Sribindu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 CRL.MC NO. 9569 OF 2022 ``` ``` CRIME NO.1/2022/SIU-II OF VACB, SIU-II THIRUVANANTHAPURAM, ``` ## **`PETITIONER/ACCUSED:`** ``` SRIBINDU AGED 49 YEARS W/O. UNNIKRISHNAN, QUARTERS NO.21, TYPE IV, CGO COLONY, VATTIYOORKAVU, THIRUVANANTHAPURAM, PIN – 695013. BY ADVS.S.RAJEEV V.VINAY SARATH K.P. M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR.C.R. ``` ## **`RESPONDENT/STATE:`** ## **`STATE OF KERALA`** ``` REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031 (CRIME NO. 1/2022/SIU-II REGISTERED BY VACB SIU-II, THIRUVANANTHAPURAM), ``` ``` BY ADV. SRI.A.RAJESH (SPECIAL GOVT. PLEADER (VIGILANCE) ADV.SMT.REKHA S (SR.PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.9569 of 2022 2 ## **ORDER** The petitioner, an Assistant Commissioner (Works Contract), Goods and Services Tax Department seeks to quash Crime No.1/2022/SIU-II registered by the VACB, SIU-II Thiruvananthapuram. She is alleged to have committed offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 2. The petitioner is arraigned as accused No.1 in the FIR. Mr.Abdhul Rasheed, the Managing Director of a construction company is accused No.2. 3. The FIR was registered based on a complaint filed by Mr.Neyyattinkara P. Nagaraj alleging that the petitioner while working as Assistant Commissioner (Works Contract), Tax Tower, Karamana, Thiruvananthapuram during the period from 30.5.2014 to 20.6.2015 assessed tax to be paid by accused No.2 in such a way as to give unlawful benefit to him and loss to the Government. The prosecution alleges that while passing the assessment order dated 6.12.2014 the Crl.M.C.No.9569 of 2022 3 petitioner omitted to include the works done by the sub-contractors of accused No.2, thereby excluding the contract work worth Rs.48,67,18,996/- leading to reduction of tax to the tune of Rs.1,46,01,569/-. It is alleged that the Government sustained a loss of Rs.1,33,31,691/-. 4. I have heard the learned counsel for the petitioner Sri.S.Rajeev and the learned Special Government Pleader (Vigilance) Sri.A.Rajesh. 5. The learned counsel for the petitioner submitted that as the assessment order dated 6.12.2014 passed by the petitioner is the basis for the prosecution which is a quasi judicial order, the petitioner is entitled to the protection contained in Section 3(1) of the Judges (Protection) Act, 1985. The learned counsel for the petitioner submitted that the prosecution has not placed any material to show that the petitioner passed an assessment order on extraneous considerations or that she received any bribe. 6. The learned Special Government Pleader submitted that the protection under the Judges (Protection) Act 1985 is not absolute and if it is found that the assessment order was passed deliberately omitting certain relevant materials with intent to favour accused No.2 the petitioner is not entitled to the protection. Crl.M.C.No.9569 of 2022 4 7. The petitioner, who was working as Assistant Commissioner (Works Contract) exercising the jurisdiction under the Kerala Value Added Tax Act, was empowered to pass assessment orders. 8. The foundation of the registration of FIR against the petitioner is the assessment order dated 6.12.2014 passed by her in favour of accused No.2. The only question that arises for consideration is whether the petitioner is entitled to the protection contained in Section 3(1) of the Judges (Protection) Act, 1985. 9. It is profitable to extract Sections 2 and 3 of the Judges Protection Act, 1985 which read thus:- “ **2. Definition** .- 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). **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.” Crl.M.C.No.9569 of 2022 5 10. Going by the definition, “Judge” includes every person empowered by law to give definitive judgment in any legal proceeding or a judgment which, if not appealed against, would be definitive or a judgment which, if confirmed by some other authority, would be definitive. 11. The expression used in Section 2 is “legal proceeding”. There may be subtle difference between a ‘legal proceeding’ and a ‘judicial proceeding’. A proceeding may be legal even if it is not judicial proceeding, if it is done as empowered by law. ## 12. In **General Officer Commanding, Rashtriya Rifles** v. ## **Central Bureau of Investigation and Another** (AIR 2012 SC 1890) the Supreme Court observed that every judicial proceeding is a legal proceeding but not vice versa, for the reason that there may be a ‘legal proceeding’ which may not be judicial at all. The Supreme Court referred to assessment orders under the Income Tax Act, Sales Tax Act, Arbitration Proceedings etc. as legal proceedings which may not be judicial. This Court, while dealing with a similar fact situation, in **Santhosh Kumar G** v. **State of Kerala** (2021 KHC 393) held that undoubtedly assessment proceedings under the Sales Tax Act are legal proceedings. Therefore, a proceeding leading to the passing of an assessment order under the Kerala Value Added Tax Act is a legal Crl.M.C.No.9569 of 2022 6 proceeding as defined in Section 2 of the Judges (Protection) Act, 1985. Thus, an Assistant Commissioner exercising jurisdiction under the KVAT Act discharges functions as a Judge envisaged under Section 2 of the Act while passing assessment orders. 