Om Prakash vs Surjan Singh

S.L. Kochar, J.

The applicant Omprakash Shrivastava is a Tehsildar and against him non-applicant has filed a criminal complaint before JMFC, Sanwer. The main crux of the complaint is that applicant was posted as Tehsildar and passed order dated 15.7.1999 in Case No. 2/A74/97-98 though he was not having jurisdiction to hear and decide this case. The review permission was granted by order dated 15.9.1998 in favour of the non-applicant by Additional Collector, Indore and the review petition should have not been heard by the applicant because according to distribution memo, he was not having jurisdiction to hear the same and he should have forwarded this file before the appropriate Court/Authority. The applicant heard the review petition which was in respect of some mutation proceeding and did not consider the review on the ground that between the parties Civil and Criminal cases are pending before the judicial Courts. Therefore, as per provision u/s 10 of the CPC 1908, the decision rendered by the Civil Court would be binding upon the revenue Court. Therefore, no order could be passed in this review petition. The applicant has closed the case.

The contention of the L.C. for applicant is that as per provision u/ Section 31 of the M.P.L.R. Code, he acted as revenue Court. Against passing of the order dated 15.7.1999, the non-applicant was having remedy by way of filing appeal and he had filed the appeal and the same was dismissed. The learned Counsel has submitted that in view of the provisions of the judges (Protection) Act, 1985 (for brevity "the Act"), the applicant is also protected since he acted as a revenue Court and his function also fails within the definition of ''Judge'' as defined in Section 2 of this Act and for passing any illegal order or order without jurisdiction, he cannot be prosecuted by way of filing criminal complaint in view of the provision of Section 3 which has given full protection to the person who acted as Judge. The learned Counsel has also placed reliance on a judgment passed by this Court, in Criminal Revision No. 550/2001 Harbhajanlal Anand v. State of M.P. On these points, the counsel for applicant prayed for quashing of the proceedings because the Court below has no jurisdiction to entertain criminal complaint filed by the non-applicant in view of the provision of Sections 2 & 3 of the Judges (Protection) Act, 1985.

On the other hand, the learned Counsel for non-applicant submitted that at this stage, when only process has been issued by the learned JMFC, the same cannot be looked into in the petition filed u/s 482 of the Code of Criminal Procedure The contention of the applicant can be considered at defence state by the learned JMFC. The learned Counsel has placed reliance on judgments reported in 1992 (2) MPJR 159 Kailash Chandra Batham v. Gangaram Singh and 2003 (1) MPJR 5(CG) Smt. Girija Tiwari v. State of Chhattisgarh and Ors.

Having heard the learned Counsel for parties and after perusing the record, this Court is of the view that the criminal complaint filed by the non-applicant against the applicant who acted as a revenue Court and who has been fully protected as per provision u/s s 2 and 3 of the Act which reads as under:

Definition-In this Act, "Judge" means not only every person who is officially designated as a judgment 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).

Additional Protection to Judges-(l) 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 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.

Under Section 31 of the M.P.L.R. Code, the Tehsildar is designated as a revenue Court. The order dated 15.7.1999 is clearly spelling that the applicant passed the order as a revenue Court on review petition filed by the applicant and he acted in capacity of revenue Court. As per provision u/s 3 of the Act, his action is fully saved and learned JMFC has no jurisdiction to entertain or continue any civil or criminal proceeding against him. The action of the learned Magistrate issuing process against the applicant who acted as a ''Judge'' is wholly misconceived and without jurisdiction. Therefore, there is clear abuse of process of Court of law.

There is no force in the arguments submitted by the learned Counsel for non-applicant. Both the judgments are not at all relevant in the fact and circumstances of the present case. In Kailash Chandra''s case (supra), it was the question of consideration of defence version was involved at initial stage whereas in Smt. Girija Tiwari''s case (supra) one police officer was prosecuted for preparing false and forged documents. Both the cases are not resulting to the provisions of the Judges (Protection) Act, 1985.

In view of the above mentioned legal and factual position, the act of the applicant by passing order dated 15.7.1999 in the capacity of revenue Courtis fully protected by the provisions of Sections 2 and 3 of the Act. Even if he has passed the order without jurisdiction he cannot be prosecuted by the non-applicant by way of filing criminal complaint.

Therefore, this petition is allowed. The proceeding pending before the JMFC, Sanwer in Criminal Case No. 517/2002 is hereby quashed.

As a result of the aforesaid order, M. Cr.P. No. 2886/2002 also stands disposed of.