Rajasthan High Court - Jaipur
(Hari Shankar Bhardwaj vs . State Of Rajasthan & Ors.) on 5 January, 2016
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R SB Criminal Misc.Petition No.2031/2013 (Hari Shankar Bhardwaj Vs. State of Rajasthan & ors.) Date of Order ::::::: 05.01.2016 PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.Mahesh Gupta and Mr.Rajendra Kumar Sharma, for the petitioner. Mr.Anurag Sharma, Additional Advocate General for the State. Mr.G.P.Sharma and Mr.M.C.Sharma, for the applicant-Shri Nanag Ram Sharma. **** BY THE COURT:
The accused-petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. with a prayer to quash FIR No.203/2013 registered at Police Station Anti-Corruption Bureau, Jaipur for the offence under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereienafter to be referred as the Act) and for offences under Sections 166, 167, 218, 465, 471 read with Section 120-B IPC to his extent.
Brief relevant facts for the disposal of this petition may be stated as below:-
(1) Agriculture land comprising Khasra Nos. 3392, 3398, 3399, 3400, 3401 and 3405 total area 77 bigha and 15 biswa initially stood in the name of co-accused-Shri Ranveer Singh in the revenue records, but by way of order dated 24.11.1960 passed in Mutation Proceedings No.16 of the year 1960, the same was ordered to be mutated in the name of complainant-Shri Nanag Ram and some other persons by the concerned Gram Panchayat and thereafter in the revenue record name of the complainant and other persons was entered as khatedar-tenant.
(2) Co-accused-Shri Ranveer Singh challenged the order dated 24.11.1960 by way of Appeal No.17/2001 before SDO Amer, Headquarter Jaipur, but the appeal was dismissed vide order dated 12.04.2009 on the ground that the appeal is barred by limitation.
(3) The order dated 12.04.2009 passed by SDO Amer was further challenged by co-accused-Shri Ranveer Singh in Second Appeal No.71/2002 before the Divisional Commissioner, Jaipur and the second appellate Court vide order dated 22.10.2009 partly allowed the appeal and set aside the order dated 12.04.2002 and the matter was remanded back to SDO Amer with a direction to re-consider the matter and to pass a fresh order after affording opportunity of hearing to both the parties.
(4) The aforesaid order of Divisional Commissioner, Jaipur was challenged by the co-accused-Shri Ranveer Singh as well as by complainant-Shri Nanag Ram and others by two separate revision petitions filed before the Board of Revenue, Rajasthan, Ajmer. Co-accused-Shri Ranveer Singh filed Revision Petition No.1174/2010 whereas Nanag Ram and others filed Revision Petition No.280/2010. As both the aforesaid revision petitions were filed against the same order of Divisional Commissioner, Jaipur, they were connected and listed together before the Single Bench of the Board of Revenue from time to time till 5.7.2012 as per Section 55 of the Rajasthan Land Revenue Act, 1956 and the practice prevailing in the Board.
(5) On 5.7.2012, both the aforesaid Revision Petitions were listed before the petitioner as Member of the Board of Revenue in Court No.4 alongwith other cases and whereas Revision Petition No.280/2010 was listed at S.No.44 of the daily cause list, Revision Petition No.1174/2010 was listed at S.No.45. These petitions were listed in the category of orders on applications.
(6) On 5.7.2012, although the aforesaid Revision Petition No.1174/2010 filed by the co-accused-Shri Ranveer Singh was not listed for final hearing or final disposal, but even then, the petitioner as Member of the Board finally heard counsel for the co-accused-Shri Ranveer Singh in absence of counsel for the complainant-Shri Nanag Ram and others and judgment/order was reserved whereas the Revision Petition No.280/2010 was adjourned for 26.7.2010. It is to be noted that in the order-sheet of Petition No.1174/2010, it was recorded that counsel for the complainant and others did not appear before the Court despite they were called upon to appear before it whereas in the other petition presence of the counsel for the complainant and others was marked.
