1 criwp218.05 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 218 OF 2005 Narsinha Pandurang Garkhedkar, Age : 60 years, Occ : Pensioner, R/o Ward No. 6, Near Dr. Shelke Hospital, Shrirampur, Tq. Shrirampur, Dist. Ahmednagar ..PETITIONER -VERSUS- 1. The State of Maharashtra 2. Arjun Rangnath Chaudhari, Age : 70 years, Occ : Agri., R/o Shekaiwadi, Tq. Akole, Dist. Ahmednagar. 3. Santu Bhimaji Shinde, Age : 42 years, Occ : Agri., R/o Shekaiwadi, Tq. Akole, Dist. Ahmednagar. 4. Vijay S/o Arjun Chaudhari, Age : 37 years, Occ : Agri., R/o Parkhatpur, Tq. Akole, Dist. Ahmednagar. ..RESPONDENTS WITH CRIMINAL WRIT PETITION NO. 206 OF 2005 Santu Bhimaji Shinde, Age : 42 years, Occ : Agri., R/o Shekaiwadi, Tq. Akole, Dist. Ahmednagar. ..PETITIONER -VERSUS- 1. The State of Maharashtra 2. Arjun Rangnath Chaudhari, Age : 70 years, Occ : Agri., R/o Shekaiwadi, Tq. Akole, Dist. Ahmednagar. ..RESPONDENTS 2 criwp218.05 ..... Shri R.N. Dhorde holding for Shri R.A. Tambe, learned counsel for the petitioner in Cri.W.P. No. 218/2005. Shri R.N. Dhorde holding for Shri P.S. Ghuge, learned counsel for the petitioner in Cri.W.P. No. 206/2005. Smt. V.A. Shinde, A.P.P. for respondent no. 1 in both Petitions. Shri S.K. Shinde, learned counsel for respondent no.2 in both Petitions. ..... (CORAM : A.V. POTDAR, J) DATED : 12th October, 2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of learned counsel for the parties heard finally at the stage of admission. 2. As the common question is involved in both these Petitions, both the Petitions to be disposed of by the common judgment. 3. Heard learned counsel for the petitioners in both these Petitions, followed by the submission of learned counsel for the respondent-original complainant and the learned A.P.P.. 4. Such of the facts which are necessary for the decision in these Writ Petitions can be summarized as follows. For the sake of clarity, the respondent-Arjun will be referred 3 criwp218.05 to as "the Landlord" and respondent-Santu will be referred to as "the Tenant". This Santu is the petitioner in Writ Petition no.206 of 2005. It is not under dispute that the landlord-Arjun executed the lease deed in favour of tenant-Santu of the share of his agricultural land vide lease deed dated 26th November, 1986. It appears that this Santu-tenant filed an application under Section 32-O of the Bombay Tenancy and Agricultural Lands Act, 1948 for the fixation/ determination of price of the land in his possession as a tenanted land. This application was rejected by the Tahsildar, Akole, Dist. Ahmednagar by his judgment and order dated 17th January, 1998. This Tahsildar is the petitioner in First Petition. The order passed by the Tahsildar on application moved by the tenant-Santu is challenged before the learned Sub-Divisional Officer in appeal. This appeal came to be dismissed by the judgment and order dated 18th May, 1998. It appears and the record shows that the order of dismissal of appeal by Sub-Divisional Officer was challenged in Revision bearing No. MRT-AH-VI/1/98 (B-95/98). The learned Member of the Maharashtra Revenue Tribunal allowed this Revision application and the matter was remitted back to the trial Court for fixation of price as contemplated under Section 32-O of the Bombay Tenancy and Agricultural Lands Act, 1948. The 4 criwp218.05 learned M.R.T. has observed in its judgment that the documents on record clearly establish the relation of landlord and tenant between Arjun and Santu. It appears that the order passed by the M.R.T. was challenged before this Court by landlord-Arjun in Writ Petition no. 895 of 1999. The Hon'ble Single Judge of this Court by his judgment and order dated 17th April, 2001 pleased to dismiss the Writ Petition filed by the landlord-Arjun. Record shows the order passed by the learned Single Judge of this Court was further questioned in S.L.P. (Civil) No. 6731/2002. The Apex Court by its order dated 16th August, 2002 pleased to dismiss the S.L.P. preferred by the landlord-Arjun in limine. Thus, the record clearly establishes the relation between Arjun and Santu is of landlord and tenant and which is upheld till the Apex Court. 5. It appears that while tenancy proceeding was pending, Civil Suit bearing Regular Civil Suit No. 142 of 1990 was filed by the tenant-Santu before the learned Civil Judge, Junior Division, Akole for perpetual injunction. It appears that after about 10 years on 19th October, 2000, the learned Civil Judge, Junior Division pleased to refer the issue whether, Santu is tenant of the land as claimed ? It appears that this proceeding was separately numbered as 1/2001 before the Tahsildar as tenancy reference case. It appears that this tenancy reference was before the present 5 criwp218.05 petitioner, who at the material time was working as Tahsildar, Akole, Dist. Ahmednagar. It appears that as the landlord-Arjun lodged some complaints against the petitioner-Tahsildar, this petitioner Tahsildar intimated the Collector that he is due for retirement on 31.05.2003, hence he will not hear the reference further. It is urged that as the landlord Arjun and his Advocate have shown their willingness to proceed with the matter, the matter is proceeded on 29th May, 2003 and the order came to be passed on 31st May, 2003 that Santu is a tenant of the land in his possession to the extent of land of Arjun. It appears that this order passed by the petitioner-Tahsildar was also challenged by way of Appeal no. 87 of 2003 before the Sub-Divisional Officer, Sangamner. By judgment and order dated 21st October, 2003, the learned Sub- Divisional Officer pleased to dismiss the appeal with specific observations that the tenancy of Santu is established in the proceedings till the Supreme Court and has reached its finality, and considering this aspect now this issue need not be reopened again. 