Jharkhand High Court

Anil Kumar Singh vs The State Of Jharkhand on 29 August, 2023

                                         1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(Cr.) No. 18 of 2021

 Anil Kumar Singh                              ..........     Petitioner
                             Versus

1.The State of Jharkhand
2. Principal Secretary, Department of Revenue of Land Reform, Ranchi
3. Deputy Commissioner, Deoghar
4. Commissioner, South Chota Nagpur Division, Ranchi
5. S.D.O. office at Smaharanalya Block DC Office, Deputy Para, Ratu, Ranchi
                                             ......         Respondents
                             ---------

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                            ---------
For the Petitioner : Mr. Prashant Pallav, Advocate
                        Ms. Shivani Jaluka, Advocate
For the State        : Mrs. Vandana Singh, Sr. S.C.-III

CAV on:- 23.08.2023                              Pronnounced on :- 29/08/2023

Heard Mr. Prashant Pallav, learned counsel for the petitioner and Mrs.

Vandana Singh, learned counsel for the State.

2. This petition has been filed for quashing the F.I.R. bearing Sukhdev

Nagar (Pandra O.P.) P.S. Case No. 259 of 2017, registered under sections 420, 467,

468, 471 and 34 of the Indian Penal Code and under section 3 (i) (x) (xi) of Schedule

Caste and Schedule Tribes (Prevention of Atrocities) Act, pending in the Court of

learned Additional Judicial Commissioner, XII, Ranchi.

3. The F.I.R. has been lodged alleging therein that a deed of surrender

bearing No. 5439 dated 30.10.1945 executed by one Sonani, W/O Paltu Sahu and a

deed of settlement No.5679 dated 20.11.1945 was made in favour of Ganga Ram

Sahu S/o Jagdish Sahu. Allegation is that the surrender and settlement was made in a

gap of 21 days where as under C.N.T. Act, 1908, requires that there must be a gap of

at least one agricultural year. It is alleged against the petitioner that the Tribal Raiyat

as on date is in possession of land and is making payment of revenue rent but even

then vide Mutation Case No.-1235/16-17, mutation is done in favour of Sanjay Sahu.

Such act of C.O. is alleged to be in violation of provision of SC/ST Act.

It was further alleged that within Mouja Hehal, Khata No-1, Plot 797,

Area 1.38 acres is recognised as Bakast Majish and the Jamindar has not transferred

the said land to any raiyat in legal manner.

It was further alleged that land mafia including Govind Sahay and others,

Lal Sanjay Nath Sahadeo and others possesses the said land. Information is received

that in Register, Jamabandi for 46 decimal land is running for years together in the

name of Bal Govind Sahay and Dr. Madan Mohan Sahay which when inquired upon

was found to be doubtful. As there was no legal valid transfer, which would have

resulted in vesting of the land in the state after the abolition of Zamindari. The

allegation against the petitioner is that ignoring the Interest of the State, the

petitioner instead of inquiring the correctness of Zamindari, he created the double

Jamabandi and issued Rent receipt in favour of Lal Sanjay Nath Sahadeo.

It was further alleged that land situated within khata No.-133, Plot No.-

270, Mouja Bajara, measuring an area of 7.80 acres is recognised as G.M. Land. On

past occasion, the land mafias tried to take the possession of said land but they were

prevented from doing so. Allegation against the Petitioner is that he facilitated the

Land Mafia's to take possession of said land causing a huge loss to the State.

It was further alleged that the enclosure to the office order dated

20.05.2017 also contains enclosure wherein there is an additional allegation that the

Petitioner had also done mutation of land belonging to 15 Tribals and he has also held

in demarcation of 7.80 acres of land within Khata No-113, Plot No.270 which was

known as Jai Prakash Udayan.

The F.I.R. also contains the reply of the petitioner dated 19.05.2017

wherein the Petitioner has given his reply on the alleged allegation.