(7) On 17.7.2012 final judgement was passed and pronounced by the petitioner as Member of the Board of Revenue in Revision Petition No.1174/2010 without listing it in the daily cause list in the category of pronouncement of judgment/order as required under Rule 63 of the Rajasthan Revenue Courts Mannual, 1956.
(8) On 5.7.2012 itself at 3.30 p.m. complainant-Shri Nanag Ram Sharma filed an application under Section 151 CPC before petitioner with a prayer to release the case from his Bench and not pass judgment in it but the application was dismissed by the petitioner on the same day with the observation that once final arguments have been heard in the matter, it would not be proper to consider such an application. In the application, apart from other facts, it was specifically mentioned that the complainant has lost faith in the petitioner and he intends to file application for transfer of the case before Chairman.
(9) The complainant-Shri Nanag Ram Sharma on 10.7.2012 filed a detailed application before Chairman of Board of Revenue with a prayer to release the aforesaid case from the Court of the petitioner. No immediate action was taken on this application and in the meanwhile judgment was pronounced on 17.7.2012.
(10) Complainant-Shri Nanag Ram Sharma moved an application on 19.7.2012 under Section 151 read with Order 41 Rule 5 CPC before petitioner with prayer to suspend the operation of judgment dated 17.7.2012 and to grant time to him and others so that the aforesaid order can be challenged before High Court, but vide order dated 20.7.2012 petitioner issued notice to other party and no effective order was passed on this application till 1.8.2012 and in the meantime on the basis of judgment dated 17.7.2012, mutation was opened by the Tehsildar in favour of co-accused-Shri Ranveer Singh on 23.7.2012.
(11) Complainant-Shri Nanag Ram Sharma filed a complaint on 6.9.2012 before ACB, Jaipur upon which preliminary inquiry No.179/2012 was registered. It is to be noted that after initial inquiry no offence was found to have been committed by petitioner and it was found that petitioner passed judgment dated 17.7.2012 as a Judge and his act is protected under Section 3 of the Judges (Protection) Act, 1985 and no civil or criminal proceedings can be undertaken against him in any Court, but at the same time it was concluded that the judgment has been passed in violation of some legal provisions.
(12) The self contained note prepared by ACB was sent by it vide letter dated 26.12.2012 to Chairman, Board of Revenue for necessary departmental action against the petitioner and the same was further sent by Chairman vide letter dated 2.1.2013 for necessary action to Principal Secretary, DOP, Rajasthan.
(13) Principal Secretary, DOP, Rajasthan vide letter dated 11.2.2013 sought comments from Chairman, Board of Revenue on the self contained note prepared by ACB and the Chairman vide letter dated 26.4.2013 after inquiring into the matter opined that no further action is required to be taken against the petitioner.
(14) Dissatisfied with the aforesaid self contained note prepared by ACB, complainant submitted a representation to Chief Secretary, Government of Rajasthan on 5.3.2013 on which opinion of the Law Department was sought which opined that from the facts available in the preliminary report prepared by ACB offences under IPC and the Act are disclosed. Opinion of the Law Department was forwarded by the Chief Secretary to ACB, who after thorough examination and consultation registered FIR No.203/2013 against petitioner and others for offence under Section 13 (1) (d) read with Section 13 (2) of the Act and for offences under Sections 166, 167, 218, 465, 466, 471 and 120-B IPC and investigation was undertaken.
