Prashant Kumar Agarwal, J. - (1.) The accused -petitioner has filed this Criminal Misc. Petition under Sec. 482 Cr.P.C. with a prayer to quash FIR No. 203/2013 registered at Police Station Anti -Corruption Bureau, Jaipur for the offence under Sec. 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act") and for offences under Ss. 166, 167, 218, 465, 471 read with Sec. 120 -B IPC to his extent.
(2.) Brief relevant facts for the disposal of this petition may be stated as below: - - "(1) Agriculture land comprising Khasra Nos. 3392, 3398, 3399, 3400, 3401 and 3405 total area 77 bigha and 15 biswa initially stood in the name of co -accused -Shri Ranveer Singh in the revenue records, but by way of order dated 24.11.1960 passed in Mutation Proceedings No. 16 of the year 1960, the same was ordered to be mutated in the name of complainant -Shri Nanag Ram and some other persons by the concerned Gram Panchayat and thereafter in the revenue record name of the complainant and other persons was entered as khatedar -tenant. (2) Co -accused -Shri Ranveer Singh challenged the order dated 24.11.1960 by way of Appeal No. 17/2001 before SDO Amer, Headquarter Jaipur, but the appeal was dismissed vide order dated 12.04.2009 on the ground that the appeal is barred by limitation. (3) The order dated 12.04.2009 passed by SDO Amer was further challenged by co -accused -Shri Ranveer Singh in Second Appeal No. 71/2002 before the Divisional Commissioner, Jaipur and the second appellate Court vide order dated 22.10.2009 partly allowed the appeal and set aside the order dated 12.04.2002 and the matter was remanded back to SDO Amer with a direction to re -consider the matter and to pass a fresh order after affording opportunity of hearing to both the parties. (4) The aforesaid order of Divisional Commissioner, Jaipur was challenged by the co -accused -Shri Ranveer Singh as well as by complainant -Shri Nanag Ram and others by two separate revision petitions filed before the Board of Revenue, Rajasthan, Ajmer. Co -accused -Shri Ranveer Singh filed Revision Petition No. 1174/2010 whereas Nanag Ram and others filed Revision Petition No. 280/2010. As both the aforesaid revision petitions were filed against the same order of Divisional Commissioner, Jaipur, they were connected and listed together before the Single Bench of the Board of Revenue from time to time till 5.7.2012 as per Sec. 55 of the Rajasthan Land Revenue Act, 1956 and the practice prevailing in the Board. (5) On 5.7.2012, both the aforesaid Revision Petitions were listed before the petitioner as Member of the Board of Revenue in Court No. 4 alongwith other cases and whereas Revision Petition No. 280/2010 was listed at S. No. 44 of the daily cause list, Revision Petition No. 1174/2010 was listed at S. No. 45. These petitions were listed in the category of orders on applications. (6) On 5.7.2012, although the aforesaid Revision Petition No. 1174/2010 filed by the co -accused -Shri Ranveer Singh was not listed for final hearing or final disposal, but even then, the petitioner as Member of the Board finally heard counsel for the co -accused -Shri Ranveer Singh in absence of counsel for the complainant -Shri Nanag Ram and others and judgment/order was reserved whereas the Revision Petition No. 280/2010 was adjourned for 26.7.2010. It is to be noted that in the order -sheet of Petition No. 1174/2010, it was recorded that counsel for the complainant and others did not appear before the Court despite they were called upon to appear before it whereas in the other petition presence of the counsel for the complainant and others was marked. (7) On 17.7.2012 final judgement was passed and pronounced by the petitioner as Member of the Board of Revenue in Revision Petition No. 1174/2010 without listing it in the daily cause list in the category of pronouncement of judgment/order as required under Rule 63 of the Rajasthan Revenue Courts Manual, 1956. (8) On 5.7.2012 itself at 3.30 p.m. complainant -Shri Nanag Ram Sharma filed an application under Sec. 151 CPC before petitioner with a prayer to release the case from his Bench and not pass judgment in it but the application was dismissed by the petitioner on the same day with the observation that once final arguments have been heard in the matter, it would not be proper to consider such an application. In the application, apart from other facts, it was specifically mentioned that the complainant has lost faith in the petitioner and he intends to file application for transfer of the case before Chairman. (9) The complainant -Shri Nanag Ram Sharma on 10.7.2012 filed a detailed application before Chairman of Board of Revenue with a prayer to release the aforesaid case from the Court of the petitioner. No immediate action was taken on this application and in the meanwhile judgment was pronounced on 17.7.2012. (10) Complainant -Shri Nanag Ram Sharma moved an application on 19.7.2012 under Sec. 151 read with Order 41 Rule 5 CPC before petitioner with prayer to suspend the operation of judgment dated 17.7.2012 and to grant time to him and others so that the aforesaid order can be challenged before High Court, but vide order dated 20.7.2012 petitioner issued notice to other party and no effective order was passed on this application till 1.8.2012 and in the meantime on the basis of judgment dated 17.7.2012, mutation was