4. Mr. Prashant Pallav, learned counsel for the petitioner submitted that the

petitioner is Circle Officer and he was posted at Circle Office, Hehal. He submitted

that the petitioner was acting as quasi judicial authority and has passed order and

there is no illegality in the order and the said order was amenable to appellate

jurisdiction as only mutation was conducted to be in favour of one of the purchaser.

He further submitted that in view of letters dated 23.02.2016, 18.04.2018 and

10.04.2018 it was mandated that in case, if any F.I.R. is to be registered against an

office with an allegation pertaining to his official discharge of duties, the permission

must be taken from the administrative head of concerned department. He further

submitted that the petitioner was discharging official duty and in absence of such

permission F.I.R. has been registered which is against the policy of the Government

itself. He submitted that the said decision was taken by the Government to

bonafidely protect the officer of the state. He submitted that in absence of such act

unnecessarily F.I.R. has been registered against the petitioner. He further submitted

that the Mutation Case No. 1235/16-17 was allowed on the basis of detail inquiry in

terms of provision of the Bihar Tenants Holding and Maintenance of Record Act, 1973

after having report on the possession being in the hands of one Sanjay Sahu the said

order was passed. He further submitted that the office of the Circle Officer and the

Revenue Officer did not receive any notice for objection in the said mutation. He

further submitted that mutation does not create title but can only be use to ascertain

possession of the person. According to him the order of mutation is an appealable

and revisiable order. The claimant of the land in Mutation Case No. 1235 R 27/16-17

i.e. Podha Tirkey preferred a mutation appeal in the Court of Deputy Collector being

Mutation Appeal Case No. 428 R 15/2017-18 for cancellation of jamabandi which has

been opened in the name of Sanjay Sahu and by order dated 25.06.2018 the said

Mutation Case No. 428 R 15/2017-18 was dismissed. He further submitted that the

Deputy Collector revisited the said order passed on 25.06.2018 by stepping into the

shoes of revisional authority and reviewed his order on 27.07.2018 in Mutation Case

No. 428 R-15/2017-2018 and passed the order to cancel the existing mutation and to

open mutation in the name of Podha Tirkey. He submitted that the said order suffers

from lack of jurisdiction as Deputy Collector cannot review his own order in the same

case. He further submitted that both the orders are annexed with Annexure-3 and 4

to the writ petition. He further submitted that the said order passed in Mutation

Appeal Case No. 428 R-15/2017-2018 was challenged before the learned court of

collector and the collector vide order dated 05.03.2020 set aside the order passed by

the Deputy Collector on 27.07.2018 in Miscellaneous Appeal No. 11/2019-2020. He

further submitted that the order passed by the collector has not been challenged in

the revisional jurisdiction hence the order dated 25.06.2018 attained finality. In this

back drop it is clear that the action of the petitioner in opening the jamabandi in the

name of Sanjay Sahu upon records available to him was correct and justified. In this

backdrop, he submitted that the petitioner was discharging a quasi judicial function in

view of that he was a "judge" and was protected under Judges (Protection) Act,

1985. To buttress this argument, he relied in the case of "E.S. Sanjeeva Rao V.

C.B.I" (2012) SCC Online Bom 1908. He referred to para 9, 10, 11, 12, 15, 16,

17, 18, 19 and 59 of the said judgment which is quoted here-in-below:-

"9. Petitioner, who was the Regional Provident Fund Commissioner passed an order under Section 7-A of the EPF and MP Act. CBI came to the conclusion that the petitioner did not calculate EPF dues as per the procedure laid down under EPF and MP Act and had wrongly held that the dues were Rs. 6,72,455/- instead of Rs. 43,52,67,618/- after taking into consideration the salaries and wages paid to the employees for the years 2004 to 2009 and lodged an FIR on 14-7-2010 for the offences punishable under Section 120-B read with Section 420 of the Penal Code, 1860 and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (For short "PC Act"). Petitioner has filed this petition under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code for quashing the FIR.

