Cr.Applns.4924/10 & 4925/10 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATIONS NOS.4924/2010 & 4925/2010 CRIMINAL APPLICATION NO.4924/2010 Venkat s/o Limbaji Koli, age 49 yrs., occu.service, at present Tahsildar, Tahsil office, Tuljapur Tq.Tuljapur Dist.Osmanabad. ...Applicant.. Versus 1] The State of Maharashtra, through Police Inspector, Police Station, Neknoor Tq. & Dist.Beed. 2] Juber Ahmed Abdul Gafur Shaikh, Police Sub Inspector, Neknoor Tq. & Dist.Beed. ...Respondents... ..... Shri V.D. Salunke, Advocate for applicant. Shri V.D. Rakh, APP for respondent no.1. Respondent no.2 served. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Cr.Applns.4924/10 & 4925/10 - 2 - CRIMINAL APPLICATION NO.4925/2010 1] Pandit Yadavrao Misal, age 55 yrs., occu.service, Circle Inspector r/o Shirur (K) Tq. Shirur (K) Dist.Beed. 2] Dilip s/o Anandrao Surve, age 52 yrs., occu.service, Talathi r/o Sahyog Nagar, Beed, Tq. & Dist.Beed. 3] Madhukar s/o Gahininath Misal, age 50 yrs., occu.service, Circle Inspector, r/o Swarajya Nagar, Beed. Tq. & Dist.Beed. ...Applicants.. Versus 1] The State of Maharashtra, through Police Inspector, Police Station, Neknoor Tq. & Dist.Beed. 2] Juber Ahmed Abdul Gafur Shaikh, Police Sub Inspector, Neknoor Tq. & Dist.Beed. ...Respondents... ..... Shri V.D. Salunke, Advocate for applicants. Shri V.D. Rakh, APP for respondent no.1. Respondent no.2 served. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Cr.Applns.4924/10 & 4925/10 - 3 - CORAM: A.V. POTDAR, J. DATE: 13.04.2011 ORAL JUDGMENT : 1] Heard learned counsel for the parties. Rule. Rule made returnable forthwith. Heard finally at the stage of admission by the consent of learned counsel for the parties. 2] As both these applications filed by respective applicants arise out of the charge-sheet numbered as 56/2010 filed in the Court of JMFC, Beed, in connection with Crime No.98/2008 registered in Neknoor Police Station Dist.Beed hence the same are being disposed of by common judgment. 3] Such of the facts as are necessary for just decision of these applications can be summarized as follows: One Kishanbai w/o Murlidhar Kadam lodged a complaint in Neknoor Police Station on 13.8.2008 against Madhukar Hansraj Kadam, Ramkumar Madhukar Kadam, Mohiralal Vithaji Jagtap, Vasant Namdeo Chavan and one unknown lady, alleging that by personification, land Gut Nos.210, 374, 376 and 197 situated at village Lonighat was sold in favour of persons, who were arrayed as accused, under registered sale-deed dated 1.6.2001. It appears that Crime No.98/2008 came to be registered on the basis of this complaint. It appears that after Cr.Applns.4924/10 & 4925/10 - 4 - completion of investigation, charge-sheet was filed in the Court of JMFC, Beed, and it is numbered as RCC No.56/2010. The charge-sheet came to be filed on 28.7.2010. When the charge-sheet came to be filed, in the said charge-sheet, the applicants in both these applications were shown / arrayed as accused persons. 4] After the applications were moved before this Court, notices were issued to respondents. In response to the notices, learned APP appeared for respondent no.1 – State in both these applications. Respondent no.2 – the investigating officer - Shri Juber Ahmed Abdul Gafur Shaikh remained absent, though duly served. Hence, I have heard learned counsel for the applicants and the respondent no.1 – State, in both these applications. 5] I have perused the documents produced along with the charge-sheet so also the documents produced along with the affidavit in reply. It appears that following to the registration of the sale-deed, before the concerned Sub Registrar on 6.1.2001, the purchaser appears to have filed an application to effect the mutation entry in the revenue record on the strength of said sale-deed. So far as the applicant in the first application is concerned, he was working as Tahsildar, Beed, at the relevant time, while the applicant no.3 in the second application was working as Circle Inspector at Beed. The second applicant in the second application was working as Talathi and the applicant no.1 in the second application was working as Circle Inspector at Shirur Kasar. During the course of submissions Cr.Applns.4924/10 & 4925/10 - 5 - across the Bar, it is urged that the application to enter the name in the revenue record is required to be submitted as per the provisions under the Maharashtra Land Revenue Code before the village Talathi concerned. It is further submitted across the Bar that on receipt of the application, the notices of the application are required to be served on the vendors and objection is required to be called for from the persons, who are shown as vendors in the registered document, so also whose names appear in the revenue record and in whose name the particular land stands / stood. It appears that after following this procedure, the mutation entry was certified initially by the Circle Inspector and after hearing the respective parties, it was confirmed by the applicant in the first application. Because of these acts of the applicants, who were at the relevant time functioning as revenue officers, they are arrayed as accused in the aforesaid crime at the time of filing the charge-sheet. 