HIGH COURT OF MADHYA PRADESH : JABALPUR ---------------------------------------------------------------------------------------------------------------------------------------------------- PRESENT : HON. SHRI JUSTICE R.C. MISHRA HON. SMT. JUSTICE VIMLA JAIN ---------------------------------------------------------------------------------------------------------------------------------------------------- Writ Petition No.5959/2008 Smt. Meena Mehra, aged about 45 years, Tahsildar Kundam, D/o Shri Kamal Singh Thakur, R/o 131-D, Napier Town, Distt. Jabalpur (M.P.) …Petitioner vs. (1) The Lokayukt Organization through its Registrar, Bhopal. (2) The Superintendent of Police, Special Police Establishment, Lokayukt Organization, Jabalpur Zone, Distt. Jabalpur (M.P.) …Respondents ---------------------------------------------------------------------------------------------------------------------------------------- Shri Adarsh Muni Trivedi, Senior Counsel with Shri Ashish Trivedi, Adv. for the petitioner. Shri Aditya Adhikari, Special Public Prosecutor, for the respondents-SPE (Lokayukt). ---------------------------------------------------------------------------------------------------------------------------------------- & WRIT RIT P PETITION ETITION N NO.2571/2011 .2571/2011 Vivek Tripathi, son of Shri Ayodhya Tripathi, aged about 37 years, Resident of 516, Garha, Distt. Jabalpur …Petitioner vs. (1) Lokayukt Organization through its Registrar, Bhopal. (2) Superintendent of Police, Special Police Establishment, Lokayukt Organization, Jabalpur Zone, Distt. Jabalpur (M.P.) …Respondents ---------------------------------------------------------------------------------------------------------------------------------------- Shri Adarsh Muni Trivedi, Senior Counsel with Shri Ashish Trivedi, Advocate for the petitioner. Shri Aditya Adhikari, Special Public Prosecutor, for the respondents-SPE Lokayukt. ---------------------------------------------------------------------------------------------------------------------------------------------------- W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 & MISC ISC. C . CRIMINAL RIMINAL C CASE ASE NO.4261/2010 .4261/2010 Alok Kumar Shrivastava, son of Late Shri B.L. Shrivastava, aged about 52 years, Working as SDM, Sihora, Resident of S.M.S.2, Civil Lines, Sihora, Distt. Jabalpur …Petitioner vs. (1) State of Madhya Pradesh, Through Secretary, General Administrative Department, Vallabh Bhawan, Bhopal (2) Department of Lokayukt, through Secretary, State of M.P., Lokayukt Office, Bhopal (3) Superintendent of Police (Lokayukt), Special Police Establishment, Lokayukt Organization, Civic Centre Distt. Jabalpur …Respondents ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Anil Khare, Advocate for the petitioner. Shri Umesh Pandey, Govt. Adv. for respondent no.1-State. Shri Aditya Adhikari, Spl. P.P., for respondent nos.2 and 3. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Date of Hearing : 15.07.2011. Date of Order : 23.09.2011. O R D E R Per R.C. Mishra, J. These petitions are interlinked as they relate to the same case registered on 31.01.2008 as Crime No.08/08 at Special Police Establishment (Lokayukt), Bhopal for the offences punishable under Sections 120-B & 420 of the IPC and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act') against the petitioners and one Kishorilal Vishwakarma, the then Patwari of Halka No.25/31 at Jabalpur. 2. W.P. Nos.5959/08 and 2571/2011 are the petitions, under Articles 226 and 227 of the Constitution of India, for issuance of a :: 2 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 writ in the nature of certiorari or mandamus or any other writ or direction for quashing of the FIR leading to registration of the case as against Smt. Meena Mehra and Vivek Tripathi, who, at the relevant point of time, were posted respectively as Tahsildar (Nazul) and Naib Tahsildar (Nazul) at Jabalpur whereas MCrC No.4261/2010 is the petition, under Section 482 of the Code of Criminal Procedure (for brevity ‘the CrPC’), moved by Alok Kumar Shrivastava, the then Nazul Officer at Jabalpur, for quashing of the FIR and the corresponding investigation as against him. 3. For the sake of convenience, the petitioners shall be referred to by their respective names. 