It was submitted by the learned counsel for the petitioner that the judgment dated 17.7.2012 has been passed by the petitioner as a Member, Board of Revenue while discharging his judicial function and, therefore, he was acting as Judge within the meaning of Section 2 of the Judges (Protection) Act, 1985 and he is protected under Section 3 of the said Act as it provides thatno 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. It was further submitted that the judgment passed by the petitioner in the capacity of a Judge cannot be allowed to be made subject of scrutiny by ACB, more particularly in view of the fact that the same is under challenge before High Court by way of Writ Petitions filed by the complainant and others. Inviting attention of the Court towards Section 77 IPC, it was also submitted that 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. According to learned counsel for the petitioner, the petitioner acting as member of Board of Revenue believed in good faith that he is empowered to hear and decide the revision petition finally after affording opportunity of hearing to counsel for the parties and, therefore, no offence can be said to have been committed by him if he has decided the aforesaid revision petition. It was submitted that if for the sake of arguments allegations made in the FIR are taken to be on their face value and considered to be correct even then no offence under the provisions of Act is disclosed as it is not the case of even prosecution itself that petitioner demanded and obtained bribe from any person including complainant. It was submitted that it is well settled legal position that for an offence to be made out even for an offence under Section 13 (1) (d) of the Act, it is to be shown that demand of bribe was made by a public servant and it was accepted by him. It was further submitted that otherwise also only allegation against the petitioner is that judgment dated 17.7.2012 was passed by him without following the prescribed procedure or in violation of some of the legal provisions but merely by that reason, criminal proceedings cannot be initiated against him and at the most departmental action can be taken against the petitioner. In this regard, attention of the Court was brought towards the fact that after undertaking preliminary inquiry on the complaint, ACB came to a definite conclusion that no offence is disclosed against petitioner and at the most he is liable for departmental action and a detailed report to that effect was submitted before Chairman, Board of Revenue and Chairman in his detailed comments dated 26.4.2013 clearly opined that no action of any kind is necessary to be taken against the petitioner, but later on under the pressure and influence of some higher authorities, ACB changed its stand and registered FIR. It was submitted that ACB cannot be allowed to undertake scrutiny of a judgment passed by a Court and the same can be challenged only before a proper forum. It was submitted that no other offence also for which the FIR has been registered is made out against the petitioner. Learned counsel for the petitioner posed a question before the Court what would happen if the petitioner is compelled to face the criminal prosecution and on the other hand judgment in question is upheld by Honble High Court in the writ petition filed by the complainant and others.
In support of his submissions, learned counsel for the petitioner relied upon the cases of Rajesh Verma Vs. State of Rajasthan & others reported in 2014 (2) WLC (Raj.) 441, Iqbal Singh Marwah & anr. Vs. Meenakshi Marwah & anr. reported in AIR 2005 (SC) 2119 and U.P.Judicial Officers Association Vs. U.O.I. & Ors. reported in 2003 (1) WLC (SC) Criminal 59.
On the other hand learned Additional Advocate General Shri Anurag Sharma assisted by learned counsel for the complainant, submitted that there is no absolute immunity to a Judge under the provisions of the Judges (Protection) Act even if an order has been passed by him in discharge of his judicial function and he is protected only when he acts bonafidely in accordance with law after following the established procedure of law, but if he acts malafidely by entering into criminal conspiracy and illegally passes an order and deliberately ignores the relevant legal provisions and in violation of the established procedure, then he is not protected under the provisions of the said Act. It was further submitted that sub-section (2) of Section 3 of the Judges (Protection) Act empowers the State Government to undertake criminal proceedings even against a person who is or was a Judge and provisions of sub-section (1) does not bar such an action against a Judge for an act committed by him while acting in the discharge of his judicial function. It was also submitted that exception as provided under Section 77 IPC is applicable only when the Judge acts judicially in good faith. It was contended that an act done by a Judge with malafide intention can never be said to have been done by him judicially in good faith. It was submitted that the allegations made in the FIR, material placed on record and the evidence collected during investigation prima facie shows malafide intention of the petitioner as a public servant, who entered into criminal conspiracy with co-accused-Shri Ranveer Singh and with a malafide intention to provide undue advantage to him passed the order in question without following rather ignoring the established procedure of law and violating the relevant legal provisions. It was also submitted that the appeal filed by the co-accused-Shri Ranveer Singh was dismissed by the SDO as time barred without going into the merits of the case whereas Divisional Commissioner by partly allowing the second appeal filed by the co-accused set aside the order of SDO and remanded the matter to him with direction to decide the appeal on merit and, therefore, in these circumstances the petitioner as a member of Board of Revenue at the most could have remanded the case back to Divisional Commissioner with a direction to decide the second appeal on merit that too after considering both the revision petitions together but the petitioner with a malafide intention proceeded to decide the revision petition filed by the co-accused only on merit by adopting a procedure unknown to law and not only set aside the order passed by the Divisional Commissioner and SDO but also the order dated 24.11.1960 passed by the Gram Panchayat and taking advantage of the order passed by the petitioner, co-accused-Shri Ranveer Singh succeeded to get his name entered into revenue record as khatedar tenant. To show mis-conduct on the part of the petitioner, learned Additional Advocate General and counsel for the complainant invited attention of the Court particularly towards following facts:-
(1) Both the revision petitions were already consolidated and on 5.7.2012 also they were listed together as connected cases but even then the petitioner without prayer by any of the parties separated them without passing any order of separation and proceeded to decide finally the petition filed by the co-accused on merit whereas adjourned the other petition.