6. It appears that, somewhere before the judgment and order to be passed in appeal pending before the Sub-Divisional Officer bearing No. 87/2003, on 16th October, 2003, landlord Arjun through his power of attorney, lodged a report before the Judicial 6 criwp218.05 Magistrate, First Class, Akole bearing No. 289 of 2003 against both the petitioners, Village Kamgar Talathi, Record Keeper and Copying Clerk and other officers for the offence punishable under Sections 166, 167, 219, 107, 109, 420, 34 of the Indian Penal Code. This Misc. Criminal Application later on renumbered as R.T.C. No. 77 of 2004. It appears that on 24th March, 2004, the learned Trial Magistrate, Akole pleased to direct the Superintendent of Police to carryout the investigation under Section 202 of the Code of Criminal Procedure. On receipt of the report from Police, the learned Magistrate passed the order on 16th October, 2004 dismissing the complaint against other persons those who were arrayed as accused and also both these petitioners for the offence under Section 415 and 420 of the Indian Penal Code, but pleased to issue the process under Sections 166, 167, 219, 109 r/w 34 of the Indian Penal Code against the petitioners only, which order of issuance of process is impugned in both these Writ Petitions. 7. During the course of submission in the background which is stated in earlier paragraphs supra, it is urged that the issue in respect of Santu is tenant of the land of ownership of landlord- Arjun is finally decided upto the Supreme Court. Merely because, some reference is made by the Civil Judge, Junior Division in the 7 criwp218.05 Civil Suit pending before him of the year 1990 in which the order came to be passed by the present petitioner declaring Santu as tenant of the land of the ownership of Arjun-Landlord, this order is passed by him in his capacity while discharging his duty as Judicial Officer. Even though, it is observed that this order came to be passed at subsequent stage, yet considering the scope of sections 166, 167, 219, 109 r/w 34 of the Indian Penal Code, it cannot be said that the petitioner in First Petition, who is also a public servant within the meaning of definition of Indian Penal Code while discharging his duty has passed any order contrary to law to show some favour to the tenant-Santu. In the substance, it is urged that he is not liable for prosecution for which the process is issued against him. Per contra, the learned counsel appearing for the original complainant-landlord-Arjun supports the order impugned, as according to him, after the petitioner in Writ Petition No. 218/2005 has intimated to the Collector that as he is due for retirement on 31st May, 2003 and is not able to hear the matter, even then he heard the matter and passed the order. According to the learned A.P.P. no opportunity was given to the original complainant and order is passed and therefore, this is a criminal offence. Literally this submission is unknown to the criminal law and by no stretch of imagination it can be said that denial of opportunity amounts to criminal offence within the meaning of the 8 criwp218.05 Indian Penal Code. 8. Considering this submission across the bar, at this juncture, it is necessary to advert to Section 77 of the Indian Penal Code which states that nothing is an offence which is done when acting judicially. Section 77 of the Indian Penal Code reads as follows : Section 77 :Act of Judge when acting judicially :- 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. 9. It appears that while issuing process by the learned trial Magistrate, he is not given any thought that the complaint is lodged against the judicial pronouncement made by the petitioner in the first Petition who was acting as judicial officer as Tahsildar and is also a judicial officer within the meaning of Judges Protection Act and as defined as Judge. Thus, the order passed by the petitioner in the first Petition is in the capacity as a Judge. It is a fact that this order is upheld by his Superior Officer in appeal no. 87/2003 i.e. Sub-Divisional Officer by its judgment and order dated 21st October, 2003. With his specific observations in the Judgment in 9 criwp218.05 appeal that as the issue, Santu is a tenant of the land of Arjun has reached its finality as the issue is decided and confirmed till the Supreme Court and hence, it is unwarranted that again the issue to be reopened and called upon to decide. In his order passed in appeal preferred by tenant Arjun nowhere reflect that the act of the petitioner acting as a Judge in excess of jurisdiction vested in him. No finding is recorded by the Sub-Divisional Officer in appeal that the order dated 31st May, 2003 was passed infact after 31st May, 2003 when summons were issued as tried to be urged before this Court on behalf of the original complainant were made returnable on 4th January, 2004. As the superior Officers of the petitioner in their judgment not only confirmed the order passed by the petitioner in the first petition but have not passed any adverse remark questioning the integrity of the petitioner in first Petition while exercising his duty as judicial officer then certainly the petitioner in the first Petition is entitled for the protection under Section 77 of the Indian Penal Code and if the petitioner in the first Petition is entitled for the protection under Section 77 of the Indian Penal Code, then process issued against him by the trial Magistrate dated 16th August, 2004 is unwarranted and required to be quashed and set aside. The petitioner in the first Petition has declared the right of the petitioner in the second Petition, which are already decided and confirmed upto the Supreme Court then 10 criwp218.05 nothing contrary is done by the petitioner in the first Petition while acting as judicial Officer and declaring the order dated 31st May, 2003. 10. In the result, both the Petitions succeed. The impugned order dated 16th October, 2004 of issuance of process against these petitioners required to be quashed and set aside. Accordingly, the order impugned is quashed and set aside. Both the Petitions are allowed as indicated above. Rule is thus made absolute. (A. V. POTDAR, J) ga s/ criwp 218.05