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Patna High Court

MR. S. KUMAR @ SHAILESH KUMARversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The petitioner is protected under the Judges (Protection) Act, 1985 and the sanction order is invalid, warranting quashing of the FIR and all related proceedings.

Summary

The petitioner, S. Kumar, a Deputy Secretary in the Bihar Health Department, was sanctioned for prosecution under sections 420, 467, 468, 471 and 120‑B IPC for allegedly colluding to stay a mutation proceeding in favour of Kumar Gyanendra. The petitioner argued that the stay order dated 27‑06‑2013 was a quasi‑judicial act exercised in his official capacity and that he was protected by the Judges (Protection) Act, 1985 and Section 197 CrPC. The State contended that the petitioner acted in collusion and therefore the sanction was valid. The Court examined the scope of the Judges (Protection) Act, the requirement of sanction under Section 197 CrPC, and the principle that a quasi‑judicial order can be appealed rather than criminally prosecuted. It held that the petitioner fell within the protection of the Judges (Protection) Act and that the sanction order was unsustainable for lack of application of mind. Consequently, the FIR, the sanction order and all consequent proceedings were quashed and the petition was allowed.

Issues considered

  • The validity of the sanction granted for prosecution of a public servant under Section 197 CrPC.
  • Whether the petitioner, as an Executive Officer exercising quasi‑judicial functions, is protected by the Judges (Protection) Act, 1985.
  • Whether the order of stay passed by the petitioner can be the basis for criminal prosecution.
  • Whether the sanctioning authority applied its mind in granting sanction.

Legislation cited

Subjects

  • quasi‑judicial authority
  • Judges (Protection) Act
  • Section 197 CrPC
  • sanction for prosecution
  • property mutation
  • stay order
  • public servant protection
  • criminal proceedings

Judgment

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL MISCELLANEOUS No.1897 of 2022
         Arising Out of PS. Case No.-238 Year-2014 Thana- KADAMKUAN District- Patna
     ======================================================
     MR. S. KUMAR @ SHAILESH KUMAR Son of Shri Moti Lal Resdient of
     Flat No. - G- 02, Friends Suman Vatika, Opposite S.B.I. Bank, Rajendra
     Nagar, Naya Chak, P.s.- Kadam Kuan, District - Patna. At Present Posted as
     Deputy Secretary, Department of Health, Government of Bihar, Patna.

                                                                      ... ... Petitioner
                                             Versus

1.   The State of Bihar
2.   Milan Kumar Sudhakar S/O Late Ramvilas Yadav , Resident of Village- Ali
     Nagar, P.S. - Bahera, District - Darbhanga. At Present Resident of - E/17,
     Road No. 12, Rajendra Nagar, P.S. - Kadam Kuan, District - Patna. Power of
     attorney Holder of Dr. Gyan Kaur Yadav W/O Late Desh Gaurav Yadav

                                             ... ... Opposite Parties
     ======================================================
     Appearance :
     For the Petitioner        :        Mr. Rajesh Kumar Mishra, Advocate
                                        Mr. Rohit Raj, Advocate
     For the State             :        Mr. Jharkhandi Upadhyay, APP
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
                         C.A.V. JUDGMENT
                                     Date : 21-01-2026

                          Despite valid service of notice, none has appeared

      on behalf of the opposite party no.2.

                          2.       The present application is filed invoking the

      inherent jurisdiction of this Court under section 482 of the

      Criminal Procedure Code (hereinafter ‘Cr.P.C.’) for quashing

      the order contained in memo No.S.P.-25/2019-95/J dated

      28.12.2020, passed by the Secretary, Department of Law,

      Government of Bihar whereby sanction for prosecution under

      section 420, 467, 468, 471, 120-B of the Indian Penal Code, has
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         been granted against the present petitioner in connection with

         Kadamkuan P.S. Case No. 238 of 2014 registered on

         24.05.2014.

                         3.      Subsequently, during the pendency of this

         petition, the petitioner has preferred to move an Interlocutory

         Application bearing I.A. No. 01 of 2024 seeking amendment in

         the prayer portion of this petition and assailed the F.I.R vide

         Kadamkuan P.S. Case No. 238 of 2014 and also the charge-sheet

         bearing No.533 of 2021 filed against the petitioner.

                         4.      The Complaint Case No.25889 of 2014 was

         filed on 04.04.2014 in the Court of learned C.J.M., Patna by the

         complainant namely, Milan Kumar Sudhakar in the capacity of

         power of attorney holder of his grandmother, Dr. Gyan Kaur

         Yadav, against two accused persons namely S. Kumar, the

         instant petitioner and one Sitaram Chaudhary.

                         5.      In the aforesaid complaint petition, the

         complainant states that power of attorney (hereinafter ‘POA’)

         was executed in the year 2011 and 2013 by the principal one Dr.

         Gyan Kaur Yadav in his favour to look after her property

         including her family home, i.e., a three storeyed building

         situated at B/17, Road No. 12, Rajendra Nagar, Patna since the

         principal along with her family was living in the United
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         Kingdom.

                         6.      Further, it is stated that the principal had

         acquired the aforesaid property at Rajendra Nagar, Patna from

         her husband, namely Dr. Desh Gaurav Yadav, who had passed

         away in the year 2008, through a registered deed in her favour,

         which was executed in presence of the witness namely one

         Kumar Indradev in the year 1985. Subsequently the aforesaid

         property was duly mutated in the name of the principal-Dr.

         Gyan Kaur Yadav. The husband of the principal much prior to

         his death in the year 1999, had executed a POA in favour of the

         aforesaid Kumar Indradev to look after the property situated at

         Rajendra Nagar. It is also stated that the principal Dr. Gyan

         Kaur Yadav and her husband had two sons namely Gurvindar

         and Surender and one daughter Manjit Kaur.