10. This Court, by order dated 3-12-2010, granted stay to the further investigation which order was challenged by the CBI in the Apex Court. However, Special Leave petition was dismissed and direction was given to this Court to dispose of the Criminal Writ Petition.

11. Before taking into consideration rival submissions made by both the parties, it would be necessary to briefly consider the scope of power which can be exercised by this Court under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code for quashing the FIR.

12. The Apex Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 has very succinctly summarized the said power and observed that the said power can be exercised in three categories of cases viz.--

(i) Where it is manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.

(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained." The Apex Court, thereafter, in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 has expanded the said power and has summarized it in para 108 which reads as under:--

"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate

within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

15. On the other hand, the learned Additional Solicitor General Shri Khambata has urged that apart from what was mentioned in the FIR, there was other material which was available with the CBI on the basis of which it could be said that the said order was not passed bona fide and, therefore, protection under Section 3(1) of the Judges (Protection) Act, 1985 was not available to the petitioner and his case, therefore, would fall under Section 3(2). Secondly, it was urged that the contention of the petitioner, at the highest, could be treated as defence in the trial and, on that basis, the FIR could not be quashed. Thirdly, it was contended that in view of Section 19 of the Penal Code, 1860, proceedings under the PC Act could not be stayed and fourthly it was contended that the order passed by the petitioner was not a judicial order and, therefore, protection under Section 77 of the Penal Code, 1860 and under Section 3(1) of the Judges (Protection) Act, 1985 was not available.

16. This being the crux of the rival contentions, three questions which fall for consideration before this Court are:--

(i) Whether the Regional Provident Fund Commissioner while passing an order under Section 7-A is a Judge within the definition under Section 19 of the IPC and Section 2 of the Judges (Protection) Act, 1985?

(ii) Whether the averments made in the FIR even if they are taken at its face value, constitute an offence?

(iii) Whether the prosecution of the petitioner only on the basis of the order passed under Section 7-A is barred in view of Section 77 of the Penal Code, 1860 or Section 3(1) of the Judges (Protection) Act, 1985?

17. In order to consider the said three questions, it will be necessary firstly to take into consideration definition of the word "Judge" under Section 19 of the Penal Code, 1860 and meaning of the word "judicial order" under Section 3(1) of the Judges (Protection) Act, 1985 and under Section 77 of the Penal Code, 1860. Section 19 of the Penal Code, 1860 reads as under:--

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

(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.

(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.

The aforesaid definition clearly shows that in order to fall under the category of a "Judge", even every person though not officially designated but who is empowered by law to give in any legal proceeding a definitive judgment would still be a judge. The definition, therefore, if analyzed, clearly envisages that, in any legal proceeding, a person who is empowered to give a definitive judgment which is final or becomes final, if confirmed by the appellate authority, would fall under this category. Such a person who gives such a judgment in any legal proceedings would be denoted as a Judge. The word "Judge" is also defined under Section 2 of the Judges (Protection) Act, 1985. Section 2 reads as under:--

"2. 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 give such a judgment as is referred in CI. (a)."

18. Under the Judges (Protection) Act, 1985, "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 give such a judgment as is referred to in Cl.(a), From the perusal of the said definition under the Judges (Protection) Act, 1985, it is abundantly clear that the said definition is identical to the definition which is given in Section 19 of the Penal Code,

19. So far as Penal Code, 1860 is concerned, Section 6 of the Penal Code, 1860 lays down that the definitions in the Code are to be understood, subject to exceptions. Section 6 of the Code reads as under:--

"6. Definitions in the Code to be understood subject to exceptions.-- Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or illustration. Illustrations

(a) The sections, in this Code, which contain definitions of offences, do not express that a child under seven years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.

(b) A, a police-officer, without warrant, apprehends Z, who has committed murder. Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z, and therefore the case falls within the general exception which provides that "nothing is an offence which is done by a person who is bound by law to do it". A Judge is given protection under Section 77 of the Penal Code, 1860 which reads as under:--

"77. 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."

