Narayan Diwakar vs C.B.I.
2006 Latest Caselaw 413 Del

JUDGMENT

R.C. Jain, J.

Page 891

1. The petitioner, who was a member of Indian Administrative Services (1969 Batch), and retired from the said service on 30.6.2004 on attaining the age of superannuation, has filed this petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. for issuing a writ/order or direction to quash 30 FIRs, fully detailed in Annexure P-5 to the petition, and any other FIR(s) registered by the respondent/CBI in respect of the revival of the Co-operative Group Housing Societies (in short 'CGHS') during the tenure of the petitioner as Registrar Co-operative Societies, Delhi ('RCS') from March, 2001 to 30th June, 2004 or for deletion of his name from the said FIRs.

2. Before adverting to the various grounds and pleas on which the quashing of the said FIRs is being sought, it will be useful to notice the background which formed the genesis for the registration of the said FIRs. A Division Bench of this Court, seized of a WP(C) 10066/2004, titled as Yogi Raj Krishna Cooperative Group Housing Society Ltd. v. DDA, on a consideration of the matter directed the CBI to inquire/investigate in the cases of 135 Cooperative Group Housing Societies. The relevant portion of the order of the Division Bench dated 2.8.2005 reads as under:-

We direct the Director of CBI to conduct a thorough investigation in all the matters of 135 Cooperative Societies. It has been stated that in case of Page 892 four societies the cases have been registered and the apprehension expressed by this Court in the earlier orders of a nexus between the builders taking over the Cooperative Movement in Delhi has been found to be correct. It is unfortunate that the same has been done, prima facie, as it seems in connivance with the office of the Registrar of Cooperative Societies and the office of the DDA. Land in Delhi is allotted at a predetermined rate and not on the basis of the market value of the land. Cooperative Societies were formed in order to have flats at affordable prices by the middle income group and lower income group. It is the element of profit making in view of difference of market value of land and the value on which land is allotted to the Societies, has resulted in the nexus of builders and officials to reap gain by unholy alliance. If apartments are sold on the basis of market price the very purpose of land given on concessional rate to the Cooperative Societies stands defeated....

3. It would appear that pursuant to the said order of the Division Bench, CBI filed its report on 3.10.2005 and on a consideration of which, the Division Bench passed the following order:

We have also noticed from the second status report filed by the CBI that powerful builders' lobby of Delhi is behind the fraudulent revival of such societies having serious social and financial ramification and wider implication on a larger scale. It pointed towards a massive scam in the area of cooperative societies sector, these revived societies were mostly those which were registered with the office of Registrar Cooperative Societies way back in 1970-1980 and were wound up later by the Registrar Cooperative Societies due to either non appearance, failure to conduct elections of the managing committee, failure to conduct annual general body meetings, failure to conduct annual audit of accounts, non submission of membership list and other documents with the Registrar Cooperative Societies for verification. This scan would not have been possible but for the decision taken by the respondents for revival of the society which were hitherto defunct societies in 1970s or in 1980s....

4. On 16.11.2005 the CBI filed its final status report and on a consideration of the same, the Division Bench passed an order directing the CBI to act expeditiously in the matter and to see that all the culprits are brought to book in accordance with law. It would appear that even before the passing of the said orders/directions by the Division Bench, the CBI had information to the effect that during the period 1970-1980 or thereafter a seizable number of CGHS were registered several years ago and had become defunct for various reasons; like non-operation, absence of annual data of accounts, non-submission of the membership list and other record to the office of the RCS for verification in accordance with the provisions of the Delhi Co-operative Societies Act, 1972 (hereinafter referred to as 'The Act') and the Rules framed there under. However, after several years a large number of said defunct CGHS have been revived by the office of the RCS, Delhi in criminal conspiracy with certain private persons on the basis of false/forged documents and such fraudulently revived CGHS were later on recommended for allotment of land by the DDA at the pre-determined price. Further inquiries were conducted in that behalf by the S.P., CBI who found that a deep-rooted Page 893 conspiracy was hatched by certain persons with the officers / officials of the office of RCS, Delhi including the petitioner in order to revive such defunct CGHS on the basis of fake and forged documents/record by obtaining/preparing false record and pursuant to the said conspiracy the petitioner ordered the revival of a large number of such societies and recommended for allotment of land to those societies which constituted offences punishable under Section 120-B IPC read with Sections 417/419/420/467/468/471 IPC and Section 13(2) r/w Section 15 and 13(1)(d) of Prevention of Corruption Act, 1988. Accordingly, various FIRs were lodged against the petitioner and several other officers/officials of the RCS viz. Assistant Registrars, Inspectors etc. besides certain private persons who were suspected of the commission of the said offences.