4. Background facts may be summarized as under - (i)One parcel of land, admeasuring 0.154 hectare located in village Mahanadi bearing P.C. No.25, settlement No.663 and khasra no.30, was purchased by Smt. Dayabai as early as on 20.03.1943. In the revenue records, the land continues to be recorded in the name of Dayabai @ Phoolmati, widow of Diwan Bahadur P.N. Lakshmanan only. (ii)On 14.3.2002, Shri Umesh Tripathi, Advocate submitted an application, under Section 113 of the M.P. Land Revenue Code (for short ‘the MPLRC’) on behalf of Smt. Indira Pastala, wife of Augustin Pastala, resident of 9-A, Easter Plot, Bunder Kolava, Mumbai, for correction of entry in the Khasra relating to the aforesaid land. It was asserted therein that in the year 1989, the entire land was mutated in her name only as the sole successor of Smt. Dayabai despite the fact that along with the mutation application, she had also filed copy of the :: 3 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 family partition deed evidencing that half of the land had fallen in the share of her husband Augustin. (iii)On 14.03.2002, petitioner Smt. Meena Mehra as Tahsildar (Nazul), upon the aforesaid application, directed registration of the case; publication of proclamation and also called for the report of the Patwari concerned. Thereafter, on 22.04.2002, observing that the land fell within the local jurisdiction of petitioner Vivek Tripathi, the Naib Tahsildar (Nazul), Smt. Meena Mehra transferred the case to him. (iv)On 04.04.2002, Patwari Kishorilal Vishwakarma furnished a false report indicating that the land had already been mutated in the name of Smt. Indira Pastala. (v)On 28.04.2002, petitioner Vivek Tripathi raised question of jurisdiction in the light of provisions of Section 178 of the MPLRC (whereunder power to make partition has been conferred on Tahsildar); posed query as to the date on which the land was mutated in favour of Smt. Indira Pastala and also directed her counsel to produce copy of the corresponding order. (vi)Pursuant to the order-dated 28.04.2002, Shri Umesh Tripathi, Advocate, filed another application, under Section 178 of the MPLRC, for getting the name of Augustin Pastala recorded as co-sharer in the land. Thereupon, while accepting the partition under Section 178-A of the MPLRC as genuine transaction, petitioner Vivek Tripathi, by way of order-dated 21.05.2002, granted the relief as prayed for by directing :: 4 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 recording of names of Indira Pastala and Augustin Pastala as Bhumiswamis of the land. (vii)On 27.06.2002, on being informed about the fact that in the original khasra, name of Smt. Indira Pastala was not recorded and Rin pustika submitted on her behalf was also a forged one, petitioner Vivek Tripathi sought permission, under Section 51 of the MPLRC, to review the order. (viii)On 10.07.2002, petitioner Alok Shrivastava, the then Nazul Officer, accorded necessary sanction to review the order-dated 21.05.2002. (ix)For the reasons recorded in the order-dated 15.07.2002, petitioner Vivek Tripathi reversed the order-dated 21.05.2002 and directed deletion of entry, if any, made in the record in compliance therewith. (x)In the light of abovementioned facts, - On 27.12.2003, Lalsingh Baghel, a patwari, made a complaint jointly addressed to the Chief Minister, Lokayukt, Inspector-General of Police and Commissioner against petitioner Vivek Tripathi alleging that while working as Naib Tahsildar (Nazul) at Jabalpur, he had not only mutated surplus nazul land worth crores of rupees in favour of unauthorized persons but had also caused loss to the tune of crores of rupees to the State Exchequer. The instances cited by Lalsingh Baghel included the proceedings conducted by Vivek Tripathi in respect of the land in question. :: 5 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 On 02.01.2004, John Bosco Richardson, as State Vice-President of Samajwadi Party, made almost similar complaint to aforesaid authorities and also to the Chief Secretary to Govt. of M.P. and Collector, Jabalpur against Vivek Tripathi. (xi)It was the complaint made by John Bosco Richardson that was enquired into by Rajyavardhan Maheshwari, Inspector SPE, Jabalpur as P.E. No.18/2006. In his opinion, all the three petitioners here and Kishorilal Vishwakarma who, at the relevant