Under Section 77, therefore, if a judge exercising his power given to him by law does any act as a judge, such as delivering a judgment when acting judicially, will not be treated as an offence. Here, the word "good faith" is in respect of exercise of any power which he believes to be given to him by law.

Similar protection is given to a Judge under the Judges (Protection) Act, 1985. Initially, the Judicial Officers' Protection Act, 1850 gave protection to Judges while they were discharging duties as Judicial Officers in deciding civil suits. However, the Act was repealed and under the Judges (Protection) Act, 1985 the Judge is also granted protection from being prosecuted in a criminal case as per the provisions of Section 3(1). It would be relevant, therefore, to take into consideration the said additional protection which had been given by the Judges (Protection) Act, 1985. Sections 3(1) and (2) of the Judges (Protection) Act, 1985 read as under:--

"3(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."

Section 4 makes it clear that the provisions of this Act would be in addition to, and not in derogation of, the provisions of any other law, meaning thereby that the said protection is given in addition to protection given under Section 77 of the Penal Code, 1860. Section 4 of the Judges (Protection) Act, 1985 reads as under:-- "4. The Provision of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges."

59. Assuming for the sake of arguments, as submitted by the Learned Solicitor General Shri Khambatta, that petitioner does not fall within the definition of a "Judge" within the meaning of Section 19 of the Penal Code, 1860 and Section 3(1) of the Judges (Protection) Act, 1985 even then if the averments which are made in the FIR are accepted at its face value, the offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act and read with Section 120-B read with Section 420 of the Penal Code,

1860 is not made out because the entire complaint proceeds on the basis that the order passed by the petitioner is defective since the liability which is imposed upon the employer is shown to be Rs. 6,72,455/- though the liability calculated by CBI was to the extent of Rs. 43,52,618/From the averments made in the FIR, therefore, it can be seen that, in effect, CBI, practically is sitting in appeal over the said order and has come to the conclusion that the said liability should have been X + 1. This itself shows that the foundation of entire complaint is based on hypothetical calculation made by the CBI as if sitting in appeal over the order passed by the Regional Provident Fund Commissioner and, therefore, even if these averments are taken at their face value, they do not constitute the offence alleged."

5. Relying on the said judgment he submitted that the petitioner was

discharging quasi judicial function and in view of that the order passed is appealable

and revisable and in view of that F.I.R. is unwarranted and amounts to abuse of

process of law. On these grounds, he submits that the entire criminal proceeding may

be quashed.

6. Per contra, Mrs. Vandana Singh, learned counsel for the respondent-State

submitted that the petitioner has carried out mutation in the violation of the provision

of Chotanagpur Tenancy Act resulting in deprivation of the right of the tribal person.

She submitted that this petition is pre-mature as there is direct allegation against the

petitioner and entire criminal proceeding may not be quashed at this stage. She

further submitted that the petitioner has helped the land mafia to take possession of

the land resulting in financial loss to the exchequer. There is allegation against the

petitioner that he has done mutation of land belonging to the Schedule Tribe and

demarcated 7.80 acres of land within in khata no. 113, plot no. 270 and in view of

that F.I.R. was lodged against the accused persons including the petitioner. She

further submitted that there is allegation that the petitioner created forged

documents to extend undue favour to Lal Sanjay Nath Sahdeo by creating double

jamabandi. Thus, the petitioner facilitated the land mafia to take illegal possession to

the land. She further submitted that in that view of the matter the judgment relied by

the learned counsel for the petitioner is not applicable as the petitioner was not

discharging the duty of a judge and in view of that Judges (Protection) Act is not

rescuing the petitioner. She further submitted that so far the letters dated 23.02.2016,

18.04.2018 and 10.04.2018 are concerned that letters protect to a person who

acted bonafidely in course of discharging official duty wherein the present case the

petitioner has acted for his own benefit which was not official duty to extend undue

advantages to the land mafias. She further submitted that mutation proceedings are

not judicial proceedings and they are meant mainly for the purposes of passing an

order for payment of land revenue and it only enables the person in whose favour

mutation is ordered, to pay the land revenue. It neither creates nor extinguishes any

title over the property. She relied the judgement of the Hon'ble Supreme Court in

Civil Appeal No. 1330 of 2019 decided on 31.01.2019 where in para 7 and 8 it has

been held as under:-

"7. The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court.

8. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni (Smt.) vs. Inder Kaur, (1996) 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh (dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591)."

7. Relying on the said judgment, she submitted that the judgement relied by

the learned counsel for the petitioner is not helping the petitioner and the petitioner is

not protected under the Judges (Protection) Act, 1985. She submitted that the case is

under investigation and at this stage this Court may not interfere and this writ petition

is fit to be dismissed.

8. In view of above submissions of the learned counsel for the parties the

Court has gone through the materials on record including contents of F.I.R. as well as

orders on which heavy reliance was made by the learned counsel for the petitioner. In

the counter-affidavit the allegations are there of extending undue advantages to one

Lal Sanjay Nath Sahdeo and it has come that tribal land was mutated in favour of said

Lal Sanjay Nath Sahdeo. In the State of Jharkhand that is very rampant. The tribal

lands are being grabbed by land mafias. The Deputy Collector revised the order by

order dated 25.06.2018 which means that he was not having power of review and

based on that the learned court of Collector has passed the order in Miscellaneous

Appeal No. 11/2019-20 to the effect that he has not having power of review and the

revision was required to be filed however, review was done and based on that the

said order was passed. That order was not on merit. The letters of the government

that F.I.R. with regard to lodging of the F.I.R. speaks of that permission from the

concerned department for lodging the F.I.R. in the cases, where the order has been

passed pursuant to discharge of official duty. In the case in hand the alleged

allegation is not said in the discharge of official duty. Allegations are there to extend

undue advantage to land mafias. It is settled law that the High Court should be

extremely cautious and slow to interfere with the investigation and/or trial of criminal

cases and should not stall the investigation and/or prosecution except when it is

convinced beyond any manner of doubt that FIR does, not disclose commission of any

offence or that the allegations contained in FIR do not constitute any cognizable

offence. Reference may be made to the case of "Sanapareddy Maheedhar

Seshagiri v. State of A.P.", (2007) 13 SCC 165 wherein para 31 the Hon'ble

Supreme Court has held as under:-

"31. A careful reading of the abovenoted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does, not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation."

9. At the initial stage, the Court is not required to enter into the merits of

the case on the basis of contentions urged by the respective counsel that was

considered in the case of "Som Mittal v. Govt. of Karnataka", (2008) 3 SCC

753 wherein para 9 the Hon'ble Supreme Court has held as under:-

"9. At this stage we are not prepared to enter into the merits of the case on the basis of contentions urged by the respective counsel. Here are our reasons:

In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in the rarest of rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is

brought to the notice of the court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to court that the trial would likely to end in acquittal. In other words, the inherent power of the court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice."

10. With regard to not adhering the letters dated 23.02.2016, 18.04.2018 and

10.04.2018 that cannot be said to be vital considering that procedural law is not to be

a tyrant but a servant, not an obstruction but an aid to justice. The procedure

prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in

the administration of justice. Reference may be made to the case of "Rani Kusum v.

Kanchan Devi", (2005) 6 SCC 705.