5. The status report filed by the CBI would show that after the registration of the said FIRs, the CBI sought the presence of the petitioner for the purpose of investigation but he did not cooperate and went underground and so the CBI was constrained to obtain warrants of arrest against the petitioner on 21.12.2005. The petitioner filed a petition in this Court under Section 482 Cr.P.C. against the orders of issue of warrants against him passed by the Special Judge, Delhi, praying for quashing the non-bailable warrants, which petition was dismissed by this Court on 23.1.2006. Thereafter, the petitioner is stated to have surrendered before the Special Judge, CBI on 30.1.2006 and he has been remanded to judicial custody.

6. The investigation conducted so far has reflected in general a modus operandi in which the said conspiracy was hatched by the petitioner and others and later on realized. The modus operandi being that the petitioner while working as RCS, Delhi in conspiracy with other co-accused persons deliberately made the original records of the Society disappear from the office of RCS and without lodging any complaint with the police or initiating any inquiry about the missing of the said record, got re-constructed the files on the basis of records submitted in his office by his accomplices. No verification of the liquidation order etc. were made from other authorities i.e. DDA, Revenue Department of Govt. of NCT of Delhi, the State Co-operative Bank, wherefrom a verification could be sought. Certain fake documents were entertained and fake reports obtained from the officials of the RCS, Delhi and after making somewhat semblance of sham proceedings on the file, several societies were revived by the petitioner in purporting exercise of his powers under the provisions of Section 63(3) of the Act and thereafter made recommendation to the DDA for allotment of land to such revived societies. In this way the petitioner, being a public servant, has abused his official position in the matter of revival of various Cooperative Group Housing Societies and out of 96 cases registered so far by the CBI, name of the petitioner figures in as many as 66 cases and investigation into the said cases is in progress.

7. I have heard Mr.R.K.Anand, learned senior counsel representing the petitioner and Mr.Harish Gulati, learned counsel representing the respondent/CBI and have bestowed my thoughtful consideration to their respective submissions.

Page 894

8. Though the petition contains several grounds and pleas for quashing the above said FIRs, yet Mr.Anand, learned senior counsel at the hearing of the petition has confined his submissions only to a fewer grounds. In support of his plea for quashing the FIRs, the first and foremost plea put forward by Mr.Anand is that the petitioner is immune from any prosecution for all or any acts done by him in the capacity of RCS because the functions discharged by him are judicial and or quasi judicial in nature and are liable to challenge by way of appeal. The basis of this submission is that the incumbent of the office of RCS while discharging the functions under the Act is to be deemed a 'Judge' within the meaning of Section 19 of IPC and so he enjoys immunity and protection from any prosecution for any action, decision or order passed by him by virtue of the provisions of Section 95 of the Act as well as under the provisions of Judges (Protection) Act, 1985. In this connection Mr.Anand, learned senior counsel submitted that Section 63(1) of the Act empowers the Registrar Cooperative Societies to make an order directing any cooperative societies to be wound up after following a certain procedure and recording requisite satisfaction. According to him, sub-section(3) of Section 63 of the Act further empowers the RCS to cancel an order for winding up of a cooperative society at any time in any case where in his opinion the society should continue to exist. He submitted that assuming for the sake of argument that the act of the Registrar in cancelling the order of winding up and for revival of the defunct societies were passed by him on the basis of fake/forged record, he passed the same in exercise of the said power and such orders of cancellation of winding up of the CGHS and their consequent revival are appeallable within the meaning of Section 76 of the Act, and since no appeal was filed or the order of cancellation of the winding up of the societies challenged at any other forum, the order has attained finality and its legality and validity cannot be questioned in any other proceeding and cannot be subject matter of any inquiry or investigation, least by the police or the CBI.

9. Mr.Anand, then urged that in any case Section 95 of the Act is an absolute bar against the prosecution of the petitioner in respect of his alleged acts in ordering the revival of the defunct societies. Section 95 of the Act reads as under:

95. Indemnity.__ No suit, prosecution or other legal proceedings shall lie against the Registrar or any person subordinate to hi or acting on his authority in respect of anything in good faith done or purporting to have been done under this Act.

10. Mr.Anand, learned senior counsel contended that the orders passed by the petitioner in regard to the revival of certain CGHS were passed by him in good faith and the question of good faith or bad faith cannot be a subject matter of any inquiry or investigation because if any investigating agency is allowed to look into the said aspect, then the provision of Section 95 of the Act will be rendered nugatory and the immunity granted by this provision will become meaningless. As against this, Mr.Gulati, learned counsel appearing for the CBI has submitted that the allegations which led to the registration of the FIRs and the investigation so far conducted in some of the cases would show that the petitioner had acted in a mala fide manner and had granted undue favor to several persons and it can be Page 895 safely presumed that he did so in order to derive benefit for himself for showing such favors.

11. Mr.Anand further argued that the protection, as envisaged by Section 3 of the Judges (Protection) Act 1985, is available to the petitioner because the petitioner in the discharge of his functions under the Act will be deemed to be a 'Judge' within the meaning of Sections 2 of the Judges (Protection) Act 1985. Sections 2 & 3 of the Judges (Protection) Act, 1985 read as under:

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 definite judgment, or a judgment which, if not appealed against, would be definite, 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.

