Narayan Diwakar S/O Late Sh. Chatti Lal vs State Of Maharashtra And Anr

Vidya Amin IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 1620 OF 2016

Narayan Diwakar s/o. Late Sh. Chatti Ltd. ... Petitioner

Vs. The State of Maharashtra & Anr. ... Respondents

Mr. Sanjay Diwakar a/w. Mr. Sushil Gupta, Ms. Rina Mishra i/b. Upendra

Lokegaonkar, Advocate for the petitioner. Mrs. P.P. Shinde, APP for respondent no. 1/State. Mr. H.S. Venegavkar, Advocate for respondent no. 2/CBI.

CORAM : MRS.MRIDULA BHATKAR, J.

RESERVED ON : 22nd December, 2016 PRONOUNCED ON : 1st February, 2017

JUDGEMENT:

Rule. By consent, rule is made returnable forthwith and heard

finally.

2. This Petition is directed against the orders dated 29 th July, 2011 and

15th July, 2015 passed by the learned Special Judge, CBI, Daman in

Sessions Case No. 131 of 2010 under FIR No. 64(A)/93-Bom. rejecting

the application for discharge. The petitioner was working as a Secretary

(Finance) in administration of Daman & Diu, Dadra and Nagar Haveli in

the year 1993. The Collector of Daman went on maternity leave in the

beginning of year 1993 and, therefore, the petitioner was given an

additional charge of the Collector in her absence. At that time, 13

applications seeking permission for N.A. land by original accused nos. 7,8

and 9 were made before the petitioner. The petitioner along with other

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accused, i.e., accused no. 2/Architect and the other staff from his office,

i.e., accused nos. 3 to 6 conspired and without following the proper

procedure, gave permission for N.A. in favour of original accused nos. 7 to

9 thereby causing wrongful gain to them and therefore, was prosecuted for

the offences punishable under section 13(2) r/w. section 13(1)(d) of the

Prevention of Corruption Act and under sections 467, 468, 471, 420 and

120B of the Indian Penal Code. The learned Sessions Judge took

cognizance and issued process on 29 th July, 2011. Thereafter the

petitioner preferred an application for discharge under section 227 of Cr.

P.C. which was rejected by the Special Judge, Daman on 29 th July, 2011.

Hence, this Petition.

3. The learned counsel for the petitioner has submitted that the

petitioner at the relevant time was given an additional charge of Collector

of Daman and, therefore, he has passed the orders of permission for N.A.

land while discharging his duties or functions. The petitioner has passed

the order of N.A. under section 30 of Goa, Daman and Diu Land Revenue

Code of 1968 and thus, under section 165 of the said Code, the Revenue

Officer while deciding any question under the Code is a Revenue Court

and to be treated as a Civil Court. Under section 180 of the Code it shall

be deemed a Civil Court for the purpose of all inquiries. The learned

counsel submitted that the Collector of Daman squarely falls under the

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definition of Judge under section 19 of the Indian Penal Code and thus is

protected under section 3 of the Judges Protection Act. For the purpose of

definition of Judge, the learned counsel relied on Section 2 of the Judges

(Protection) Act, 1985. He submitted that the learned Special Judge of

Daman has erred in appreciating the protection given under section 77 of

the Indian Penal Code and under section 3 of the Judges Protection Act to

the act done by the Judge in discharge of his duties. Granting permission

for non-agricultural land is a judicial decision taken by the Collector. For

the definition of Judge, he relied on-

Section 2 of The Judges (Protection) Act, 1985

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 tive such a judgment as is referred to in CI.

(a).

Section 19 of Indian Penal Code - "Judge"

The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be

definitive, or a judgment which is confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.

He submitted that as the the petitioner acting in the capacity of Collector,

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Daman under the Code is a Judge, he is protected under the Judges

Protection Act so also enjoys immunity to the extent of his judicial

functions.