11. Further mere technicalities cannot be a ground to quash the proceeding.

Reference may be made to the case of "Sadhuram Bansalv. Pulin Behari Sarkar",

(1984) 3 SCC 410 wherein para 29 and 30 the Hon'ble Supreme Court has

held as under

"29. Mr S.S. Ray, appearing for the appellant, submitted that the entire question was a legal issue and there was no warrant for the learned Judges of the High Court to have imported the doctrine of social justice. In our opinion, there appears to be some misapprehension about what actually social justice is. There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the court would lean in favour of the weaker section of the society. Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party. Living accommodation is a human problem for vast millions in our country. The owners, in this case, are getting legally Rs 1 lakh more.

30. We must remember that in administering justice-social or legal jurisprudence has shifted away from fine-spun technicalities and abstract rules to recognition of human beings as human beings and human needs as human needs and if these can be fulfilled without deprivation of existing legal rights of any party concerned, courts must lean towards that and if the Division Bench of the High Court, in the facts and circumstances of the case, has leaned towards that, it is improper for this Court in exercise of the discretion vested under Article 136 of the Constitution to interfere with that decision. We would do well to remember that justice social, economic and political - is preamble to our Constitution. Administration of justice can no longer be merely protector of legal rights but must whenever possible be dispenser of social justice."

12. The dividing line between an administrative power and a quasi-judicial

power is quite thin and is being gradually obliterated. For determining whether a

power is an administrative power or a quasi- judicial power one has to look to the

nature of the power conferred, the person or persons on whom it is conferred, the

framework of the law conferring that power, the consequences ensuing from the

exercise of that power and the manner in which that power is expected to be

exercised. Under our Constitution the rule of law pervades over the entire field of

administration. Every organ of the State under our Constitution is regulated and

controlled by the rule of law. In a welfare State like ours it is inevitable that the

jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of

rule of law would loose its vitality if the instrumentalities of the State are not charged

with the duty of discharging their function in a fair and just manner. The requirement

of acting judicially in essence is nothing but a requirement to act justly and fairly and

not arbitrarily or capriciously. The procedures which are considered inherent in the

exercise of a judicial power are merely those which facilitate if not ensure a just and

fair decision. In recent years the concept of quasi-judicial power has been undergoing

a radical change. What was considered as an administrative power some years back is

now being considered as a quasi- judicial power.

13. The Courts are required to be careful, circumspect and cautious in

quashing the First Information Reports even in the cases of public servants. Even in

some of the cases innocent public servants are being made accused. Reference may

be made to the case of State of Chhattisgarh v. Aman Kumar Singh, (2023) 6

SCC 559 wherein para 82 it has been held as under:-

"82. We quite appreciate that there could be cases of innocent public servants being entangled in investigations arising out of motivated complaints and the consequent mental agony, emotional pain and social stigma that they would have to encounter in the process, but this small price has to be paid if there is to be a society governed by the rule of law. While we do not intend to fetter the High Courts from intervening in appropriate cases, it is only just and proper to remind the courts to be careful, circumspect and cautious in quashing first information reports resting on mala fide of the nature alleged herein."

14. How power is required to be exercised under section 482 of Cr.P.C. and

under Article 226 of the Constitution of India time and again guidelines have been

framed. It is well settled that said power has to be exercised sparingly and cautiously

to prevent the abuse of process of any Court and to secure the ends of justice. The

inherent power should not be exercised to stifle a legitimate prosecution. The High

Court should refrain from giving a prima facie decision unless there are compelling

circumstances to do so. Taking the allegations and the complaint as they were,

without adding or subtracting anything, if no offence was made out, only then the

High Court would be justified in quashing the proceedings in the exercise of its power

under Section 482 of Cr.P.C and under Article 226 of the Constitution of India. An

investigation should not be shut out at the threshold if the allegations have some

substance.

15. The much emphasis has been made by the learned counsel for the

petitioner on the ground that the petitioner was discharging quasi judicial function and

he was acting as a judge under Judges (Protection) Act, 1985 and Section 19 of the

I.P.C. For the ready reference Section 2 of the Judges (Protection) Act and Section 19

of the I.P.C. are quoted here-in-below:-

"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 definitive judgment, or a judgment which, if not appeared 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).