                         7.      It is thereafter alleged that on the strength of

         the POA when the complainant went to deposit the holding tax

         with the Patna Municipal Corporation, it has come to his

         knowledge that the said property at Rajendra Nagar was

         mutated in the name of one Kumar Gyanendra who was said to

         be the son of late Dr. Desh Gaurav Yadav, whereas he was

         actually the son of the aforesaid Kumar Indradeo, who was

         previously given POA by the husband of the principal, i.e., late
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         Dr. Desh Gaurav Yadav in his lifetime. Upon learning of this

         illegal mutation, the complainant filed an application under the

         Right to Information Act, 2005 before the Bankipur Circle

         Office and received a response that the name of Kumar

         Gyanendra was mutated vide Mutation No. 288/19A/2004-05 in

         Circle No. 29, Holding No. 687 in the year 2005 itself. It is

         alleged that the aforesaid illegal mutation in favour of Kumar

         Gyanendra was effected asserting falsely that he was the son of

         Dr. Desh Gaurav Yadav however, he was the son of the

         aforesaid Kumar Indradev. The complainant accordingly

         informed the principal Dr. Gyan Kaur Yadav and thereafter upon

         instructions of the aforesaid principal, the complainant filed a

         complaint case No. 1118 of 2012 against Kumar Indradeo and

         his son Kumar Gyanendra, wherein cognizance was taken under

         sections 420, 467, 468, 471, and 120B of the IPC against the

         aforesaid two persons and the complainant also filed an Appeal

         against the illegal mutation, before the Commissioner, Patna

         Municipal Corporation, which was numbered as Appeal No. 17

         of 2012. The Additional Commissioner, Patna Municipal

         Corporation had remanded the matter back to the Executive

         Officer for fresh consideration holding that the house owner was

         neither informed nor the succession was minutely examined.
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         Further, the Additional Commissioner also duly noted that the

         house owner (principal) Dr. Gyan Kaur Yadav was shown to

         have passed away on 07.11.2004 whereas a VISA was issued to

         her on 27.12.2007.

                         8.      The complainant thereafter alleges that the

         present petitioner-the Executive Officer in connivance with

         other accused persons got a report dated 16.02.2013 from the

         Revenue Officer wherein the aforesaid Kumar Gyanendra was

         falsely and incorrectly shown to be the son of the husband of the

         principal Dr. Desh Gaurav Yadav and they have deliberately

         ignored the documents adduced by the complainant such as,

         family certificate issued at Darbhanga proving that Kumar

         Gyanendra was not the son of the husband of the principal, i.e.,

         late Dr. Desh Gaurav Yadav. It is alleged in the complaint that

         subsequently, the petitioner in connivance with other accused

         persons passed a cryptic order wherein the further proceedings

         were stayed till the disposal of the Title Suit No. 507 of 2011 to

         unduly favour Kumar Gyanandra and his faher Kumar Indradeo.

         It is also alleged that the accused persons in collusion with

         Kumar Gyanandra and his father Kumar Indradeo also issued

         holding tax receipts bearing the name of Kumar Gyanandra

         wherein his parentage was shown incorrectly as Dr. Desh
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         Gaurav Yadav instead of his actual father Kumar Indradeo.

                         9.      The learned C.J.M, Patna vide order dated

         05.04.2014 had forwarded the aforesaid complaint case under

         section 156(3) Cr.P.C for investigation to the Kadamkuan Police

         Station and thereafter the present F.I.R in Kadamkuan P.S. Case

         238 of 2014 was registered on 24.05.2014 against two accused

         persons including the present petitioner.

                         10.     The learned counsel for the petitioner has

         submitted that the petitioner was serving as the Executive

         Officer at the Circle Office, Bankipur, Patna Municipal

         Corporation and under such authority and in discharge of his

         duties, he has passed the aforesaid order of stay. He submits that

         the petitioner being the Executive Officer had passed the stay

         order dated 27.06.2013 observing that with regard to the same

         property situated at Rajendra Nagar a Title Suit No.507 of 2011

         is also pending and the house, in question, being in possession

         of Kumar Gyanendra, the revenue court had no jurisdiction to

         decide the title and therefore, had kept the proceeding of the

         case pending till the final disposal of the aforesaid Title Suit.

                         11.     The learned counsel for the petitioner has

         submitted that the central allegation as against the petitioner is

         that he had passed the aforesaid order dated 27.06.2013 which is
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         cryptic in nature staying the proceedings before him till the

         disposal of the Title Suit in collusion with the opponents of the

         complainant for extraneous considerations, however he had

         emphasised that the order of stay was passed by the petitioner in

         exercise of his quasi judicial authority and the same can be

         assailed/appealed before the superior authority in accordance

         with law, which in fact was done and an appeal had been

         preferred before the Additional Commissioner, Patna Municipal

         Corporation. It is the contention of learned counsel for the

         petitioner 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 of collusion with

         the beneficiaries of the mutation which was in fact carried out

         much prior to the petitioner even joining the post as the

         Executive Officer in the Circle Officer, Bankipur.

                         12.     The learned counsel for the petitioner has

         vehemently argued that upon a bare perusal of the complaint

         petition, it would clearly manifest that the fraud was actually

         committed by Kumar Gyanendra and his father Kumar Indradeo

         with respect to the property of the principal situated at Rajendra

         Nagar and the present petitioner was in no way involved in any

         alleged fraud whatsoever. It is further emphasised that the
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         mutation of the property situated at Rajendra Nagar was effected

         in the year 2005 itself and the consequent holding tax receipts

         were issued in the same year in favour of Kumar Gyanendra by

         the then Executive Officer one R.P Gupta and pertinently the

         present petitioner was not posted in the aforesaid office at the

         relevant time when the mutation was carried.

                         13.     It is next submitted by the learned counsel

         for the petitioner that the impugned sanction order was passed

         without considering the legal opinion sought by the sanctioning

         authority. Since the impugned order for sanction was passed de

         hors the legal opinion wherein unequivocal stand had been

         taken that the actions of the petitioner cannot be characterized as

         malafide and that the petitioner never acted beyond his

         jurisdiction while passing the order of stay, it is therefore

         submitted by the learned counsel for the petitioner that no

         grounds for granting sanction against the petitioner exists in

         light of the section 197 Cr.P.C. which protects the public

         servants from vexatious prosecutions and consequently the

         impugned order of sanction for prosecution is bad in law and

         cannot be sustained.

                         14.     In support of his submissions the learned

         counsel has drawn strength from the decision of the Hon’ble
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         Supreme Court in the case of D. Devaraja vs. Owais Sabeer

         Hussain, (2020) 7 SCC 695, B. Saha vs. M.S. Kochar, (1979)

         4 SCC 177 and Gurmeet Kaur vs. Devender Gupta, 2024 SCC

         OnLine SC 3761.

                         15.     The next limb of submission of the learned

         counsel for the petitioner is that the impugned order of sanction

         has been passed in complete violation of the provisions

         contained in section 2 and 3 of the Judges (Protection) Act,

         1985. Adverting to the aforesaid provisions, he submits that the

         petitioner acting as a quasi judicial authority was shielded and

         no civil or criminal proceeding against the petitioner could have

         been initiated since the actions of the petitioner was clearly

         within the ambit of bona fide discharge of his official duties.

         The learned counsel for the petitioner has also drawn attention

         of this Court to section 77 of the Indian Penal Code to argue that

         the impugned sanction is in the teeth of the aforesaid section 77

         of the IPC.

                         16.     The learned Counsel for the petitioner has

         also pointed that the complainant on the strength of the POA in

         his favour had earlier instituted a separate complaint case

         bearing complaint case no. 1118 of 2012 against Kumar

         Gyanendra and his father Kumar Indradeo, wherein the Trial
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         Court had already taken cognizance. It is emphasised by the

         learned counsel that in the aforesaid earlier complaint case the

         present petitioner was not arrayed as an accused. It was only

         subsequently that the complainant has instituted this complaint

         case against the petitioner being the Executive Officer and the

         co-accused being the Revenue Officer in the year 2014.

                           17. The learned counsel for the petitioner has

         lastly submitted that the present criminal proceedings appear to

         have been initiated only to settle a personal score among the

         parties who are fighting over the property at Rajendra Nagar and

         no prima facie case is made out against the petitioner. Reliance

         is also placed on the judgment of the Hon’ble Supreme Court in

         the case of Awdesh Sriwastava vs. State of M.P. reported as

         2025 SCC OnLine SC 693.

                         18.     Learned APP for the State has opposed this

         application by submitting that the petitioner being the

         Government Servant in connivance with other accused persons

         has passed the order of stay.

                         19.     I have considered the submissions of learned

         counsel for the parties and perused the materials available on

         record particular the complaint petition.

                         20.     The petitioner while discharging his duty as
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         the Executive Officer in the Circle Office, Bankipur, Patna had

         passed the order dated 27.06.2013 staying the proceedings of

         Mutation case till the conclusion of the Title Suit No.507 of

         2011 since the same parties were ventilating their dispute in the

         aforesaid title suit for the very same property. There is no

         dispute that the aforesaid order dated 27.06.2013 has been

         passed by the petitioner in discharge of his official duty upon

         remand from the appellate authority.

                         21.     It would be profitable to refer to the

         decisions that have examined the question of applicability of the

         Judges (Protection) Act, 1985 to revenue authorities. In this

         regard, the High Court of Chhattisgarh in Rajkumar Tamboli

         vs. State of Chhattisgarh & Anr. reported as 2024 SCC OnLine

         Chh 3651 has delved deeply into the Judges (Protection) Act,

         1985 and its applicability to revenue officers and held as

         under :-

                    “13. The Judicial Officer's Protection Act, 1850 protects Judicial
                         Officers against being sued in any Civil Court for official
                         acts done or orders passed by them in good faith under
                         Section 1 of the Act of 1850, not only a Judge, Magistrate or
                         Justice of Peace, a Collector or other person acting
                         judicially are also protected against such civil action.
                     14. In the matter of S.P. Goel v. Collector of Stamps, Delhi
                        (1996) 1 SCC 573 the Supreme Court while considering the
                        provisions in Section 1 of the Judicial Officers (Protection)
                        Act, 1850 held as under:-
                                 “35. This section contains the common law rule of
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                                 immunity of Judges which is based on the principle
                                 that a person holding a judicial office should be in a
                                 position to discharge his functions with complete
                                 independence and, what is more important, without
                                 there being in his mind fear of consequences. The
                                 scope and purpose of this Act has already been
                                 explained by this Court in Anowar Hussain v. Ajay
                                 Kumar Mukherjee AIR 1965 SC 1651 in which the
                                 old decision in Teyen v. Ram Lal ILR (1890) 12 All
                                 115 was approved. The position of Judges, Judicial
                                 Officers and Magistrates has since been made more
                                 secure by the enactment of Judges (Protection) Act,
                                 1985.”
                      15. Under Section 1 of the Act of 1985, not only a Judge,
                         Magistrate or Justice of Peace, a Collector or other person
                         acting judicially are also protected against such civil action.
                         The Judges (Protection) Act, 1985 goes a step ahead and
                         provides additional protection to Judges against any civil or
                         criminal proceeding against them for any act, thing or word
                         committed, done or spoken by them when, or in the course
                         of, acting or purporting to act in discharge of their official
                         or judicial duty or function.
                      16. Section 2(a) of the Act of 1985 defines meaning of Judge as
                         under:
                                 xxxxx
                         From the above-stated definition of “Judge”, it is quite
                         vivid that every person who is required to law to give in
                         any proceeding a judgment is a Judge, notwithstanding he
                         is officially designated as a Judge.
                      17. In S.P. Goel (supra), Their Lordships have held that
                         provisions of the Act of 1850 will also be available to
                         Collector of Stamps as Collector has been specifically
                         mentioned along with Judges, Magistrates and Justices of
                         Peace in the Act of 1850.
                     18. Thus, it is well settled ever since that no action is
                        maintainable against a Judge for anything said or done by
                        him in exercise of a jurisdiction which vest to him. The
                        words he speaks are protected by an absolute privileges. It
                        was well stated by Lord Tcntcrden C.J. in Gamett v. Ferrand
                        (1827) 6 B & C 611:
                                 “This freedom from action and question at the suit
                                 of an individual is given by the law to the Judges,
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                                 not so much for their own sake as for the sake of the
                                 public, and for the advancement of justice, that
                                 being free from actions, they may be free in thought
                                 and independent in judgment, as all who are to
                                 administer justice ought to be.” (Excerpts from
                                 “The Due Process of Law’ by Lord Denning).”
                         As such, this statement of law would apply to the Judges of
                         all rank (High or Low) as provided under the Act of 1850
                         and the Act of 1985.
                         xxx
                      20. Section 3 of the Act of 1985 provides as under:-
                                 “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-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 the 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.”
                      21. Section 4 of the Act of 1985 provides as under:-
                                 “4. Saving.- 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.”
                         From perusal of Section 4 of the Act of 1985, it is quite
                         vivid that the provisions of the Code is 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.
                      22. Reverting to the facts of the case, it is quite vivid from
                         definition of Section 2 of the Act of 1985 that the
                         petitioner was empowered to give definite judgment in
                         revenue proceeding. The petitioner at the relevant point of
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                         time was empowered to pass an order of mutation of
                         subject land in the names of purchasers (co-accused)
                         under Sections 178 and 110 of the Code respectively and
                         he would fall within the meaning of person under Section
                         2(a) of the Act of 1985 who is empowered by law to give
                         definitive judgment in revenue proceeding.
                      23. The question for consideration would be, whether the
                         petitioners are entitled for protection under Section 3 of
                         the Act of 1985 ?
                      24. In Union of India v. Upendra Singh (1994) 3 SCC 357 the
                         Supreme Court held that even an officer, while discharging
                         judicial or quasi-judicial duties, is amenable to the
                         disciplinary proceedings into his conduct in discharge of the
                         duty.
                      25. The Supreme Court in the matter of Zunjarrao Bhikaji
                         Nagarkar v. Union of India (1999) 7 SCC 409 has held
                         that if the revenue officer in quasi-judicial adjudication
                         has wrongly exercised his jurisdiction that wrong can be
                         corrected in appeal. That cannot always form a basis for
                         initiating disciplinary proceedings against an officer while
                         he is acting as a quasi-judicial authority. It must be kept in
                         mind that being a quasi-judicial authority, he is always
                         subject to judicial supervision in appeal.
                      26. The Division Bench of this Court in the matter R.A.
                         Khandelwal v. State of Chhattisgarh (M.Cr.C. No. 1209 of
                         2004), decided on 1st August, 2005 quashed criminal
                         proceedings initiated against the petitioner therein who
                         while acting as competent authority under the Madhya
                         Pradesh (Ceiling on Agricultural Holdings) Act, 1960
                         passed certain order in that capacity was prosecuted for
                         offences under Sections 13(1)(d) and 13(2) of the
                         Prevention of Corruption Act, 1988 and Sections 120-B, 467
                         and 468 of the Penal Code, 1860 and held as under:-
                                 “19. Section 1 of the Judicial Officer's Protection
                                 Act, 1850, Section 3(2) of the Act, 1985, and
                                 Sections 45 and 48 of the Ceiling Act, 1960 do not
                                 provide for absolute bar from civil/criminal
                                 proceedings against a person who has performed
                                 judicial functions, except in case of good faith, done
                                 or intended to be done. The Central Govt. or the
                                 State Govt. or the Supreme Court of India or the
                                 High Court or any other Authority under any law
                                 which is competent can take action by way of civil,
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                                 criminal or departmental or otherwise against a
                                 person who has performed a function in exercise of
                                 his judicial/ quasi-judicial proceedings. The
                                 provisions of the Act, 1850 and the Act, 1985 and
                                 the provisions of the Ceiling Act are to prevent
                                 unnecessary harassments and frivolous prosecution
                                 of the officers for exercising his judicial/quasi
                                 judicial powers at the instance of a private party or
                                 a member of the public.”
                      27. Similarly, the Madhya Pradesh High Court in the matter
                         of Balram v. Aswani Kumar Yadav (2001) 3 MP LJ 363
                         has held that the petitioner therein - Naib-
                         Tahsildar/Revenue Officer who has been given status as
                         revenue Court while exercising the power under
                         Code/other enactment is entitled for protection under
                         section 3 of the Act of 1985 for an order which he passed
                         in quasi-judicial capacity.
                      28. In the matter of Om Prakash v. Surjan Singh 2004 (1)
                         MPJR 244 the High Court of Madhya Pradesh has held that
                         the revenue officer/Tahsildar therein is entitled for
                         protection for passing an order in capacity of revenue Court
                         by provisions of Section 2 and 3 of the Act of 1985. It was
                         also held that even if he has passed the order without
                         jurisdiction he cannot be prosecuted by way of filing
                         criminal complaint.
                      29. The High Court of Madhya Pradesh in the matter of State
                         of M.P. v. Rajeev Jain (2001) 4 MPHT 58 has clearly held
                         that prosecuting agency cannot be allowed to sit in
                         judgments or orders passed in judicial or quasi-judicial side
                         by a Judge. May be that he has mistaken or grossly
                         mistaken, yet he acted judicially and for that, no action
                         shall lie against him. The wrong, if any, could be corrected
                         in appeal. That cannot always form a basis for initiation of
                         criminal prosecution.
                      30. This Court in the matter of Sushil Kumar Jerom Tigga v.
                         Ganesh Ram Gyanbandhu Patel ILR 2018 Chh 703 has held
                         that Deputy Registrar of Co-operative Society exercising his
                         powers under Section 64 of the Chhattisgarh Co-operative
                         Societies Act, 1961 functions as ‘Court’ subordinate to High
                         Court and therefore, protection under Section 3 of the Act of
                         1985 is available to him.”
                                                                 (emphasis supplied)
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                         22.     Similarly, the High Court of Madhya Pradesh

         in Meenamehra v. Lokayukt Organization & Anr. reported as

         2011 SCC OnLine MP 2500 had held as under :-

                      “9. Learned Senior Counsel, while making reference to Section
                         2 of the JP Act, has submitted that definition of Judge, as
                         given in Section 2 thereof, is wide enough to include
                         revenue officers upon whom status of the Courts has been
                         conferred by Section 31 of the MPLRC. He has further
                         contended that each one of the petitioners, being
                         empowered by law to give in any legal proceeding a
                         definitive judgment, was entitled to additional protection
                         under Section 3(1) of the JP Act. Extensive arguments
                         addressed in support of the plea regarding the protection
                         may be summarized as under :-
                                 It is no doubt correct that with the coming into force
                                 of Entry 11-A of List III it is no more the exclusive
                                 power of the State Legislature to legislate under the
                                 said Entry but “administration of justice” and
                                 “constitution and organisation of all Courts” are
                                 the subjects on which the State Legislature can
                                 legislate (See. State of T.N. v. G.N. Venkataswamy,
                                 (1994) 5 SCC 314 : AIR 1995 SC 21).
                                 The word “Courts” is used to designate those
                                 tribunals, which are set up in an organised State for
                                 the administration of justice. By administration of
                                 justice is meant the exercise of judicial power of the
                                 State to maintain and uphold “rights” and to punish
                                 “wrongs”. Whenever there is an infringement of a
                                 right or an injury, the Courts are there to restore the
                                 vinculum juris, which is disturbed…….By “Courts”
                                 is meant Courts of civil Judicature and by
                                 “tribunals”, those bodies of men who are appointed
                                 to decide controversies arising under certain special
                                 laws (Harinagar Sugar Mills Ltd. v. Shyam Sundar
                                 Jhunjhunwala, AIR 1961 SC 1669).
                                 Definition of ‘Courts’ under the Evidence Act is not
                                 exhaustive, (Empress v. Ashootosh Chuckerbutty,
                                 ILR (1879-80) 4 Cal 483, as approved in State of
                                 Madhya Pradesh v. Anshuman Shukla, (2008) 7
                                 SCC 487. Further, in view of the definition of
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                                 ‘Judge’ in S. 19 of Penal Code and that of ‘offence’
                                 in S. 40 of the Penal Code, the petitioners as the
                                 officers deciding matter under the MPLRC are fully
                                 protected under S. 77 of the Penal Code as they had
                                 to perform judicial duties (State of Maharashtra v.
                                 Y.P. Sawant, 1977 Cri LJ 1477). Mutation
                                 proceedings are judicial proceedings within the
                                 meaning of CrPC (Lachhman Prasad Joshi v.
                                 Emperor, AIR 1930 Oudh 58). The petitioners viz.
                                 Meena Mehra and Vivek Tripathi who were
                                 exercising judicial powers under the Code while
                                 passing the orders in question in mutation
                                 proceedings, are entitled to protection under S. 3(1)
                                 (supra) (Balram v. Aswani Kumar Yadav, (2001) 2
                                 MPHT 330).
                                 Tahsildar passing any order under the MPLRC
                                 acts as ‘Revenue Court’ under Section 31 thereof
                                 and is, therefore, protected under Section 3 of JP
                                 Act being a Judge as defined under Section 2
                                 thereof. Accordingly, criminal complaint against
                                 him is an abuse of the process of law and liable to
                                 be dismissed (Om Prakash v. Surjan Singh, 2004
                                 RN 31). While passing orders under the MPLRC,
                                 Revenue Officer could be considered as a Judge as
                                 defined in Section 2 of the JP Act (S.S. Trivedi v.
                                 State of M.P., (2007) 5 MPHT 138).
                     10. However, the question of protection has to be examined
                        from two different angles. Provisions of Section 3(1) not
                        only protects Judges as defined in Section 2 from civil or
                        criminal proceedings for any act, thing or word
                        committed, done or spoken by him when, or in the course
                        of, acting in the discharge of his official or judicial duty or
                        function but also extends the protection to them for any
                        act, thing or word committed, done or spoken by him while
                        purporting to act in the discharge of his official or judicial
                        duty or function.
                                                                 (Emphasis supplied)
                         Obviously, the protection does not extend to acts purely
                         administrative / ministerial/extra judicial/alien to the
                         judicial duty. Any act, which is not done in the discharge
                         of his judicial duty, is therefore, not covered by the sub-
                         Section.”

                         23.     A coordinate Bench of this Court in string of
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         decisions tilted as Kumar Arun Prakash vs. State of Bihar &

         Ors. reported as 2024 SCC OnLine Pat 9103 and Rajesh Jha

         ‘Raja’ vs. State of Bihar & Anr. reported as 2024 SCC OnLine

         Pat 9104 wherein, in similar facts, the respective petitions were

         quashed and set aside on the ground that the protection under

         section 3 of the Judges (Protection) Act, 1985 would apply in

         cases of authorities deciding mutation cases. The Coordinate

         Bench in Rajesh Jha ‘Raja’ (supra) has held as under:-

                     “22. I also find that the complaint and the subsequent
                        impugned order against the Petitioner is not
                        maintainable/sustainable even in the light of the Judges
                        (Protection) Act, 1985 which provides additional protection
                        to Judges. The definition of Judge under Section 2 of the Act
                        of 1985 is very wide which includes quasi-judicial authority
                        or body like Circle Officer while passing order in Mutation
                        proceedings. Section 2 of the Judges (Protection) Act, 1985,
                        reads as follows:—
                                 xxxxx
                    23. Madhya Pradesh High Court in similar situations has held
                        in the following judgments that Tehsildar/Naib Tehsildar is
                        entitled to get the protection as provided in the Judges
                        (Protection) Act, 1985 while exercising powers under the
                        M.P. Land Revenue Code including the Mutation
                        proceedings.
                               (i) Mahesh Kumar Badole v. The State of M.P. Station
                                 House Officer, Misc. Criminal Case No. 41607 of
                                 2021, order dated 10-7-2023 (MP)
                               (ii) S.K. Jamra v. Rajaram in Cr. Appeal No.
                                 2017/2016 dated 15.03.2019.
                               (iii) Balram v. Ashwani Kumar Yadav, 2001 (2)
                                 MPHCT 330.
                               (iv) Om Prakash v. Surjan Singh, 2004 RN 31
                               (v) S.S. Trivedi v. State of M.P., 2007 SCC OnLine MP
                                 207
                       24. Section 3 of the Act of 1985 clearly provides that no
                        civil or criminal proceeding can be entertained or
                        continued against any judge in regard to any act allegedly
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                         committed while acting or purporting to Act in discharge
                         of his official or judicial duty or function. Hence,
                         complaint itself was not maintainable before the Ld.
                         Magistrate. The Magistrate should not have entertained or
                         continued the complaint proceeding, because the same is
                         barred under Section 3 of the Judges (Protection) Act,
                         1985. Section 3 of the Act reads as follows:-
                         xxxx”

                         24.     At this stage, it would be relevant to quote

         sections 2 and 3 of the Judges Protection Act, 1985 to examine

         the case of the petitioner, being the Executive Officer. Sections

         2 and 3 of the Judges Protection Act, 1985 reads 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 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 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
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                                 such action (whether by way of civil, criminal, or
                                 departmental proceedings or otherwise) against any
                                 person who is or was a Judge.”

                         25.     From a bare perusal of the aforesaid

         provision, it is clear that to fall within the category of a “Judge,”

         it is not necessary that a person be formally designated as such.

         Any person who is legally empowered, in the course of a legal

         proceeding, to render a definitive judgment would be regarded

         as a Judge. A careful analysis of the definition thus indicates that

         where a person is authorized to deliver a judgment that is final

         in itself, or attains finality upon confirmation by an appellate

         authority, such person would fall within the ambit of the term

         “Judge.” Consequently, any individual who renders such a

         determinative judgment in legal proceedings would, for the

         purposes of the definition of this Act, would be deemed to be a

         Judge.

                         26.     In the case of Amresh Shrivastava vs. State

         of Madhya Pradesh & Ors. reported as 2025 SCC OnLine SC

         693 the Hon’ble Supreme Court has considered the meaning of

         ‘wrongful order’ passed by a revenue authority which would

         warrant a disciplinary proceeding and has held as under:-

                            “14. The facts as have been narrated above are not in
                                dispute. Two aspects which need to be considered
                                are:
                                     (1) Whether the chargesheet issued to the
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                                         Appellant by the Respondent-State would fall
                                         within the scope of observations that have
                                         been carved out by this Court in K.K.
                                         Dhawan case (supra)?
                                     (2) Whether inordinate unexplained delay in
                                         issuance of the chargesheet (in this case 14
                                         years) would in itself be a ground for
                                         quashing the chargesheet issued to the
                                         appellant?
                             15. As regards the first question in K.K. Dhawan case
                                 (supra), this Court carved out the following
                                 situations where the government is not precluded
                                 from taking disciplinary actions for violation of the
                                 Code of Conduct:—
                                     “(i) Where the officer had acted in a manner as
                                         would reflect on his reputation for integrity
                                         or good faith or devotion to duty;
                                     (ii) If there is prima facie material to show
                                         recklessness or misconduct in the discharge
                                         of his duty;
                                     (iii) if he has acted in a manner which is
                                          unbecoming of a Government servant;
                                     (iv) if he had acted negligently or that he
                                         omitted the prescribed conditions which are
                                         essential for the exercise of the statutory
                                         powers;
                                     (v) if he had acted in order to unduly favour a
                                         party;
                                     (vi) if he had been actuated by corrupt motive
                                         however, small the bribe may be because
                                         Lord Coke said long ago “though the bribe
                                         may be small, yet the fault is great.”
                                 After carving out the above exceptions, this Court
                                 proceeded to further observe that mere technical
                                 violations or the fact that an order is wrong, if not
                                 falling under the above enumerated instances, does
                                 not warrant disciplinary actions. It was further
                                 reiterated that each case depends on its facts, and
                                 absolute rules cannot be postulated. The above
                                 instances as referred and reproduced hereinabove,
                                 are thus only a guide and not meant to be
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                                 mandatorily adhere to without exception.
                           16.   In the present case, we are of the considered view
                                 that the charges alleged against the Appellant in the
                                 chargesheet fall under the category of a wrongful
                                 order, which does not appear to have been
                                 influenced by extraneous factors or any form of
                                 gratification. It appears that the order has been
                                 passed in good faith, without any indication of
                                 dishonesty. Furthermore, the facts outlined in the
                                 Show Cause Notice do not suggest any such
                                 impropriety. The power exercised by the Appellant
                                 in his capacity as a Tehsildar, while passing the
                                 order of Land Settlement Order, cannot be
                                 considered of a nature that would warrant
                                 disciplinary proceedings against him. The decision
                                 relied upon by the Counsel for the Appellant as
                                 mentioned above, supports this view. Consequently,
                                 the first question is answered in favor of the
                                 Appellant.”

                         27.     In the present case, the order passed by the

         petitioner while discharging his official duties as the Executive

         Officer whereby the order of stay was passed with regard to the

         same property which was the subject matter of the Title Suit

         pending before the competent civil court cannot form the sole

         basis for initiating criminal prosecution against the petitioner.

                         28.     This Court has also perused the impugned

         order of sanction dated 28.12.2020 which is totally cryptic and

         non-speaking in nature and therefore, unsustainable.

                         29.     The Hon’ble Supreme Court in the recent

         case of Robert Lalchungnunga Chongthu v. State of Bihar,

         reported as 2025 SCC OnLine SC 2511, has considered various
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         precedents on sanction for prosecution and has held as under :-

                         “11.1. In Gurmeet Kaur v. Devender Gupta (2025) 5 SCC
                         481 hrough B.V. Nagarathna, J., this Court observed:
                                 “25. As already noted, the object and purpose of the
                                 said provision is to protect officers and officials of
                                 the State from unjustified criminal prosecution while
                                 they discharge their duties within the scope and
                                 ambit of their powers entrusted to them. A reading
                                 of Section 197CrPC would indicate that there is a
                                 bar for a court to take cognizance of such offences
                                 which are mentioned in the said provision except
                                 with the previous sanction of the appropriate
                                 Government when the allegations are made against,
                                 inter alia, a public servant.
                                 26. There is no doubt that in the instant case the
                                 appellant herein was a public servant but the
                                 question is, whether, while discharging her duty as a
                                 public servant on the relevant date, there was any
                                 excess in the discharge of the said duty which did
                                 not require the first respondent herein to take a
                                 prior sanction for prosecuting the appellant
                                 herein…”
                         11.2. The factors to be borne in mind when dealing with a
                         case involving sanction under this section has been, after
                         consideration of number of previous pronouncements
                         crystallised as follows in Devinder Singh v. State of Punjab
                         (2016) 12 SCC 87 :
                                 39. The principles emerging from the aforesaid
                                 decisions are summarised hereunder:
                                 39.1. Protection of sanction is an assurance to an
                                 honest and sincere officer to perform his duty
                                 honestly and to the best of his ability to further
                                 public duty. However, authority cannot be
                                 camouflaged to commit crime.
                                 39.2. Once act or omission has been found to have
                                 been committed by public servant in discharging his
                                 duty it must be given liberal and wide construction
                                 so far its official nature is concerned. Public servant
                                 is not entitled to indulge in criminal activities. To
                                 that extent Section 197 CrPC has to be construed
                                 narrowly and in a restricted manner.
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                                 39.3. Even in facts of a case when public servant
                                 has exceeded in his duty, if there is reasonable
                                 connection it will not deprive him of protection
                                 under Section 197 CrPC. There cannot be a
                                 universal rule to determine whether there is
                                 reasonable nexus between the act done and official
                                 duty nor is it possible to lay down such rule.
                                 39.4. In case the assault made is intrinsically
                                 connected with or related to performance of official
                                 duties, sanction would be necessary under Section
                                 197 CrPC, but such relation to duty should not be
                                 pretended or fanciful claim. The offence must be
                                 directly and reasonably connected with official duty
                                 to require sanction. It is no part of official duty to
                                 commit offence. In case offence was incomplete
                                 without proving, the official act, ordinarily the
                                 provisions of Section 197 CrPC would apply.
                                 39.5. In case sanction is necessary, it has to be
                                 decided by competent authority and sanction has to
                                 be issued on the basis of sound objective
                                 assessment. The court is not to be a sanctioning
                                 authority.
                                 39.6. Ordinarily, question of sanction should be
                                 dealt with at the stage of taking cognizance, but if
                                 the cognizance is taken erroneously and the same
                                 comes to the notice of court at a later stage, finding
                                 to that effect is permissible and such a plea can be
                                 taken first time before the appellate court. It may
                                 arise at inception itself. There is no requirement that
                                 the accused must wait till charges are framed.
                                 39.7. Question of sanction can be raised at the time
                                 of framing of charge and it can be decided prima
                                 facie on the basis of accusation. It is open to decide
                                 it afresh in light of evidence adduced after
                                 conclusion of trial or at other appropriate stage.
                                 39.8. Question of sanction may arise at any stage of
                                 proceedings. On a police or judicial inquiry or in
                                 course of evidence during trial. Whether sanction is
                                 necessary or not may have to be determined from
                                 stage to stage and material brought on record
                                 depending upon facts of each case. Question of
                                 sanction can be considered at any stage of the
                                 proceedings. Necessity for sanction may reveal itself
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                                 in the course of the progress of the case and it would
                                 be open to the accused to place material during the
                                 course of trial for showing what his duty was. The
                                 accused has the right to lead evidence in support of
                                 his case on merits.
                                 39.9. In some cases it may not be possible to decide
                                 the question effectively and finally without giving
                                 opportunity to the defence to adduce evidence.
                                 Question of good faith or bad faith may be decided
                                 on conclusion of trial.”
                         11.3. A Bench of three Learned Judges in P.K. Pradhan v.
                         State of Sikkim (2001) 6 SCC 704 held thus:
                                 “5. The legislative mandate engrafted in sub-section
                                 (1) of Section 197 debarring a court from taking
                                 cognizance of an offence except with the previous
                                 sanction of the Government concerned in a case
                                 where the acts complained of are alleged to have
                                 been committed by a public servant in discharge of
                                 his official duty or purporting to be in the discharge
                                 of his official duty and such public servant is not
                                 removable from office save by or with the sanction
                                 of the Government, touches the jurisdiction of the
                                 court itself. It is a prohibition imposed by the statute
                                 from taking cognizance. Different tests have been
                                 laid down in decided cases to ascertain the scope
                                 and meaning of the relevant words occurring in
                                 Section 197 of the Code:“any offence alleged to
                                 have been committed by him while acting or
                                 purporting to act in the discharge of his official
                                 duty”. The offence alleged to have been committed
                                 must have something to do, or must be related in
                                 some manner, with the discharge of official duty. No
                                 question of sanction can arise under Section 197,
                                 unless the act complained of is an offence; the only
                                 point for determination is whether it was committed
                                 in the discharge of official duty.”
                         12. The avowed object of sanctions being granted before
                         cognizance is to ensure that the threat of criminal
                         prosecution does not hang over the heads of the officials in
                         discharge of their public duty. At the same time, it is not
                         intended to protect officers who have transgressed the
                         boundaries of their duty for some act/benefit which
                         otherwise would not be termed acceptable. An aspect
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                         connected with this object, is that the authority granting
                         sanction does not do so mechanically. This is a layer of
                         protection envisioned by this Section. In other words, when
                         allegations are made, it is not for the authorities to grant
                         sanction simply on the basis of the allegations but it is also
                         that they should examine the materials placed by the
                         investigating agency and come to a prima facie satisfaction
                         thereon, about the officer having some or the other
                         involvement in the alleged offence/crime. In Mansukhlal
                         Vitthaldas Chauhan v. State of Gujarat, this Court held that
                         the order of granting or refusing sanction must show
                         application of mind. The relevant paragraphs thereof are
                         extracted hereunder:
                                 “17. Sanction lifts the bar for prosecution. The
                                 grant of sanction is not an idle formality or an
                                 acrimonious exercise but a solemn and sacrosanct
                                 act which affords protection to government servants
                                 against frivolous prosecutions. (See Mohd. Iqbal
                                 Ahmed v. State of A.P. [(1979) 4 SCC 172 : 1979
                                 SCC (Cri) 926 : AIR 1979 SC 677]) Sanction is a
                                 weapon to ensure discouragement of frivolous and
                                 vexatious prosecution and is a safeguard for the
                                 innocent but not a shield for the guilty.
                                 18. The validity of the sanction would, therefore,
                                 depend upon the material placed before the
                                 sanctioning authority and the fact that all the
                                 relevant facts, material and evidence have been
                                 considered     by   the    sanctioning  authority.
                                 Consideration implies application of mind. The
                                 order of sanction must ex facie disclose that the
                                 sanctioning authority had considered the evidence
                                 and other material placed before it…”
                                 19. Since the validity of “sanction” depends on the
                                 applicability of mind by the sanctioning authority to
                                 the facts of the case as also the material and
                                 evidence collected during investigation, it
                                 necessarily follows that the sanctioning authority
                                 has to apply its own independent mind for the
                                 generation of genuine satisfaction whether
                                 prosecution has to be sanctioned or not. The mind of
                                 the sanctioning authority should not be under
                                 pressure from any quarter nor should any external
                                 force be acting upon it to take a decision one way or
                                 the other. Since the discretion to grant or not to
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                                 grant sanction vests absolutely in the sanctioning
                                 authority, its discretion should be shown to have not
                                 been affected by any extraneous consideration. If it
                                 is shown that the sanctioning authority was unable
                                 to apply its independent mind for any reason
                                 whatsoever or was under an obligation or
                                 compulsion or constraint to grant the sanction, the
                                 order will be bad for the reason that the discretion
                                 of the authority “not to sanction” was taken away
                                 and it was compelled to act mechanically to
                                 sanction the prosecution.”
                         Not much more needs to be said. The sanction awarded
                         against the appellant which we have extracted in toto
                         (supra) can in our considered view, in no way be said to be
                         reflecting application of mind by the authorities. If
                         sanction is based on what can at best be described as
                         vague statements such as “on perusal of the documents
                         and evidences mentioned in Case Diary available”, this
                         protection would be obliterated. The remainder of the
                         sanction order touches upon the essence of Section 197
                         CrPC and the fact that the appellant is a public servant
                         who would be covered thereby. The substance of why a
                         sanction is required was however entirely missed by the
                         sanctioning authority. The same is bad in law and must
                         be, set aside. All consequential actions including the order
                         taking cognizance, therefore would be quashed.
                                                               (emphasis supplied)


                         30.     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.

                         31.     The order of stay passed by the petitioner
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         which forms the basis for initiating the criminal prosecution is

         appealable before the appellate authority and any error

         committed by the petitioner therein could have been rectified by

         the appellate authority. From the records, it appears that an

         appeal was preferred agianst the order passed by the petitioner.

         The present petitioner by his order had stayed the mutation

         proceedings which was before him on remand from the

         appellate authority since there was a dispute over the title of the

         subject property. If the parties to the mutation proceedings were

         aggrieved by the order of stay passed by the petitioner then they

         could have availed remedies available under the law to assail the

         aforesaid order of stay. A bald statement that the order of stay

         passed by the petitioner being in favour of one of the parties to

         the mutation proceedings would not suffice to initiate a criminal

         prosecution against the petitioner. The criminal prosecution

         launched solely for passing an order of stay by the petitioner

         while discharging his duties, in the mutation proceedings

         simpliciter would squarely amount to malafide prosecution.

                         32.     Further, in the present case, the sanction

         order is totally silent as to the circumstances under which the

         protection afforded to the petitioner from vexatious prosecution

         are required to be stripped. Moreover, the impugned sanction
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                      order also makes no mention of any material which would

                      warrant initiation of criminal proceeding against the petitioner

                      for staying the mutation case proceeding until the conclusion of

                      the Title Suit which existed for the very same subject property.

                      The substance of why a sanction is required to be passed for

                      criminal proceedings was however entirely missed and skipped

                      by the sanctioning authority, more so, when the petitioner was

                      protected under the ambit of Judges (Protection) Act, 1985.

                      Therefore the impugned order of sanction suffers from clear

                      non-application of mind and can not be sustained.

                                      33.     In view of the aforesaid discussions, the

                      impugned F.I.R vide Kadamkuan P.S. Case No.238 of 2024 and

                      all consequential proceedings arising therefrom including the

                      impugned sanction order dated 28.12.2020 are hereby quashed

                      qua the present petitioner.

                                      34.     Accordingly, the present quashing petition is

                      allowed.

                                                              (Sandeep Kumar, J)



pawan/-
AFR/NAFR                N.A.F.R.
CAV DATE                31.10.2025
Uploading Date          21.01.2026
Transmission Date       21.01.2026


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