Allowed

Varsha Thakur Ganesh Ghuge v. the State of Mah

Bombay HC19 Jul 2018APPLN/4234/2007

Case brief

AI extract

What is this about?

Single Bench convicted criminal application under Section 482 CrPC for quashing an FIR. It held that the applicant, a Deputy Collector acting as Sub-Divisional Magistrate, fell within the definition of 'Judge' under the Judges (Protection) Act, 1985 while passing orders under the Maharashtra Land Revenue Code. Consequently, criminal proceedings against her were barred.

What did the court decide?

FIR against the applicant is quashed; criminal proceedings against her are barred; the co-application is disposed of.

Varsha Thakur Ganesh Ghuge Vs the State of Mah — Criminal Trial and Appeal | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 4234 OF 2007

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WITH

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CRIMINAL APPLICATION NO. 6849 OF 2016

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Varsha Thakur w/o Ganesh Ghuge, Age 35 years, Occ. Government Servant, R/o. Residential Deputy Collector, Jalna.

... Applicant

(Ori. Accused)

VERSUS

The State of Maharashtra.

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Sunil s/o Mishrilal Jain, Age 35 years, Occ. Agriculture, R/o. Banoti, Tq. Soygaon, Dist. Aurangabad.

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... Respondents

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(Respondent No. 2 is original informant)

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Advocate for Applicant : Mr. N. S. Ghanekar. APP for respondent No. 1/State : Mr. M. M. Nerlikar

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Advocate for Respondent No. 2 : Mr. P.B. Patil.

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CORAM : T.V. NALAWADE & K. L. WADANE, JJ. RESERVED ON : 16^th JULY, 2018 PRONOUNCED : 19^th JULY, 2018. ON

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JUDGMENT ( PER K.L. WADANE, J.) :

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Rule. Rule made returnable forthwith. With the consent of

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the parties, this application is taken up for final disposal.

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This application is filed by the applicant under the

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provisions of section 482 of the Code of Criminal Procedure for relief of

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quashing of first information report registered vide M.A.No. 1/2007

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with Soygaon police station for the offences punishable under section

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166, 167, 193, 465, 468, 471 read with section 34 of the Indian Penal Code.

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Heard Mr. N.S. Ghanekar, learned counsel for applicant, Mr. Nerlikar, learned APP for the respondent/State and Mr. P.B. Patil, learned counsel for respondent No. 2.

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The respondent No. 2 herein filed a complaint in the Court of Judicial Magistrate, First Class, Soygaon, bearing Criminal Case No. 82/2007 against five accused persons including applicant, Tahsildar, Nayab Tahsildar, Talathi and one Khemraj Jadhav. It is alleged by the respondent No. 2/original complainant that accused No. 1 Khemraj is having land gat No. 208 admeasuring 8-H 30-R situated at Palshi Tq.

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Soygaon. It is further alleged that the respondent No. 2/complainant has purchased 1-H 20-R land out of 8-H 30-R land from accused No. 1 by way of registered sale-deed on 28.1.1994. His name is mutated in the 7x12 extract.

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It is further alleged that there was dispute between

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respondent No. 2 and the accused No. 1 Khemraj, therefore, in the year 2002 the respondent No. 2 filed a Regular Civil Suit No. 29/2002 with

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the allegation that the accused No. 1 took physical possession by force and accused No. 2 to 5 aided him. Thereafter the accused No. 1 Khemraj filed an application to inspect the crops, to the accused No. 3 Tahsildar. Accused No. 5 Talathi gave notice to the complainant and the date for inspection was fixed on 26.06.2002. However, it is allegation of the respondent No. 2/original complainant that they did not turn up to the field and the accused No. 4 and 5 i.e. Nayab Tahsildar and Talathi prepared false panchnama on 27.06.2002. On the basis of that document the accused No. 5 Talathi took entry in the 7x12 extract in cultivation column in favour of accused No. 1 Khemraj. Therefore, the respondent No. 2/original complainant filed an appeal before the present applicant and the applicant granted stay to the mutation entry. It is further alleged that respondent No. 2/original complainant also filed an application before the learned Judicial Magistrate, First Class, on which the learned Magistrate has issued direction under section 156(3) of the Code of Criminal Procedure and upon such direction the first information report is lodged and registered against the applicant and others.

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Mr. Ghanekar, learned counsel for applicant submits that at

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the relevant time when applicant passes certain orders, she was acting as a Deputy Collector and Sub-Divisional Magistrate of the concerned division and in the judicial proceeding she has passed some orders, therefore, the applicant is a “Judge” within the meaning of definition under section 2 of the Judges (Protection) Act, 1985. According to Mr. Ghanekar, learned counsel, the appeal under section 247 of the Maharashtra Land Revenue Code presented by the accused No. 1 Khemraj as well as the appeal presented by the respondent No. 2 /original complainant are judicial proceedings and if certain orders are passed in judicial proceedings then those are passed in the capacity of a 'Judge'. Therefore, there is protection to the applicant under the Judges (Protection) Act, 1985. Hence, Mr. Ghanekar submitted that the trial court is not empowered to take cognizance of the alleged offences.