13. As per Section 3 of the Judges (Protection) Act, no Court shall entertain or continue any criminal or civil proceeding against any person who is or was a Judge for any act done in discharge of his official duty or function. 14. In **Jaswant Sugar Mills** v. **Lakshmi Chand** (AIR 1963 SC 677) the Supreme Court held that to make a decision or an act judicial, the following criteria must be satisfied: 1) it is in substance a determination upon investigations of a question by the application of objective standards to facts found in the light of pre - existing legal rules; 2) it declares rights or imposes upon parties obligation affecting their civil rights; and 3) that the investigation is, subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact. Crl.M.C.No.9569 of 2022 7 15. In **Surendra Kumar Bhatia** v. **Kanhaiya Lal** (AIR 2009 SC 1961) while considering the question whether the Collector/Land Acquisition Officer, while making an enquiry under the Land Acquisition Act, acts in a judicial capacity or not, the Apex Court held that even though the Collector may have 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, he neither acts in judicial nor quasi judicial capacity but purely in an administrative capacity and that he 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. 16. In **Sankaran Pillai** v. **Chandran** (1991 (1) KLT 586) this Court held that the assessing authority, under the Kerala Building Tax Act, is entitled to the protection under Section 3 of the Act. In **State of Kerala** v. **K.T.Shaduli** (AIR 1977 SC 1627) the Supreme Court held that tax authorities, who are entrusted with the power to make assessment of tax, discharge quasi judicial functions. In **Appukutty** v. **Sales Tax Officer (1965 KLT 803)** this Court observed thus:- “Whether the assessment be one relating to income-tax, agricultural income-tax or sales-tax, the process of best judgment assessment is a quasi-judicial process, an honest and Crl.M.C.No.9569 of 2022 8 bona fide attempt in a judicial manner to determine the tax liability of a person. And such determination must be related to the materials before the authority.” ## 17. In **Ujjam Bai** v. **State of U.P. (AIR 1962 SC 1621)** the Supreme Court held that assessment proceedings have all characteristics of judicial or quasi-judicial process and would clothe the Sales tax Officer making assessment orders with judicial or quasijudicial character. ## 18. In **Santhosh Kumar G.** v. **State of Kerala** (2021 KHC ## 393) this Court observed thus:- “38. The word “quasi-judicial” itself necessarily implies the existence of the judicial element in the process leading to the decision. When the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well recognised principles of approach are required to be followed.” ## 19. In **Orient Paper Mills Limited** v. **Union of India** (AIR 1970 SC 1498 : (1970) 3 SCC 76), the Supreme Court held thus:- “The main question is whether an assessment made by a subordinate officer in accordance with the instructions issued by the Collector to whom an appeal lay against the order of that subordinate officer can be called a valid assessment in the eye of law.....In the present case, when the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, Crl.M.C.No.9569 of 2022 9 to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment................ The assessing authorities exercise quasi judicial functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality”. 20. In **Santhosh Kumar’s** case (supra) this Court further held that the discharge of official duty by an Assistant Commissioner under the Kerala Value Added Tax Act while passing assessment orders is a quasi judicial function and therefore, he is entitled to get the protection under Section 3(1) of the Judges Protection Act. While dealing with the provisions of the Judicial Officers Protection Act, 1850 in **Anwar Hussain** v. **Ajoy Kumar Mukherjee** (AIR 1965 SC 1651) the Supreme Court held that if the act done or ordered to be done in the discharge of judicial duties is within jurisdiction, the protection is absolute and there cannot be any enquiry as to whether the act was done or ordered to be done erroneously, irregularly or illegally. 21. In **S.P.Goel** v. **Collector of Stamps** (AIR 1996 SC 839), while considering the scope of Section 1 of the Judicial Officers Protection Act, 1850, the Supreme Court held that the Act contains the Crl.M.C.No.9569 of 2022 10 common law rule of immunity of judges which is based on the principle that a person holding a judicial office should be in a position to discharge his functions with complete independence and what is more important, without there being in his mind, fear of consequences. 