point of time, was posted as Patwari in Halka No.25/31, were guilty of procedural lapses and dereliction of duty, but none of them, while holding office as a public servant, had abused his official position to obtain for himself/herself or for any other person any wrongful gain. Accordingly, he proposed recommendation for initiation of departmental enquiry against all the four revenue officials. (xii)Not being satisfied with the outcome of the enquiry, the Deputy Inspector General of Police, SPE (Lokayukt), Bhopal remitted the matter for further enquiry in accordance with guidelines contained in the scrutiny note. (xiii)In pursuance of the direction, another Inspector Deo Vrat Mishra posted in the Special Police Establishment, Lokayukt, Jabalpur, conducted further enquiry. He concluded that the case deserved to be investigated into against (a) petitioner Vivek Tripathi only for the offences punishable under Section 13(1)(d) read with 13(2) of the PC Act and Section 420 of the IPC (b) no charge was made out against petitioner Alok Kumar Shrivastava and (c) departmental proceedings ought to :: 6 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 be initiated against petitioner Meena Mehra and another Tahsildar M.K. Tiwari and Kishorilal Vishwakarma. (xiv)However, on 30.01.2008, taking into consideration the findings of District Vigilance Committee, Inspector Deo Vrat Mishra registered a case under Section 13(1)(d) read with 13(2) of the PC Act and Sections 120B and 420 IPC against all the three petitioners and Kishorilal Vishwakarma by scribing an FIR at Jabalpur office of the SPE. It was forwarded to Head Office of SPE at Bhopal where a case was registered as Crime No.08/08 on the basis thereof. 5. At the outset, it may be observed that Shri A.M. Trivedi, learned Senior Counsel appearing on behalf of petitioners Smt. Meena Mehra and Vivek Tripathi has raised a common ground based on provisions of Section 3 of the Judges (Protection) Act, 1985 (for short ‘JP Act’) for quashing of the FIR and the corresponding proceedings. According to him, each one of them, being a Revenue Officer, holds the status of a Judge as defined in Section 2 of the JP Act by virtue of Section 31 of the MPLRC. Other specific grounds raised on behalf of these petitioners questioning the legality and propriety of and continuance of investigation may be reproduced as under - (1) GROUNDS RAISED BY SMT. MEENA MEHRA, THE PETITIONER IN W.P. NO.5959/2008 (i) Complaint made by John Bosco Richardson did not contain any incriminating fact against the petitioner. (ii) The only role attributed to the petitioner is that, on 14.3.2002, while working as Tahsildar (Nazul), she had entertained an incomplete application, under Section 113 of :: 7 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 the MPLRC moved on behalf of Smt. Indira Pastala for correction of entry relating to the land in question in the revenue records whereas power to correct or cause to be corrected such an error vested in the Sub-Divisional Officer. But, in fact, the petitioner, considering the contents of the application, had proceeded under Section 115 for correction of a wrong entry in Khasra and not under Section 113 for correction of error in the record-of-rights. (iii) It was in the exercise of power conferred on her under Section 30(1) of the MPLRC that she had transferred the case to Vivek Tripathi, Naib Tahsildar. (iv) In the inquiry conducted by Inspector Rajyavardhan Maheshwari as well as in the supplementary enquiry conducted by Deo Vrat Mishra, the petitioner was not found involved in any offence and, therefore, proposal was made for recommendation to initiate departmental enquiry. (v) Even if the allegations as against her are taken at their face value and accepted in their entirety, no offence under the PC Act or the IPC would be made out. (2) GROUNDS RAISED BY VIVEK TRIPATHI, THE PETITIONER IN W.P. NO.2571/2011 - (i) The role ascribed to the petitioner Vivek Tripathi is that he deliberately passed orders for recording of the name of Augustine Pastala as a co-sharer with his wife Indira Pastala in respect of the holding in question despite the fact that her name was not recorded in the land records as the Bhumiswami, but as soon as he came to know about the error, he applied for necessary sanction as