19. "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, if 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. Illustrations

(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.

(c) A member of a panchayat which has power, under 21 Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge."

16. In view of above provision made under Judges (Protection) Act read

with section 19 of the I.P.C. the function exercised by the petitioner is not coming

even the aforesaid definition of "judge".

17. In a case where criminal complaint alleging collusion and fraud between

Special Officer of Board and allottees of developed land given in lieu of

compensation was considered by the Hon'ble Supreme Court in the case of

"Surendra Kumar Bhatia V. Kanhaiya Lal and Others" (2009) 12 SCC 184

wherein section 77 and 19 of the I.P.C. was considered and the power of exercising

under Land Acquisition Act, 1894 by the Collector by way of enquiry and award was

held to be in administrative capacity and not of discharging the function as a judge

has been held in para 22 and 23 of the said judgment which is quoted here-in-below:-

"22. The question whether the Collector/Land Acquisition Officer while making an enquiry and award under the Act, acts in a judicial capacity or not, has been considered in a series of judgments. The well-settled principles are:

(a) Any inquiry as to the market value of property and determination of the amount of compensation by the Collector is administrative and not judicial in nature even though the Collector may have the power to summon and enforce the attendance of witnesses and production of documents. In making an award or making a reference or serving a notice, the Collector neither acts in a judicial nor quasi-judicial capacity but purely in an administrative capacity, exercising statutory powers as an agent and representative of the Government/acquiring authority.

(b) The award by a Collector is merely an offer of the amount mentioned as compensation on behalf of the Government/acquiring authority to the person/s interested. It is neither an executable decree, nor binds the owners or persons interested in the acquired property.

(c) The Collector does not function as a judicial officer who is required to base his decision only on the material placed in the enquiry in the presence of parties, but functions as a valuer who ascertains the market value on material collected from all sources, personal inspection and his own knowledge and experience.

(See the decision of the Privy Council in Ezra v. Secy. of State for India in Council [(1904-

05) 32 IA 93] , the decision of the Patna High Court in Gokul Krishna Banerji v. Secy. of State [AIR 1932 Pat 134] and the decisions of this Court in Raja Harish Chandra Raj Singh v. Land Acquisition Officer [AIR 1961 SC 1500 : (1962) 1 SCR 676] , N. Boman Behram v. State of Mysore [(1974) 2 SCC 316] , Khorshed Shapoor Chenai v. Controller of Estate Duty [(1980) 2 SCC 1 : 1980 SCC (Tax) 156] , Sharda Devi v. State of Bihar [(2003) 3 SCC 128] and Kiran Tandon v. Allahabad Development Authority [(2004) 10 SCC 745] .)

23. Only Judges (as defined in Section 19 IPC) acting judicially are entitled to the protection under Section 77 IPC. The Collector is neither a Judge as defined under Section 19 nor does he act judicially, when discharging any of the functions under the Act. Therefore he is not entitled to the protection under Section 77 IPC. The decision of the High Court that the FIR is to be quashed as the subject-matter of the complaint related to the action taken by the Collector/Special Officer in his capacity as a "Judge" is opposed to law and therefore, liable to be set aside."

18. In view of above judgment of the Hon'ble Supreme Court, the Court

finds that the argument with regard to the applicability of Judges (Protection) Act

and with regard to function of the petitioner is not attracted and he was only entering

the name of the concerned person in the mutation order and he was not exercising

quasi judicial function. In view of that the judgment relied by the learned counsel for

the petitioner is not helping the petitioner.

19. In view of above facts, reasons and analysis the Court finds that the

arguments advanced on behalf of the parties is answered in view of above

discussions. No case of interference is made out. Prima facie case is there. The

investigation is still going on. At this stage, this Court is not inclined to rove into and

come to the conclusion that the case of quashing is not made out as only F.I.R. is

under challenge. Accordingly, this petition is dismissed. Interim order is vacated.