(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.

12. In support of his contention that the protection, as envisaged by Section 3 of the Judges (Protection) Act, 1985 is available to the petitioner, Mr.Anand has relied upon a decision of the Supreme Court in the case of Anowar Hussain v. Ajoy Kumar Mukherjee and Ors. . In that case the Court examined the question of availability of protection and immunity from legal proceedings under the provisions of Section 1 of the Judicial Officers' Protection Act, 1850. Mr.Anand heavily relied upon the observations made in para-8 of the said judgment, which is to the following effect:

The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their duties as such officers. The statute, it must be noticed, protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, Page 896 irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression 'jurisdiction' does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter.

13. Reliance has also been placed on another decision of the Supreme Court in the case of Rachapudi Subba Rao v. Advocate General, Andhra Pradesh . In the said case the Court referring to the above judgment of Anowar Hussain (supra) and the provisions of Section 1 of the Judicial Officers' Protection Act, 1850, laid down that the Section offers protection to two broad categories of acts done or ordered to be done by a judicial officer in his judicial capacity. In the first category fall those acts which are within the limits of his jurisdiction. The second category encompasses those acts which may not be within the jurisdiction of the judicial officer, but are, nevertheless, done or ordered to be done by him, believing in good faith that he had jurisdiction to do them or order them to be done. The Court held that in case of the acts of the first category committed in the discharge of his judicial duties, the protection afforded by the statute is absolute and no enquiry will be entertained as to whether the act done or ordered to be done was erroneous, or even illegal, or was done or ordered without believing in good faith. However, in case of acts of second category, the protection of the statute will be available if at the time of doing, ordering the act, the judicial officer acting judicially, in good faith believed himself to have jurisdiction to do or order the same. The expression 'jurisdiction' in this section has not been used in the limited sense of the term, as connoting the 'power' to do or order to do the particular act complained of, but is used in a wide sense as meaning 'generally the authority of the judicial officer to act in the matters'. Therefore, if the judicial officer had the general authority to enter upon the enquiry into the cause, action, petition or other proceeding in the course of which the impugned act was done or ordered by him in his judicial capacity, the act, even if erroneous, will still be within his 'jurisdiction', and the mere fact that it was erroneous will not put it beyond his 'jurisdiction'. Error in the exercise of jurisdiction is not to be confused with lack of jurisdiction in entertaining the cause or proceeding. It follows that if the judicial officer is found to have been acting in the discharge of his judicial duties, then, in order to exclude him from the protection of this statute, the complainant has to establish that (1) the judicial officer complained against was acting without any jurisdiction whatsoever, and (2) he was acting without good faith in believing himself to have jurisdiction.

14. As against this, Mr.Gulati, learned counsel has submitted that the petitioner cannot be said to be a 'Judge' either within the meaning of Section 19 IPC or Section 2 of the Judges (Protection) Act, 1985 because by no stretch Page 897 it can be said that the functions discharged by the RCS within the meaning of the Act of 1972 were discharged by him in the capacity of a Court or a Judge except that he has been given certain powers of the civil court for summoning and enforcing the attendance of witnesses, requiring the discovery and production of any document and admitting the proof of facts by affidavits and for issuing commissions for examination of witnesses by Section 94 of the Act.

15. This Court on a consideration of the matter and more particularly having regard to the provisions of the Delhi Co-operative Societies Act, 1972 and Judges (Protection) Act, 1985, is of the considered opinion that the petitioner while exercising and discharging functions of the Act and more particularly the powers under Section 63(3) of the Act, cannot be deemed to be a 'Judge' within the meaning of Section 2 of the Judges (Protection) Act, 1985 and, consequently, he cannot claim any protection against prosecution or other legal proceedings. So far as the immunity available to the Registrar and other officers against prosecution etc. under Section 95 of the Act is concerned, suffice it would be to observe that the use of the expression 'good faith' in the said section clearly brings out the mind of the Legislature that the protection granted to the Registrar and other officers for any acts done by them in the discharge or their official duties is not absolute and is circumscribed by the essential condition that the action had been taken and power had been exercised by such officers in good faith. Converse of good faith is 'bad faith' or mala fide and, therefore, if a question arises as to whether the action taken by the Registrar Cooperative Societies or any other officer was in bad faith, the immunity envisaged by Section 95 of the Act will not be available and the question can be gone into by any competent authority including any statutory investigating agency(s) like CBI. In the opinion of this Court, the petitioner cannot be allowed to take refuge under the said provisions and to scuttle the investigation into the cases having large remifications in the society.

16. Having regard to the entirety of the facts and circumstances and the material brought on record, this Court has no hesitation in holding that the present petition for quashing of the FIRs registered against the petitioner on the above purported grounds is wholly misconceived and is liable to be dismissed, more particularly so when the investigation is still in progress in a large number of cases. Ordered accordingly.

17. Petition stands disposed of.