Section 3 of The Judges (Protection) Act, 1985

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

4. The learned counsel heavily relied on the ratio laid down in the

judgment of Division Bench of the High Court in the case of E.S. Sanjeeva

Rao vs. CBI1, where the meaning of Judge is extensively discussed. The

learned counsel submitted that the Provident Fund officer deciding the

issue of liability to pay provident fund and fixing the amount therein is

declared as a Judge. In order to elaborate his submissions, he relied on

the definition of Judge and submitted that the three ingredients are

required for a Judge - (i) a person is empowered by law; (ii) There should

be a legal proceeding; and (iii) He should give a definitive judgment. All

1 2012 Cri. L.J. 4053

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these factors are present when the petitioner was holding the charge as a

Collector and gave permissions for NA land. He referred and relied on the

report of the Development Commissioner filed on 11 th October, 1993 which

was submitted to the Ministry of Home Affairs wherein the details about the

non-culpability of Narayan Diwakar and the action taken against the

architect is mentioned. He submitted that though a picture is created by

the prosecution that on the last day of his charge as a Collector, the

petitioner gave permissions for NA land hastily in favour of the accused is

incorrect. The Collector has not taken maternity leave for fixed period but

she has extended her leave on the last day also. Moreover, he has been

exonerated from any culpable liability by the Development Commissioner.

He argued that if this Court is going to accept his submissions that he is a

Judge, then giving permission for NA land was the acts done judicially

directly covered under section 77 of Indian Penal Code, which reads thus-

Section 77 of Indian Penal Code - Act of Judge when acting judicially

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.

He submitted that the present petitioner is facing the charge under section

13(1)(d)(i) of the Prevention of Corruption Act, however, there is no

evidence in respect of giving or taking bribe or any evidence on record that

the petitioner has obtained any amount by corrupt or illegal means. The

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petitioner is not a beneficiary of this transaction and the said section

cannot be attracted. There is no material to show that there is any

association of the petitioner and the other accused in whose favour

permissions for NA land were granted. In support of his submissions, he

relied on the following judgments of the Hon'ble Supreme Court:

(i) Subash Parbat Sonavane vs. State of Gujarat2.

(ii) Union of India & Anr. vs. Major J.S. Khanna; and Major

I.C. Lala3.

(iii) Major S.K. Kale vs. State of Maharashtra4.

(iv) S.P. Bhatnagar & Anr. vs. The State of Maharashtra5.

(v) Abdulla Mohammed Pagarkar vs. State (Union Territory of

Goa, Daman & Diu)6.

(vi) R. Balakrishna Pillai vs. State of Kerala7

5. Learned counsel Mr. Venegavkar appearing for CBI has opposed

this Application and submitted that the proceedings before the Collector

under Goa, Daman and Diu Land Revenue Code (for short "Code") is not

a judicial proceedings but to give permission for NA is an administrative

function. He relied on Section 6 of the Code on the point of function of the

Collector wherein it is mentioned that the Collector is in charge of the

2 2002 Cri. L.J. 2787 3 1972 Cri. L.J. 849 (V 78 C 212) 4 AIR 1977 SC 822 5 AIR 1979 SC 826 6 AIR 1980 SC 499 7 AIR 2004 SC 1012

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revenue administration of the district and shall exercise the powers of

superintendence and control within the district and over the officers

subordinate to him. Giving permission for non-agricultural use is covered

under section 30 of the Code, which reads thus-

30. Permission for non-agricultural use.-- No land used for agriculture shall be used for any non-agricultural purpose; and no

land assessed for one non-agricultural purpose shall be used for any other non-agricultural purpose or for the same non-agricultural purpose but in relaxation of any of the conditions imposed at the time of the grant or permission for non-agricultural purpose, except with the permission of the Collector under section 32.

The permission or relaxation of the conditions imposed at the time of grant

of permission of non-agricultural purpose is a function of the Collector.

Section 32 lays down the procedure for conversion of use of land from one

purpose to another. The learned counsel highlighted sub-section (c) of

Section 32 for details of the procedure.

32. Procedure for conversion of use of land from one purpose to another -

(2)(c) may, after due enquiry, either grant the permission on

such terms and conditions as he may specify subject to any rules made in this behalf by the Government; or refuse the permission applied for, if it is necessary so to do to secure the public health, safety and convenience or if such use is contrary to any scheme for the planned development of a village, town or city in force under any law for the time being in force and in the

case of land which is to be used as building sites in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of the occupiers or are suitable to the locality; where an application is rejected, the Collector shall state the reasons in writing of such rejection.