6] Learned counsel for the applicants has urged that so far as the applicant in the first application is concerned, he comes under the definition of the “Judge” as defined under the Judges (Protection) Act, 1985. Section 2(a) of the said Act reads as follows: “In this Act, “Judge” means not only every person who is officially designated as 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 Cr.Applns.4924/10 & 4925/10 - 6 - be definitive, or a judgment which, if confirmed by some other authority, would be definitive.” Learned counsel for the applicants further submits that Section 77 of the Indian Penal Code speaks about act of a Judge when acting judicially and its effect. This section reads as follows: “Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.” At the same time, he has drawn my attention towards the protection granted to the judicial officers u/s 3 of the Judges (Protection) Act. Learned counsel for the applicants has urged that considering the provisions u/s 77 of the Indian Penal Code read with definition u/s 2(a) of the Judges (Protection) Act, 1985 read with protection granted to the judicial officer by virtue of Section 3 of the Judges (Protection) Act, 1985, and the confirmation of mutation entry by the applicant in the first application in the capacity as Tahsildar and while discharging his official duties as a Judge, then by virtue of the provisions u/s 77 of the Indian Penal Code so also Section 3 of the Judges (Protection) Act, there shall not be any prosecution against the applicant in the first application. 7] Learned counsel for the applicants in the second application has urged that the role played by these applicants – officers is that the application, which was Cr.Applns.4924/10 & 4925/10 - 7 - received by the second applicant in the second application was initially verified by the applicant nos.1 & 3 in the second application and submitted their report stating that it is a disputed mutation entry at their level and they cannot pass any order either to confirm or reject the mutation entry, but according to the provisions of the Maharashtra Land Revenue Code, they were supposed to refer the disputed mutation entry to the Tahsildar concerned, after making the entry of that mutation entry in the village record. These acts were done by these applicants in the discharge of their official duties. In view of this, it is submitted that these applicants cannot be prosecuted for any of the offences shown in the charge-sheet filed against them in which they are arrayed as accused. 8] Per contra, learned APP appearing for respondent no.1 – State, submits across the Bar that there are some mala-fides against the applicants, which are described in the affidavit in reply and hence he opposed to quash the proceedings against the applicants. 9] Considering the rival submissions across the Bar, it cannot be disputed that the applicant in the first application had passed the order about confirmation of the mutation entry acting as a “Judge” as defined u/s 2(a) of the Judges (Protection) Act, 1985. In the premises, the act committed by him, for which he is protected as he has acted in performing his judicial duty firstly u/s 3 of the Judges (Protection) Act and secondly u/s 77 of the Indian Penal Code which states that nothing is an Cr.Applns.4924/10 & 4925/10 - 8 - offence, which is done by a Judge when acting judicially in the exercise of any power which is or which in good faith he believes to be, given to him by law. Confirmation of the mutation entry is an order passed judicially by the revenue officer and hence fully covered under the ambit of Section 77 of the Indian Penal Code. Similarly, the acts committed by the applicants in the second application, as reflected from the papers of investigation on record, show that they have done those acts in good faith while performing their official duties. If it is so, on perusal of the charge-sheet, it can be said that they have not committed any offence, for which they can be prosecuted as per the sections quoted in the charge-sheet. 10] In the substance, both these applications succeed and the same are allowed in terms of prayer clause (A) of the respective applications. The proceedings under the charge-sheet No.56/2010 on the file of learned Judicial Magistrate, First Class, Beed, are hereby quashed and set aside to the extent of the applicants in both these applications. Rule is made absolute accordingly and both the applications stand disposed of. (A.V. POTDAR, J.) ndk/cr1341126