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As against this, Mr. P.B. Patil, learned counsel for respondent No. 2/original complainant argued that there was no appeable order, therefore, the act of the applicant was without jurisdiction. Mr. Patil, learned counsel for respondent No. 2 further submitted that when there was no order rather appeable it was not expected from the applicant to pass the stay order. Therefore, the act of

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the applicant is illegal, therefore, no protection is available to the applicant, as claimed by her.

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In view of the submissions made by learned counsel for both sides, it is necessary to refer the provisions of section 2 and 3 of the Judges (Protection) Act 1985.

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“2. Definition – In this Act, “Judge” means not only every person who is officially designated as a Judge, but also every person -

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(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

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(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 in to clause (a).

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Additional protection to Judges. -

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(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of subsection (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.

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(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.”

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Looking to the aforesaid provision it appears that at the relevant time the applicant was working as a Deputy Collector and the Sub-Divisional Magistrate in a dwell capacity. When the applicant was acting on administration side her designation is to be considered as

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“Deputy Collector” and when she was acted while dealing with the legal proceedings her designation is “Sub-Divisional Magistrate”. In view of the provision of the Maharashtra Land Revenue Code, 1966, certain powers are assigned to the applicant to deal with the mutation entries, its appeals. In view of the provisions of section 247 of the Maharashtra Land Revenue Code, the applicant is supposed to deliver a definitive judgment in the matters under section 247 of the Maharashtra Land Revenue Code and when the Sub-Divisional Magistrate is acting and exercising the powers under section 247 of the Maharashtra Land Revenue Code then it can be termed as, a person empowered by law to give in any legal proceeding a definitive judgment or a judgment which,

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7 CrAppln 4234 07J if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive. So the applicant squarely falls within the definition of section 2 sub-section (a) of the Judges (Protection) Act.

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From the record it appears that the applicant has passed an order under the provision of section 247 of the Maharashtra Land Revenue Code. Such orders are appeable or revisionable before the learned Collector of the District. From the record it appears that the applicant was acting in her official capacity and has passed certain orders. If at all, order passed by the applicant was wrong or improper then there is remedy to respondent no. 2/original complainant to file revision/appeal before the Collector.

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Mr. Patil, learned counsel for respondent No. 2 submitted that there was no order passed on 16.06.2002 and the respondent no. 2 obtained such information under Right to Information Act. However, from the contents of the present applicant it appears that the mutation entries recorded by the revenue authorities for the period from 1994 to 2002 were under challenge before the applicant and it is contended by the accused No. 1 that he came to know about such entries on 16.06.2002, then obviously, 16.06.2002 is not the date of any order but

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8 CrAppln 4234 07J it is the date of knowledge of accused No. 1 about the mutation entries taken during the period from 1994 to 2002.

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In support of his contention, Mr. Ghanekar, learned counsel for applicant has relied upon the observations of the Division Bench of this Court in case reported in 2012 CRI. L.J. 4053 (E.S. Sanjeeva Rao

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Vs. Central Bureau of Investigation), as well as the judgment delivered by the Single Judge of this Court (Coram : K.L. Wadane, J) and contended that the applicant is a “judge” within the meaning of Section 2 and 3 of the Judges (Protection) Act and the proceedings of the appeal under section 247 of the Maharashtra Land Revenue Code,

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before the applicant is a legal proceeding. In addition to that the applicant has relied upon the proviso of section 237 of the Maharashtra Land Revenue Code, which reads as follows:

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“S.237. Formal and summary inquiries to be deemed

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judicial proceedings :

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(1) A formal or summary inquiry under this Code shall be deemed to be a judicial proceeding within the meaning of sections 193, 219 and 228 of the Indian Penal Code, and the office of any authority holding a formal or summary inquiry shall be deemed to Civil Court for the purposes of such inquiry.

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(2) Every hearing and decision, whether in a formal or summary inquiry, shall be in public, and the parties or their authorised agents shall have due notice to attend.”

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In view of the aforesaid provisions, at the time of granting

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stay order, the applicant made a summary inquiry under the Maharashtra Land Revenue Code, therefore, such proceeding is to be treated as judicial proceeding within the meaning of section 193, 219 and 228 of the Indian Penal Code and the authority holding a formal or summary inquiry shall be deemed a Civil Court for the purpose of such inquiry.

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In view of the aforesaid provisions, the proceedings presented by the accused No. 1 before the applicant under the provisions of Section 247 of the Maharashtra Land Revenue Code is a judicial proceeding and the applicant is deemed to be a Civil Court within the meaning of section 237 of the Maharashtra Land Revenue Code as well as a “judge” within the meaning of section 2 of the Judges (Protection) Act.

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In view of the above, we are of the opinion that the applicant

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is to be protected under the aforesaid provisions and therefore cognizance of the alleged offence cannot be taken against her. Hence, following order is passed.

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ORDER