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He argued that the power to exempt the land from the provisions of

Sections 30 to 34 vests with the Government. Hence, these powers are

delegated to the Collector by the Government. He submitted that under

section 180 of the Code though any authority holding a formal or summary

inquiry shall be deemed to be a Civil Court for the purposes of such

inquiry. Though it is a civil court, the Collector is not a Judge while

conducting inquiry in permission for NA. He further submitted that while

deciding the application of permission for NA land, the Collector has to

look into extraneous factors to protect the interest of the public. Section

32 does not state about "order" but has used the word "permission". He

argued that all judgments include decisions but all decisions are not

judgments. He further relied on the definition under section 19 of Indian

Penal Code and submitted that Section 19 contemplates definitive

judgment which is not delivered while deciding application for NA

permission. He further argued that as the Collector is not a Judge, the

present petitioner is not entitled to get the protection under section 3(1) of

the Judges (Protection) Act. Assuming that a Judge gets protection under

section 3(1) of the Judges (Protection) Act, under section 3(2) the

Government is not empowered to prosecute the Judge. Thus, section 3(2)

controls section 3(1) of the Judges (Protection) Act.

6. On facts, the learned counsel Mr. Venegavkar argued that the

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petitioner was holding the additional charge of Diu, Daman as a Collector

and the date on which he was supposed to vacate the charge, he gave 13

permissions for NA land to the co-accused. He relied on the statements of

regular Collector Smt. Satbir Silas who has stated that there are glaring

irregularities and in a day such permissions cannot be granted. He also

relied on the statement of Mr. P.L. Patel and one Swadeen Badmera from

the Town Planning Department. Learned APP submitted that situations in

Town Planning map was changed and simultaneously the plan was forged

on 7th April. 1993 by co-accused Architect Tapas Neogy and the orders

were passed on the next day, i.e., 8th April, 1993. On the same day forged

plan was approved from the Town Planning Committee. Thus, the order

passed by the Court is to be maintained.

7. The learned counsel Mr. Diwakar, in reply, has submitted that

section 3(2) does not override section 3(1) of the Judges (Protection) Act.

In support of his submissions, the learned counsel heavily relied on the

judgment of E. Sanjeeva Rao (supra). He again pointed out Section 77 of

Indian Penal Code, which is an exception to the offence when a person is

acting judicially in exercise of powers. The learned counsel submitted that

the accused has acted judicially in exercise of powers, as he was sitting

Judge at the relevant time. The powers of the Collector acting under Goa,

Diu and Daman Land Revenue Code are not sub-delegation but the

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powers are given directly from the Code itself. He argued that Section 180

covers the entire code and for every inquiry under the code and under

section 165 of Goa, Daman and Diu Land Revenue Code of 1968 it is a

Civil Court.

8. Perused the order passed by the learned Sessions Judge, the

record and case laws placed before me.

9. The main submissions of learned counsel for the petitioner is based

on Section 165 of Goa, Daman and Diu Land Revenue Code of 1968

wherein it is mentioned that Revenue Court is to be treated as Civil Court

when it deals with enquiries. Section 165 reads thus-

165. Revenue Court.-- (1) A revenue officer not below the rank of Mamlatdar, while exercising jurisdiction under this Code or any

other law for the time being in force to inquire into or to decide any question arising for determination between the Government and any person or between parties to any proceedings, shall be a revenue court.

(2) A revenue Court shall be deemed to be a Civil Court for the purposes of enquiries under this Code.

Thus, the Collector while conducting an enquiry under section 32 of the

Act, he determines a question or decides it. The section states that when a

revenue officer has to enquire into or to decide any question arising for

determination between the Government and any person to any

proceedings shall be a revenue court. Further it is to be plainly interpreted

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that by virtue of section 165(2) a Revenue Court shall be treated a Civil

Court and there cannot be any other different interpretation to that.