(2) In the petition filed by the co-accused-Shri Ranveer Singh absence of counsel for the complainant and others was marked whereas in the other petition his presence was recorded. In other cases which were listed before petitioner on 5.7.2012, presence of advocate Shri Hemant Sogani was marked.
(3) The petition filed by co-accused was listed on 5.7.2012 for orders on interim applications but none of the applications was considered and decided by the petitioner and straightaway exparte final arguments on the main petition were heard and judgment was reserved.
(4) Although, the petitioner was not bound to fix any date for pronouncement of the judgment, but as per Rule 63, the case was required to be shown in daily cause list on the date on which the judgment was proposed to be pronounced but the judgment was pronounced on 17.7.2012 without notice to any party.
(5) On 5.7.2012 itself a detailed application with affidavit was filed by the complainant before petitioner with a prayer not to decide the case as he has lost faith in the petitioner but even then he proceeded to decide the same.
It was also submitted that although after conducting preliminary inquiry initially ACB opined that no offence can be said to have been committed by petitioner and in this regard a detailed self contained note/report was also prepared, but on objection being made by the complainant, at the behest of the Chief Secretary, opinion of Law Department was sought and on that opinion and after consultation with complainant, the matter was re-considered and re-examined. It was further contended that allegations made in the complaint/FIR, material made available on record and the evidence collected during investigation prima facie disclose the essential ingredients of the offence for which the FIR has been registered and present case is not of that rare or exceptional category, which is enumerated by Honble Supreme Court in the case of Bhajan Lal. Inviting attention of the Court towards clause (d) of sub-section (1) of Section 13 of the Act, it was contended that if a public servant by corrupt or illegal means or by abusing his position as a public servant or while holding some office as a public servant obtains any pecuniary advantage even for any other person without any public interest, he is guilty of criminal mis-conduct within the meaning of Section 13 of the Act and in the present case petitioner has mis-conducted himself illegally passing the order in question which put the co-accused-Shri Ranveer Singh in an advantageous position as on the strength of this order he got his name entered in the revenue record as khatedar tenant of the land in dispute. It was finally submitted that the manner in which the order dated 17.7.2012 has been passed and the overall conduct of the petitioner puts question mark on his bonafides and the prosecution/complainant must get opportunity to prove the case against the petitioner during trial. Learned Additional Advocate General relied upon the order dated 23.9.2011 passed by a Division Bench of Madhya Pradesh High Court in the case of Smt.Meena Mehra Vs. Lokayukt Organization, Bhopal (Writ Petition No.5959/2008) and on the case of Shantu Lal Sharma Vs. State of Rajasthan reported in 2005 (2) Cr.L.R.(Raj.) 1370.
