Madhya Pradesh High Court
Nityanand Pandey vs The State Of Madhya Pradesh on 20 July, 2022
Author: Vivek Rusia
- : 1 :-
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 20th OF JULY, 2022
CRIMINAL REVISION No. 2807 of 2021
Between:-
NITYANAND PANDEY S/O SHRI BASANT KUMAR PANDEY ,
AGED ABOUT 49 YEARS, OCCUPATION: SERVICE C-1002
SHIVANSH ELEGANCY BEHIND C.H.L. HOSPITAL (MADHYA
PRADESH)
.....PETITIONER
(SACHIN BHATNAGAR, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THR. SPECIAL POLICE ESTABLISHMENT LOKAYUKT UNIT
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI VAIBHAV JAIN, LEARNED COUNSEL FOR THE
RESPONDENT.)
This revision coming on for admission on this day,
JUSTICE VIVEK RUSIA passed the following:
ORDER
The petitioner has filed this revision petition against order
dated 27.08.2021 whereby the learned trial court has framed the
charges against the appellant under section 13(1)(d) r/w 13(2) of
the P.C. Act and under section 120-B of the IPC from the period
30.09.2005 to 02.05.2006 the petitioner was posted as Tehsildar,
Ujjain and during this tenure he has passed certain mutation
orders causing loss to the state government accordingly,
- : 2 :-
complaint was made to the Special Police Establishment,
Lokayukta and the matter was taken into investigation and FIR
was registered at crime No.366/2014. The petitioner filed a
petition under section 482 of the Cr.P.C. before this court for
seeking quashment interalia on the ground that being a Tehsildar
he has acted as a judge therefore, he is entitled for protection
under section 3(1) of the Judges Protection Act,1985. Vide order
dated 07.01.2015 this court has dismissed the revision holding
that there is no bar in investigating the matter and dismissed the
petition. Thereafter, the petitioner has approached Apex Court by
way of SLP Criminal No.4556/2015 and vide order dated
02.11.2015 the Apex Court has declined to interfere with the
order and dismissed the SLP.
Thereafter, the state government has granted the sanction
for prosecution which the petitioner challenged by way of writ
petition No.7121/2016 by claiming the protection under section
3(1) of the Judges Protection Act,1985. Vide order dated
02.12.2016 this court has dismissed the petition by specific
finding that the petitioner is not entitled to claim protection under
section 3(1) of the Judges Protection Act,1985. Thereafter, the
petitioner appeared in the trial and filed an application under
section 227 of Cr.P.C. seeking discharge on the same ground that
he is entitled for Judges Protection Act. Vide detailed order dated
27.08.2021 learned court has not only dismissed the application
filed by the petitioner but also framed the charges under section
13(1)(d) r/w 13(2) of the P.C. Act and under section 120-B of the
IPC hence, present revision has been filed before this court.
Shri Vaibhav Jain, learned counsel for the
respondent/Lokayukta has produced the photocopy of order
passed in Writ petition No.7121/2016 (Nityanand Pandey Vs.
- : 3 :-
State of M.P.) decided on 02.12.2016 (2016 SCC MP Online MP
7940). We are surprised to see that the petitioner and the counsel
both are same but they did not disclose this fact in this criminal
revision. The aforesaid writ petition was filed for quashment of
the prosecution mainly on the ground that he is entitled for
protection under the Judges (Protection) Act, 1985. Paragraph 16
to 20 of the above mentioned order is reproduced below:-
"16. Section 3 of the Judges (Protection) Act,
1985 reads as under:-
"3.Addition Protection to Judges- 1.
Notwithstanding anything contained in any other law for
the time being in force and subject to the provisions of
subsection (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. 1. 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.