contemplated :: 8 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 under Section 51 of the MPLRC to review the corresponding order passed by him on 21.05.2002 and immediately after receiving the sanction, he had proceeded to set aside the same by way of order dated 15.07.2002. (ii) The proceedings initiated by him for partition of the land were in accordance with the provisions of Section 178-A of the MPLRC. (iii) Complainant John Bosco Richardson is a person against whom the petitioner had lodged an FIR and the other complainant Lalsingh Baghel is the Patwari under suspension against whom action was taken at the instance of petitioner only. Allegation made by them, in substance, is that he had made false entries in the revenue records in favour of Smt. Indira Pastala and her husband. But, considering his reply, Inspector Rajwardhan Maheshwari, who conducted the inquiry, proposed only departmental action against the petitioner. However, in the supplementary inquiry, another Inspector namely Deo Vrat Mishra, without giving any opportunity to explain his conduct, expressed a contrary opinion recommending registration of a case under Section 420 of the IPC and Section 13(1)(d) read with 13(2) of the PC Act against him ignoring the well settled legal position, as explained by a Division Bench of this Court in State of M.P. v. Srinivas Sharma (2005 (2) MPLJ 155), that a mere mistake committed in passing a quasi-judicial order does not make out an offence of misconduct. (iv) Allegation that his acts/omissions had resulted into a total loss of stamp duty to the extent of Rs.4,32,000/- is apparently hypothetical as the payment of stamp duty on a :: 9 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 partition deed is governed by proviso (c) to Article 45 of the Schedule I-A of the Stamp Act, 1899, that reads as under - “when land is held on Revenue settlement (Notwithstanding the fact that land revenue thereon is payable or not), the market value for the purpose of duty shall be calculated at sixty times the annual land revenue” Further, in an enquiry conducted by Nazul Officer, the allegation as to causing loss of stamp duty to the tune of Rs.4,32,000/- has been found to be baseless. (v) Necessary conditions contemplated under the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (for short “Adhiniyam”) for initiation of an enquiry were also not fulfilled. Moreover, the procedure prescribed under the Adhiniyam for making an enquiry into allegation, as defined in clause (b) of Section 2, was not followed. (vi) In view of the specific bar created by Section 8 of the Adhiniyam, the Lokayukt had no authority to enquire into the complaint made by Lalsingh Baghel as it was the subject matter of an enquiry conducted by SDO (Revenue), Jabalpur. (vii) Even if the allegations as against him are taken at their face value and accepted in their entirety, no offence would be made out. (viii) Article 21 of the Constitution of India not only protects life and liberty but also envisages a fair procedure and therefore, liberty of any person cannot be interfered with unless there exist cogent grounds therefor. :: 10 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 (3) GROUNDS RAISED BY ALOK KUMAR SHRIVASTAVA, THE PETITIONER IN MCRC NO.4261/2010 - (i) The sole allegation levelled against him is that while working as Nazul Officer, Jabalpur, he had accorded sanction under Section 51 of the MPLRC for review of the order-dated 21.5.2002 passed by Vivek Tripathi, Naib Tahsildar, Nazul in revenue case No.5/A-6-A/Year 2001-02 directing recording of names of Indira Pastala and her husband Augustine Pastala as co-owners of the land as per the partition deed whereas in view of the report that Rin pustika and Khasra entries forming basis of the order were found to be forged, he had no other option except to permit recalling of the order. (ii) Allegation as to loss of Rs.4,32,000/- as stamp duty to the State Government is apparently misconceived and upon an inquiry made by SDO (Revenue), Jabalpur, the corresponding complaint made against Vivek Tripathi has already been found to be false. (iii) In the main inquiry conducted by Rajyavardhan Maheshwari as well as supplementary one conducted by Deo Vrat Mishra, he was not found prima facie guilty of any offence. 