22. Admittedly, the assessment order dated 6.12.2014 pursuant to the proceedings initiated by exercising the jurisdiction under the Kerala Value Added Tax Act is subject to appeal by the higher authorities. The remedy for errors or omissions committed by a quasi judicial authority is appeal or revision. As per the relevant statutes erroneous exercise of judicial power would not amount to criminal misconduct. In **Santhosh Kumar’s** case (supra) this Court observed thus:- “52. Every error committed by a quasi judicial authority, however gross it may be, should not be attributed to improper motives. The appellate and revisional forums are provided on the pre - supposition that persons may go wrong in decision making, on facts as well as law. Even when the contest is between the Government and a private person, a quasi judicial authority entrusted with the task of decision making should feel fearless to give honest opinion while acting judicially. Even if there was possibility on a given set of facts to arrive at a different conclusion, it is no ground to indict a public servant for misconduct for taking one view. If a faulty order of a quasi judicial authority is taken as a ground for initiating criminal proceedings, the officer will be in constant fear of passing an order which is not favourable to the Government. Then he would not be able to act independently or fearlessly. Merely because the order is wrong, it does not warrant initiation of criminal proceedings against the public servant, unless he was actuated by extraneous considerations or oblique motives. The remedy for Crl.M.C.No.9569 of 2022 11 errors committed by a quasi judicial authority is appeal or revision to the forum or authority provided under the statute for that purpose. It is in public interest that a public servant acting as quasi judicial authority should be in a position to discharge his functions with independence and without fear of consequences. The general rule applicable in the case of the issuance of a wrong order is that it is liable to be corrected in appeal or revision. A public servant acting as quasi judicial authority may become criminally liable for obtaining personal gains. But, when he is acting judicially, even if he commits an error and passes an erroneous order, he would be protected from legal action. His accountability in respect of the orders passed by him is ensured by provisions for appeal and revision. 53. What matters is not the end result of the adjudication. What is of relevance, in attributing criminal misconduct on the part of a public servant who has acted as a quasi judicial authority, is whether he had been swayed by extraneous considerations while conducting the process. The sanctity of decision making process should not be confused with the ultimate conclusion reached by the authority. Erroneous exercise of judicial power, without anything more, would not amount to criminal misconduct. If the statutory authorities who exercise quasi judicial powers feel that they cannot honestly and fearlessly deal with matters that come before them, then it would not be conducive to the rule of law. They must be free to express their mind in the matter of appreciation of the evidence before them. Unless there are clear allegations of misconduct or extraneous influences or gratification of any kind, criminal proceedings cannot be initiated merely on the basis that a wrong order has been passed by the public servant or merely on the ground that the order is incorrect. Such decisions cannot ipso facto result in prosecution, unless the mental element of dishonesty, to cause advantage of an unwarranted variety to another is apparent. 54. If a public servant, acting as a quasi judicial authority under a statute passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is an allegation that he was actuated by extraneous considerations or oblique motives in passing the order.” It may be true that if there is material to show that the judgment/order Crl.M.C.No.9569 of 2022 12 has been passed on extraneous considerations, then the protection is no longer available. A person cannot be liable for the acts done by him in a judicial capacity. He can only be liable for acting in bad faith. 23. The prosecution has not placed any material to come to the conclusion that the petitioner passed the assessment orders on extraneous considerations. 24. The resultant conclusion is that the petitioner is entitled to the protection envisaged under Section 3(1) of the Judges (Protection) Act, 1985 in respect of the assessment order dated 6.12.2014 passed by her. The prosecution initiated against the petitioner based on the assessment order dated 6.12.2014 is not maintainable in law. Therefore, the FIR and all further proceedings against her are liable to be quashed. Consequently, the Crl.M.C. is allowed. The entire proceedings against the petitioner alone in FIR No.01/2022/SIU-II registered by the VACB, SIU-II, Thiruvananthapuram is hereby quashed. Sd/- **K.BABU Judge** TKS Crl.M.C.No.9569 of 2022 13 ## **`APPENDIX OF CRL.MC 9569/2022`** ``` PETITIONER ANNEXURES Annexure-I ``` ``` CERTIFIED COPY OF THE FIR IN CRIME NO. 1/2022/SIU-II REGISTERED BY VACB SIU-II, THIRUVANANTHAPURAM POLICE STATION ```