17. Simple reading of this Section leaves no doubt that
there is no embargo or rider on the powers of Central
Government or State Governments to take any action by
way of criminal proceedings against any person who is
or was a Judge. 18. Getting direct evidence regarding
intention is not so easy but the same can be inferred from
the conduct of the petitioner. The answer can be traced
in a decision of the Hon'ble Apex Court in R.R. Parekh
vs. High Court of Gujarat and Another, reported in AIR
2016 S.C. 3356. The Hon'ble Court has held in Para
no.15 of the judgment that :-
"T
he issue of whether a judicial officer has been
actuated by an oblique motive or corrupt practice has to
be determined upon a careful appraisal of the material
on the record. Direct evidence of corruption may not
always be forthcoming in every case involving a
misconduct of this nature. A wanton breach of the
governing principles of law or procedure may well be
indicative in a given case of a motivated, if not reckless
disregard of legal principle. In the absence of a cogent
- : 4 :-
explanation to the contrary, it is for the disciplinary
authority to determine whether a pattern has emerged on
the basis of which an inference that the judicial officer
was actuated by extraneous considerations can be
drawn. Cases involving misdemeanours of a judicial
officer have to be dealt with sensitivity and care. A
robust common sense must guide the disciplinary
authority. At one end of the spectrum are those cases
where direct evidence of a misdemeanour is available.
Evidence in regard to the existence of an incriminating
trail must be carefully scrutinized to determine whether
an act of misconduct is established on the basis of
legally acceptable evidence. Yet in other cases, direct
evidence of a decision being actuated by a corrupt
motive may not be available. The issue which arises in
such cases is whether there are circumstances from
which an inference that extraneous considerations have
actuated a judicial officer can legitimately be drawn.
Such an inference cannot obviously be drawn merely
from a hypothesis that a decision is erroneous. A wrong
decision can yet be a bona fide Error of judgment.
Inadvertence is consistent with an honest error of
judgment. A charge of misconduct against a judicial
officer must be distinguished from a purely erroneous
decision whether on law or on fact. The legality of a
judicial determination is subject to such remedies as are
provided in law for testing the correctness of the
determination. It is not the correctness of the verdict but
the conduct of the officer which is in question. The
disciplinary authority has to determine whether there
has emerged from the record one or more circumstances
that indicate that the decision which forms the basis of
the charge of misconduct was not an honest exercise of
judicial power. The circumstances let into evidence to
establish misconduct have to be sifted and evaluated
with caution. The threat of disciplinary proceedings must
not demotivate the honest and independent officer. Yet on
the other hand, there is a vital element of accountability
to society involved in dealing with cases of misconduct.
There is on the one hand a genuine public interest in
protecting fearless and honest officers of the district
judiciary from motivated criticism and attack. Equally
there is a genuine public interest in holding a person
who is guilty of wrong doing responsible for his or his
actions. Neither aspect of public interest can be ignored.
Both are vital to the preservation of the integrity of the
administration of justice'
(Emphasis Supplied)
19. In the present case, repeated orders have been
passed by the petitioner in the same manner and in all
18 cases were found in which he has mutated the name
of the parties in the same manner which caused loss to
- : 5 :-
the State exchequer. Therefore, in our considered
opinion, he cannot claim protection under the Judges
(Protection) Act. It is already decided in the order dated
07.01.2015, passed in MCRC No.7970/2014 that prima
facie case is made out against the applicants and from
the orders it is reflected that he constituted a conspiracy
to cause wrongful loss to the State exchequer.
20. As far as mutation order dated 11.07.2011 is
concerned, that is a matter of fact and it can be decided
by the trial Court on merit."
This court has categorically held that looking to the conduct
of the petitioner he is not entitled for the protection under the Act
of 1985. The petitioner has not approached this court with clean
hands.
The aforesaid fact of filing and dismiss of the writ petition
has been suppressed in this revision, therefore, this criminal
revision is not maintainable hence is hereby dismissed with the
cost of Rs.10,000/- payable in the M.P. State Legal Services
Authority.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Ajit/-
AJIT
Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001, st=Madhya Pradesh,
KAMALASAN
2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241e
ffad892107d95ef0a1afc55b4,
pseudonym=CFDFD9C36711CA738F527A5D61A1EE901
C09EF29,
serialNumber=7F0BEE2D78BD57DA058F3247441C87E7
AN E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT
KAMALASANAN
Date: 2022.07.21 17:03:46 +05'30'