On consideration of submissions made on behalf of the respective parties, allegations made in the FIR, material made available on record and the evidence so far collected during the course of investigation, I prima facie found that there is sufficient evidence showing involvement of the petitioner in the incident and offence under Section 166 IPC, offence under Section 13 (1) (d) read with Section 13 (2) of the Act and Section 120-B IPC is prima facie disclosed against the petitioner at this stage of the proceedings and he is not entitled to get protection of Section 3 of the Judges (Protection) Act as well as Section 77 IPC. It is well settled legal position that FIR registered for an offence against a person can be quashed at the preliminary stage only when the allegations made in it and the evidence collected during investigation do not disclose even prima facie the essential ingredients of the offence for which it has been registered. In the present case, prima facie it is made out that the petitioner entered into criminal conspiracy with the co-accused and with a malafide intention and to provide undue advantage to co-accused-Shri Ranveer Singh passed order dated 17.7.2012 without following rather ignoring the established procedure of law and violating the relevant provisions and as a result of the order in question co-accused-Shri Ranveer Singh was succeeded to get the mutation of the land in dispute in his favour. For an offence under Section 120-B IPC to be made out well settled legal position is that for such an offence it is very hard to collect direct evidence and the same can be shown to have been committed on the basis of circumstantial evidence also. In the present case, the manner in which the order has been passed prima facie shows criminal conspiracy on the part of the petitioner and the co-accused. Although, as per sub-section (1) of Section 3 of the Judges (Protection) Act criminal proceedings cannot be entertained against a Judge for any act committed by him in the course of acting in the discharge of his judicial function but at the same time sub-section (2) thereof empowers the State Government to take such action by way of criminal proceedings against such a Judge. Thus, it is clear that a Judge is not absolutely immune from criminal proceedings even for his act done in the discharge of his judicial function. Division Bench of M.P.High Court by way of order dated 23.9.2011 passed in the aforesaid case has held that Section 3 (1) of the Judges (Protection) Act neither creates any legal bar against investigation into the allegations leveled against a Judge nor contemplates sanction of any authority therefor. It was held that the provisions of Section 3 of the said Act do not operate as legal bar to investigate into allegations against a Judge for any act done by him in the discharge of his judicial function. Relying on sub-section (2), it has further been held that sub-section (1) does not in any way take away or abrige the powers of the State Government to initiate such action whether by way of civil, criminal or departmental proceedings or otherwise against any person who is or was a Judge. In the case of Ravi Shankar Srivastava Vs. State of Rajasthan reported in 2005 (2) WLC (Raj.) 612, Single Bench of this High Court has held that sub-section (2) of Section 3 of the Judges (Protection) Act empowers the State Government to take action against any person, who is or was a Judge. In that case also the petitioner was member of Revenue Board of Rajasthan and was discharging judicial functions. Allegations of acceptance of gratification was made against him and after conducting preliminary inquiry formal FIR was registered against him which was challenged by way of writ petition. In the facts and circumstances of that case, it was held that an inquiry can be initiated against a Judge also as per sub-section (2) of Section 3 of the Judges (Protection) Act. It was also held that FIR cannot be said to be false and case is not such that if allegations in FIR are accepted at their face value, it does not disclose any cognizable offence and with these observations High Court refused to quash the FIR. In the case of Shantu Lal Sharma Vs. State of Rajasthan reported in 2005 (2)Cr.L.R.1370, it has been that the special protection conferred by Sections 2 and 3 of the Judges (Protection) Act is not unboundened and unqualified. If a Judge acts with corrupt motive and abuses his position as public servant, then he is not protected. So far as Section 77 of IPC is concerned, it is applicable only when an act is done by a Judge judicially in good faith. In the present case it is alleged in the complaint that the petitioner has acted malafidely after entering into criminal conspiracy with co-accused-Shri Ranveer Singh and deliberately ignored and by passed the established procedure of law and in violation of the relevant legal provisions passed the aforesaid order with a sole view to provide undue advantage to co-accused. The case of Rajesh Verma Vs. State of Rajasthan on which reliance has been placed on behalf of the petitioner is of no help to him as it is based on entirely different facts. In that case it was found that no ingredients were set up showing that public servant disobeyed any direction of law.
In the present case so far as offences punishable under Sections 167, 218, 465, 466 and 471 IPC are concerned, the same are not made out against the petitioner even prima facie.
Consequently, as a result of aforesaid discussion the criminal misc.petition is partly allowed and the FIR No.203/2013 registered at Police Station Anti-Corruption Bureau, Jaipur to the extent of petitioner for the offences under Sections 167, 218, 465, 466 and 471 IPC is quashed and set aside, but so far as for offence under Section 166 IPC and for offence under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 read with Section 120-B IPC is concerned, the petition is dismissed. The stay application also stands disposed of.
(PRASHANT KUMAR AGARWAL) J teekam (Reserved order) All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary