Patna High Court
MR. S. KUMAR @ SHAILESH KUMARversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
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
- Code of Criminal Procedure, 1973 — s. 197, 482
- Indian Penal Code — s. 120-B, 420, 467, 468, 471, 77
- Judges (Protection) Act, 1985 — s. 2, 3, 4
- Right to Information Act, 2005
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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