Executive Officer Deciding Municipal Mutation Proceedings Covered As ‘Judge’ Under Judges (Protection) Act: Patna High Court
Safiya Malik
The Patna High Court Single Bench of Justice Sandeep Kumar set aside the State’s sanction for prosecution and quashed the FIR and all consequential criminal proceedings against a Patna Municipal Corporation Executive Officer over an order passed during mutation proceedings. The case arose from allegations that, while dealing with a dispute concerning municipal mutation and holding tax records of a residential property, the officer acted in collusion with private persons and issued a stay that allegedly aided an unlawful mutation. The Court found that an Executive Officer exercising authority to deliver a conclusive determination in such proceedings is treated as a “Judge” under the Judges (Protection) Act, 1985, attracting statutory protection for acts done while performing, or purporting to perform, official judicial functions.
A complaint was instituted by a power of attorney holder acting on behalf of the original owner, alleging that the property had been illegally mutated in favour of a third party by misrepresenting lineage and succession. It was asserted that false claims of parentage were used to secure mutation and issuance of holding tax receipts, despite contrary documentary evidence such as family certificates.
The petitioner, a public servant functioning as Executive Officer of the concerned municipal circle at the relevant time, was alleged to have acted in connivance with other individuals by relying on a revenue report and by passing an order staying mutation proceedings pending adjudication of a pending civil title suit relating to the same property. The complaint was forwarded for investigation, resulting in registration of an FIR for offences including cheating, forgery, use of forged documents, and criminal conspiracy.
Subsequently, sanction for prosecution was granted by the State Government. The petitioner challenged the sanction order, the FIR, and the consequent proceedings, contending that the impugned acts were performed in discharge of official and quasi-judicial duties, that the alleged mutation had occurred prior to his tenure, and that the sanction order was passed without application of mind and contrary to statutory protections available to judicial and quasi-judicial officers.
The Court examined the nature of the duties discharged by the petitioner and recorded that “the order dated 27.06.2013 has been passed by the petitioner in discharge of his official duty upon remand from the appellate authority.” It noted that the mutation proceedings concerned the same property which was already the subject matter of a pending civil title suit and observed that “the revenue court had no jurisdiction to decide the title.”
On the scope of criminal liability arising from quasi-judicial acts, the Court stated that “merely passing an order for stay, in discharge of his official duties, could not lead to initiation of criminal proceeding on the basis of mere imputations.” It further recorded that the mutation and issuance of holding tax receipts had taken place years earlier, observing that “the present petitioner was not posted in the aforesaid office at the relevant time when the mutation was carried.”
While analysing the applicability of statutory protection, the Court referred to the Judges (Protection) Act, 1985, and observed that "Now turning to the facts of the present case, from the afore-quoted discussions, it is patently clear that the petitioner would fall within the ambit of protections afforded by the Judges (Protection) Act, 1985. The protection is obviously not absolute and the State or appropriate authority could proceed against an erring officers in terms of section 3(2) of the aforesaid Act."
With respect to sanction, the Court found that “the impugned order of sanction dated 28.12.2020 is totally cryptic and non-speaking in nature.” It further observed that the sanction order was “totally silent as to the circumstances under which the protection afforded to the petitioner from vexatious prosecution are required to be stripped.” The Court recorded that “the substance of why a sanction is required to be passed for criminal proceedings was however entirely missed and skipped by the sanctioning authority.”
The Court concluded that “a bald statement that the order of stay passed by the petitioner being in favour of one of the parties… would not suffice to initiate a criminal prosecution.”
The Court directed that “the impugned F.I.R vide Kadamkuan P.S. Case No.238 of 2014 and all consequential proceedings arising therefrom including the impugned sanction order dated 28.12.2020 are hereby quashed qua the present petitioner.”
Advocates Representing the Parties
For the Petitioner: Mr. Rajesh Kumar Mishra, Advocate; Mr. Rohit Raj, Advocate
For the Respondents: Mr. Jharkhandi Upadhyay, Additional Public Prosecutor
Case Title: S. Kumar @ Shailesh Kumar v. State of Bihar & Another
Case Number: Criminal Miscellaneous No. 1897 of 2022
Bench: Justice Sandeep Kumar