6. Contents of the replies to the writ petitions as submitted on behalf of respondent nos.1 and 2 may be summed up in the following manner - Upon receipt of complaint in respect of illegal activities being committed by the petitioners Smt. Meena Mehra & Vivek Tripathi and other revenue officers, a detailed fact- :: 11 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 finding enquiry was conducted which unearthed the following facts - (a) Smt. Meena Mehra had no authority to act upon the application, under Section 113 of the MPLRC, moved on behalf of Smt. Indira Pastala as the power to deal with such an application vests only in a Sub-Divisional Officer. (b) Investigating Agency was able to seize relevant revenue records but the investigation could not proceed further in view of the interim stay order passed by this Court in Smt. Meena Mehra’s case. (c) Relevant procedure, prescribed in Section 110(4) of the MPLRC and Rule 32 of the Mutation Rules, was not followed. (d) By virtue of the provisions of Section 178 of the MPLRC, petitioner Vivek Tripathi, being a Naib Tahsildar, was not legally competent to deal with the prayer for partition between Smt. Indira and her husband Augustine Pastala of the land said to have been acquired by her only. Moreover, he directed substitution of their names in the record-of-rights wherein Dayabai was shown as the sole-Bhumiswami of the land. This apart, for the purpose of stamp duty payable on the partition deed, he assessed the value of land as 60 times of the lease rent that was fixed as Rs.1.44 and accepted stamp paper of Rs.100/- while ignoring the fact that a stamp duty was payable on Rs.1,37,898/- i.e. the market value of the land as the same had :: 12 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 already been earmarked for residential purpose since 1971-72. Furthermore, he proceeded to seek permission for reviewing the order-dated 21.05.2002, only after knowing about the complaint. (e) Petitioner Vivek Tripathi cannot take shelter of Sections 115 and 116 of the MPLRC, which relate to correction of wrong entry and an adjudication of dispute regarding entry in the Khasras and in any other land records by Tahsildar only. (f) Section 3 of the JP Act is also of no avail to the petitioners namely Meena Mehra and Vivek Tripathi as it only protects a Judge who acts within his authority/jurisdiction. (g) Section 8 of the Adhiniyam applies only to enquiry made by the Lokayukt regarding allegation against the public servant. It does not apply to an investigation being conducted by the SPE by virtue of explanation to Section 7 of the Lokayukt Adhiniyam read with Section 13(3)(iii) thereof. It is hardly material whether the complaint was made in a prescribed format or not. There is no bar under the law for taking cognizance of an offence by the SPE treating same as information. 7. While opposing the prayer for quashing the FIR as against petitioner Alok Shrivastava, learned Special Public Prosecutor has submitted that granting permission without proposing any action against the revenue officials prima facie found involved in initiation and completion of the proceedings so as to facilitate transfer of half of the land recorded in the name of Dayabai by Smt. Indira Pastala in favour of Augustine Pastala even without seeing the original record, also constituted parts of the conspiracy to cause wrongful :: 13 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 loss to the State Exchequer. According to him, by and large, it can easily be inferred that all the revenue officers named in the FIR with an ill motive had acted upon Smt. Indira Pastala’s application in collusion with each other. 8. Let us first advert to the preliminary objection based on sub- Section (1) of Section 3 of the JP Act, which reads thus - 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 duty or function. 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 :: 14 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 (See. State of T.N. v. G. N. Venkataswamy 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 '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.L.J. 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 :: 15 :: W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 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. 11. Turning to the