However, the learned counsel has interpreted sub-section (2) of Section

165 conveniently that a Revenue Court shall be deemed to be a Civil

Court for the purposes of enquiries in the Court, therefore, a Collector

presiding over the said Court be treated as a Judge. The supplemental

inference drawn by the learned counsel is fallacious. A Judge is always a

part of the Court, however, still the duties, norms, character, qualities of a

Judge are totally different, therefore, an establishment, set up and

proceedings and Presiding Officer may form a Court yet that Presiding

Officer sometimes cannot have a status of a Judge. Thus, the Judge is

that entity who sits in a Court as a part of a Court, however, not

necessarily in each case the Presiding officer who is discharging the

duties of determining a question or the issue, is a Judge. Similarly, all

judgments are decisions, however, all decisions are not necessarily

judgments. For this interpretation, one finds help inbuilt. In Section

165(1) the legislature has used the word "revenue officer" and it ended

with "shall be a revenue court". Similarly, in Section 165(2), it has used

the word "revenue Court shall be deemed to be a Civil Court". Nowhere in

this section pertaining to enquiry, the legislature has used the word

"Judge" but has used the word "Court". The legislature did not intend that

revenue officer under the Code shall be deemed to be a Judge. The

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legislature deliberately and carefully have drafted Section 165(2) by

saying that a Revenue Court shall be treated to be a Civil Court. Thus,

under the Code, the Collector does not enjoy the immunity which is

available under Section 3 of the Judges Protection Act of 1985 and under

section 77 of Indian Penal Code.

10. In India, originally all lands are agricultural or forest lands.

Whenever there is town planning or construction, a permission for various

zones are required to be sought from the authority, i.e., Collector under

Land Revenue Code. Under the Code, the power of the Government to

collect revenue is regulated. The Collector has to verify the documents,

purpose, request made by the applicant and grant permission to use the

land for non-agricultural purpose.

11. Section 180 deals with formal and summary enquiries-

180. Formal and summary inquiries to be deemed judicial proceedings.-- (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 a civil court for the purposes of such inquiry.

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

12. Section 193 of Indian Penal Code is about the punishment for giving

false evidence. Under Section 219, if public servant acting corruptly or

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maliciously, then he can be punished. Under Section 228, if anybody

intentionally insults or interrupts the public servant sitting in judicial

proceeding, he can be penalized. Thus, the legislature wants to give

protection to a Collector while conducting formal or summary enquiry and

also takes care that the evidence coming before the Collector should not

be false but truthful and similarly intends to maintain the sanctity of the

proceedings. Therefore, the proceedings of formal and summary enquiries

deemed to be judicial proceedings.

13.

Besides formal and summary enquiries there are ordinary enquiries

which are dealt with under section 181 of the Code, which reads as under:

"181. Ordinary inquiries how to be conducted.-- An inquiry which this Code does not require to be either formal or summary, or

which any revenue or survey officer may on any occasion deem to be necessary to make, in the execution of his lawful duties,

shall be conducted according to such rules applicable thereto, whether general or special, as may have been prescribed by the Government, or an authority superior to the officer conducting such inquiry, and except in so far as controlled by such rules,

according to the discretion of the officer in such way as may seem best calculated for the ascertainment of all essential facts and the furtherance of the public good."

14. Thus, the code lays down the procedure of three types of inquiries

(i) Formal; (ii) Summary; and (iii) Ordinary. As rightly pointed out by

learned counsel Mr. Diwakar, under section 180, when any authority

holding formal or summary inquiry, then the authority is deemed a Civil

Court for the purposes of such inquiry. However, grant of permission for

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NA is neither a formal nor summary inquiry but it is an ordinary inquiry.

In Clause (c) of sub-section (2) of section 32 of the Code, the adjective

before the inquiry used is due inquiry. It means appropriate or proper

enquiry. After going through the procedure laid down in Section 32 of the

Code, I am of the view that the inquiry is neither a formal nor a summary

but it is an ordinary inquiry. Hence, not covered under section 180 of the

Code, so the proceedings of ordinary inquiry is not deemed to be judicial

proceedings.

15.

The submissions of Mr. Venegavkar that the word "order" is not

used in Section 30 or 32 which directly deal with permission for NA land

also have substance. The status/function or power of the Collector acting

under the Code is distinguishable from the function and the powers of the

Regional Provident Fund Commissioner working under Section 7A of the

Employees Provident Fund and Miscellaneous Provisions Act, 1952 which

was a subject matter before the Division Bench of this Court in the case of

E. Sanjeeva Rao (supra). Section 7A reads as under:

"7A. Determination of moneys due from employers. - (1) The Central Provident Fund Commissioner, any Additional Central

Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner or any Assistant Provident Fund Commissioner may, by order,

(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and

(b) determine the amount due from any employer under any

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provision of this Act, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem

necessary.