opened by the Tehsildar in favour of co -accused -Shri Ranveer Singh on 23.7.2012. (11) Complainant -Shri Nanag Ram Sharma filed a complaint on 6.9.2012 before ACB, Jaipur upon which preliminary inquiry No. 179/2012 was registered. It is to be noted that after initial inquiry no offence was found to have been committed by petitioner and it was found that petitioner passed judgment dated 17.7.2012 as a Judge and his act is protected under Sec. 3 of the Judge's (Protection) Act, 1985 and no civil or criminal proceedings can be undertaken against him in any Court, but at the same time it was concluded that the judgment has been passed in violation of some legal provisions. (12) The self contained note prepared by ACB was sent by it vide letter dated 26.12.2012 to Chairman, Board of Revenue for necessary departmental action against the petitioner and the same was further sent by Chairman vide letter dated 2.1.2013 for necessary action to Principal Secretary, DOP, Rajasthan. (13) Principal Secretary, DOP, Rajasthan vide letter dated 11.2.2013 sought comments from Chairman, Board of Revenue on the self contained note prepared by ACB and the Chairman vide letter dated 26.4.2013 after inquiring into the matter opined that no further action is required to be taken against the petitioner. (14) Dissatisfied with the aforesaid self contained note prepared by ACB, complainant submitted a representation to Chief Secretary, Government of Rajasthan on 5.3.2013 on which opinion of the Law Department was sought which opined that from the facts available in the preliminary report prepared by ACB offences under IPC and the Act are disclosed. Opinion of the Law Department was forwarded by the Chief Secretary to ACB, who after thorough examination and consultation registered FIR No. 203/2013 against petitioner and others for offence under Sec. 13(1)(d) read with Sec. 13(2) of the Act and for offences under Ss. 166, 167, 218, 465, 466, 471 and 120 -B IPC and investigation was undertaken."
(3.) It was submitted by the learned counsel for the petitioner that the judgment dated 17.7.2012 has been passed by the petitioner as a Member, Board of Revenue while discharging his judicial function and, therefore, he was acting as Judge within the meaning of Sec. 2 of the Judge's (Protection) Act, 1985 and he is protected under Sec. 3 of the said Act as it provides that 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. It was further submitted that the judgment passed by the petitioner in the capacity of a Judge cannot be allowed to be made subject of scrutiny by ACB, more particularly in view of the fact that the same is under challenge before High Court by way of Writ Petitions filed by the complainant and others. Inviting attention of the Court towards Sec. 77 IPC, it was also submitted that 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. According to learned counsel for the petitioner, the petitioner acting as member of Board of Revenue believed in good faith that he is empowered to hear and decide the revision petition finally after affording opportunity of hearing to counsel for the parties and, therefore, no offence can be said to have been committed by him if he has decided the aforesaid revision petition. It was submitted that if for the sake of arguments allegations made in the FIR are taken to be on their face value and considered to be correct even then no offence under the provisions of Act is disclosed as it is not the case of even prosecution itself that petitioner demanded and obtained bribe from any person including complainant. It was submitted that it is well settled legal position that for an offence to be made out even for an offence under Sec. 13(1)(d) of the Act, it is to be shown that demand of bribe was made by a public servant and it was accepted by him. It was further submitted that otherwise also only allegation against the petitioner is that judgment dated 17.7.2012 was passed by him without following the prescribed procedure or in violation of some of the legal provisions but merely by that reason, criminal proceedings cannot be initiated against him and at the most departmental action can be taken against the petitioner. In this regard, attention of the Court was brought towards the fact that after undertaking preliminary inquiry on the complaint, ACB came to a definite conclusion that no offence is disclosed against petitioner and at the most he is liable for departmental action and a detailed report to that effect was submitted before Chairman, Board of Revenue and Chairman in his detailed comments dated 26.4.2013 clearly opined that no action of any kind is necessary to be taken against the petitioner, but later on under the pressure and influence of some higher authorities, ACB changed its stand and registered FIR. It was submitted that ACB cannot be allowed to undertake scrutiny of a judgment passed by a Court and the same can be challenged only before a proper forum. It was submitted that no other offence also for which the FIR has been registered is made out against the petitioner. Learned counsel for the petitioner posed a question before the Court what would happen if the petitioner is compelled to face the criminal prosecution and on the other hand judgment in question is upheld by Hon'ble High Court in the writ petition filed by the complainant and others.;