under the Judges (Protection) Act, 1985. Basis of the prosecution itself is shaky, contended the petitioner. Hence this Court is legally obliged to consider that plea under Section 482 4 Crl.MC No.283/2008 Cr.P.C. is the contention raised. Therefore I shall examine the legality of his claim. 8. Definition of 'Judge' in Section 2 of the Judges (Protection) Act, 1985 is very vide in its terms and reads as follows: “In this Act, “Judge” means not only every person who is officially designated as 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 Cl.(a).” Sections 3 and 4 of the Judges (Protection) Act, 1985 make it clear that what is provided under the Act is an additional protection afforded to a Judge, apart from that in other statutes. Judicial Officers' Protection Act, 1850 was intended to provide greater protection to Magistrates and others acting judicially. Section 1 of the said Act insulated them from suing in civil court for act done or ordered to be done in discharge of judicial duty. By virtue of Section 3 of the Kerala Judicial Officers Protection Act, 1963, the Judicial Officers Protection Act, 1850 along with Acts pari meteria prevailed in the State of Travancore and Cochin were repealed. This Act also provides protection only in the matter of civil actions. 9. It was contended by the learned counsel for the petitioner that the 5 Crl.MC No.283/2008 petitioner, who was the Special Tahsildar, entrusted with the duty of land acquisition, was exercising various powers mentioned in Part II of the Land Acquisition Act, 1894. Section 4 of the Land Acquisition Act deals with the power of the Collector for effecting publication of preliminary notifications and other consequential matters. Section 5A of the said Act deals with the power of Collector to hear objections. Section 9 speaks about the power of Collector to issue notice to the persons interested in the land. As per Section 11 of the Land Acquisition Act, Collector is authorised to conduct enquiry into the objections raised relating to the land acquisition and he is authorised to pass an award. Section 12 of the Land Acquisition Act was pressed into service to contend that the award made by the Collector becomes final in certain circumstances. Other provisions of the Land Acquisition Act were also highlighted to contend that the Collector, under the Act, is performing quasi-judicial functions and therefore, falls within the extended definition of “Judge” in the Judges (Protection) Act, 1985. It is contended by the learned counsel for the petitioner that the definition of 'Judge' in the Judges (Protection) Act is very wide so as to include every person who is empowered by the 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. According to the learned counsel for the petitioner, the award passed by the Collector under the Land Acquisition Act, after considering the relevant matters, is binding on the parties to the proceedings and so, he is discharging a judicial function. 6 Crl.MC No.283/2008 10. In order to buttress these contentions, reliance is placed on various decisions. **Sankaran Pillai v. Chandran (1991 (1) KLT 586)** was cited to argue that the assessing authority, under the Kerala Building Tax Act, was held to be entitled to the benefits under the Judges (Protection) Act. After considering the provisions of the relevant Act and the provisions of the Judges (Protection) Act, learned Single Judge of this Court found that the assessing authority is observing legal requirements under the Act and therefore is entitled to the protection. ## 11. **Meena Mehra v. Lokayukt Organisation (2011 LAWS (MPH) 9-8)** was cited to contend a proposition that a revenue officer by virtue of his powers under the M.P.Land Revenue Code exercises a quasi-judicial function and therefore holds the status of a Judge defined under Section 2 of the Judges (Protection) Act, 1985. So also, based on **State of Maharashtra v. Yeshwant Parasharam Sawant (1976 LAWS (Bom) 11-17** ), it was contended that an officer functioning as Additional Mamlatdar and Agricultural Lands Tribunal under the Bombay Tenancy and Agricultural Lands Act, 1948 is entitled to the protection in view of the quasi-judicial functions provided in the statute. I am unable to accept these contentions for the reasons stated infra. The decisions relied on by the petitioner deal with statutory powers of quasi judicial authorities under various State enactments. The situation under the Land Acquisition Act is totally different. Nature of powers and functions of Collector under the Land Acquisition Act has been considered by the Supreme Court in various decisions. **Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition** 7 Crl.MC No.283/2008 **Officer and another (AIR 1961 SC 1500)** is the authority regarding the nature of the award under the Land Acquisition Act. Paragraph 5 of the decision reads as follows: “In dealing with this question it is relevant to bear in mind the legal character of the award made by the Collector under S.12. In a sense it is a decision of the Collector reached by him after holding an enquiry as prescribed by the Act. It is a decision, inter alia, in respect of the amount of compensation which should be paid to the person interested in the property acquired; but legally the award cannot be treated as a decision; it is in law an offer or tender of the compensation determined by the Collector to the owner of the property under acquisition. If the owner accepts the offer no further proceeding is required to be taken; the amount is paid and compensation proceedings are concluded. If, however, the owner does not accept the offer S.18 gives him the statutory right of having the question determined by Court, and it is the amount of compensation which the Court may determine that would bind both the owner and the Collector. In that case it is on the amount thus determined judicially that the acquisition proceedings would be concluded. It is because of this nature of the award that the award can be appropriately described as a tender or offer made by the Collector on behalf of the Government to the owner of the property for his 8 Crl.MC No.283/2008 acceptance.” Facts in brief in **Surendra Kumar Bhatia v. Kanhaiya Lal and others ((2009) 12 SCC 184)** is that the Special Officer of Rajasthan Housing Board, in collusion with certain office bearers practiced fraud and grabbed valuable lands from the Board and some office bearers fraudulently obtained allotment of pattas. The Supreme Court elaborately considered the scope of the powers of the Collector/Land Acquisition Officer in the light of the provisions under the Land Acquisition Act, 1894 and the Penal Code, 1860. In paragraph 22, the law laid down in lucid terms is the following: “22. The question whether the Collector/Land Acquisition Officer while making an enquiry and award under the Act, acts in a judicial capacity or not, has been considered in a series of judgments. The well-settled principles are: (a) Any inquiry as to the market value of property and determination of the amount of compensation by the Collector is administrative and not judicial in nature even though the Collector may have the power to summon and enforce the attendance of witnesses and production of documents. In making an award or making a reference or serving a notice, the Collector neither acts in a judicial nor quasi-judicial capacity but purely in an administrative capacity, exercising statutory powers as an agent and representative of the 9 Crl.MC No.283/2008 Government/acquiring authority. (b) The award by a Collector is merely an offer of the amount mentioned as compensation on behalf of the Government/acquiring authority to the person/s interested. It is neither an executable decree, nor binds the owners or persons interested in the acquired property. (c) The Collector does not function as a judicial officer who is required to base his decision only on the material placed in the enquiry in the presence of parties, but functions as a valuer who ascertains the market value on material collected from all sources, personal inspection and his own knowledge and experience.” Therefore, in the light of the binding pronouncements of law on the subject, I find that the contention of the petitioner that he is entitled to get the benefit of Section 3 of the Judges (Protection) Act, 1985 cannot be upheld. Therefore, I find that the petition is devoid of any merit. Hence it is dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**