(2) The officer conducting the inquiry under sub-section 1 shall, for the purposes of such inquiry have the same powers as

are vested in a court under the code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely:-

(a) enforcing the attendance of any person or examining him on oath:

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses, and

any such inquiry shall be deemed to be a judicial proceeding

within the meaning of sections 193 and 228, and for the purpose of section 196 of the Indian Penal Code 45 of 1960.

(3) .....

(3A) ......

(4) ......

(5) ...."

16. On bare perusal of Section 7A of the Employees Provident Fund

and Miscellaneous Provisions Act and Sections 30 and 32 of the Code, it

can be easily gathered that the procedure laid down and the work of

Provident Fund Commissioner and the powers enjoyed by him acting

under section 7A of the Act are entirely different than the Collector using

his power under sections 30, 32 of the Code. The words used in Section

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7A are : 'Determine the amount'. Under both the sections, though both the

officers are conducting inquiry, the procedure laid down of the inquiry

under sub-section (2) of Section 7A is specific and akin to judicial

proceeding wherein Presiding officer enjoys the powers to enforce the

attendance of person or the power of discovery and production of

document so also the receiving evidence on affidavit and examines

witnesses on oath. However, such procedure is absent under section 32

of the Code and therefore, this is an ordinary inquiry conducted by the

Collector. Thus, the procedure laid down to carry out the function of the

Provident Fund Commissioner under section 7A of the Employees

Provident Fund and Miscellaneous Provisions Act, 1952 is very much

distinguishable from the enquiry conducted for giving NA permission for

the land by the Collector acting under section 32 of the Code and,

therefore, the ratio laid down in the case of E. Sanjeeva Rao (supra) is

not applicable in the present case.

17. The learned counsel for the petitioner has relied on case laws in

order to illustrate the meaning and scope of the offence defined under

section 13(1)(d)(i) of the Prevention of Corruption Act. The ratio of those

cases is culled out as follows:

In the case of Subash Parbat Sonvane vs. State of Gujarat

(supra), the Hon'ble Supreme Court while dealing with the offence under

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section 13(1)(d)(i) has reproduced the finding given in the case of Ram

Krishan and Anr. vs. The State of Delhi (1956) SCR 183 -

"The word "obtains", on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to

be given, though it connotes also an element of effort on the part of the receiver. One may accept money. This is offered or solicit payment of a bribe or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by

abusing his position as a public servant."

Further, the Supreme Court has observed that -

"It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely

irrespective of motive or reward for showing favour or disfavour."

18. This observation is limited to the obtaining for oneself, however,

section 13(1)(d) is also extended to a valuable thing or pecuniary

advantage or any other person by abusing his position or without any

public interest.

19. In the case of Major S.K. Kale (supra) and S.P. Bhatnagar (supra)

the Hon'ble Supreme Court has discussed the meaning of "abuse of

position by public servant" in Section 5(1)(d), however, at this stage of

discharge on the basis of documents which are produced by the

prosecution, prima facie it appears there is abuse by the present applicant.

While applying the ratio laid down in any case, the facts of the case in

hand are to be taken into account.

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20. In the case of Abdulla Mohammed Pagarkar (supra) the Hon'ble

Supreme Court held that strong suspicion against the accuse due to

irregularities in the execution of work is not sufficient for conviction.

Hence, this observation is not useful in the present case.

21. In the case of R. Balakrishna Pillai (supra) the Hon'ble Supreme

Court had opportunity to deal with the criminal misconduct by the public

servant as contemplated under section 5(1)(d) of Prevention of Corruption

Act and has discussed the concept of 'actus reus' and 'mens rea'. Even

the ratio laid down in this case is not useful to the present

applicant/accused.

22. The evidence placed before this Court, facts of the case and the

circumstances and manner in which the offence is committed, have

cumulative effect and considering all these aspects, there is evidence to

frame charge against the accused. Hence, is not a case for discharge.

Writ Petition is dismissed.

(MRIDULA BHATKAR, J.)

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