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Uttarakhand High Court
Jayanti Prasad Saxena vs State Of Uttarakhand & Others on 28 April, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:3174-DB
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Special Appeal No.689 of 2018
Jayanti Prasad Saxena ...Appellant
Vs.
State of Uttarakhand & others ... Respondents
Presence:
Mr. S.K. Mandal, learned counsel for appellant.
Mr. Sudhir Kumar Nainwal, learned Standing Counsel for State of
Uttarakhand.
Coram: Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Ashish Naithani, J.
JUDGMENT:
(per Hon’ble Justice Sri Manoj Kumar Tiwari)
Appellant was posted as Assistant Consolidation
Officer at Kichha, District Udham Singh Nagar in the year
1995 and he decided two consolidation cases, namely 292
of 1995 and 344 of 1995. A complaint was made that
judgment rendered by appellant in those two cases is
contrary to statutory provisions and the judgment was
passed by him for extraneous reasons, which has resulted
in huge loss to public exchequer.
2. Commissioner, Kumaon Division ordered for an
inquiry into the allegation made in the complaint. Joint
Director, Uttarakhand Academy of Administration, Nainital in
his inquiry report held that Assistant Consolidation Officer
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has no jurisdiction to decide claim for title based on adverse
position and further that a dispute regarding adverse
possession cannot be decided, based on compromise.
Various other observations were made in the report
submitted by the Inquiry Officer i.e. Joint Director,
Uttarakhand Academy of Administration, Nainital.
3. Based on the inquiry report, Commissioner
Kumaon Division issued letter dated 02.03.2015 to the
District Magistrate, Udham Singh Nagar to register a First
Information Report regarding acts of omission and
commission committed by the appellant while deciding the
aforesaid cases.
4. The Consolidation Officer, Udham Singh Nagar
issued a consequential letter dated 01.04.2015 to
Consolidation Officer, Kichha, asking him to register First
Information Report against the appellant.
5. Feeling aggrieved by the aforesaid letters dated
02.03.2015 and 01.04.2015, appellant filed Writ Petition
(Crl.) No. 451 of 2015. Learned Single Judge dismissed the
writ petition filed by the appellant, vide judgment dated
27.07.2018. The impugned judgment is extracted below:-
“2. Brief facts of the case are that the petitioner,
while posted as Assistant Consolidation Officer at
Consolidation Court, Kichha, District Udham Singh
Nagar, decided cases no.992/1995 and 344 of 1995,
by judgment dated 2.1.1995. Against the said
judgment, aggrieved party preferred an appeal,
wherein the order passed by the petitioner was
confirmed. Further aggrieved, aggrieved party went in2
2025:UHC:3174-DBrevision. Meanwhile, the petitioner after attaining the
age of superannuation, got retired from service on
31.7.1997. On 02.6.2014, a complaint was moved by
one Nanhu Singh Pal alleging that the petitioner has
passed the judgment dated 2.1.1995, without
jurisdiction and has caused crores of revenue loss to
the State. On the complaint, inquiry was conducted
and inquiry report was submitted by Joint Director,
A.T.I., Nainital before the Commissioner stating that
mutation has been made on the basis of compromise
and there is no registered sale deed and that the
judgment passed by the petitioner, on the basis of
adverse possession, is not correct. Thereafter, the
Commissioner sent a letter to the D.D.C./ District
Magistrate, Udham Singh Nagar, to take action
against the petitioner in accordance with law. District
Magistrate, after seeking opinion from the D.G.C.
(Civil), sent a letter to the Commissioner stating that
the petitioner has retired in the year 1997 and he was
the employee of the State of U.P., hence, no action
can be taken against the petitioner. Thereafter,
02.03.2015, on the Commissioner Kumaon Division,
Nainital sent a letter to the District Magistrate, Udham
Singh Nagar, stating that as the departmental
proceeding cannot be initiated against the petitioner,
therefore, F.I.R. may be lodged and accordingly
Consolidation Officer, Kichha was directed to lodge
F.I.R.
3. Counter affidavit has been filed on behalf of
respondent nos.4 and 6 wherein it is stated at para-13
that the then Assistant Consolidation Officer
(petitioner) passed the order dated 2.1.1995 against
the provisions of Section 9A of U.P. Consolidation of
Holdings Act, 1953. The petitioner, vide its order
dated 2.1.1995, given the adverse possession of the
land on the basis of the consent/compromise which is
against the provisions of law. The transfer of the land
has been done without registered sale deed and on
account of the illegal act, the State has lost its
revenue/stamp duty.
4. Having heard learned counsel for the parties and
after going through the material available on record,
this Court does not find any illegality or perversity in
the impugned orders, so as to invoke extraordinary
jurisdiction under Article 226 of The Constitution of
India.
5. Writ petition lacks merit and is hereby dismissed.
No order as to costs.”
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6. In this intra court appeal, appellant has challenged
the aforesaid judgment rendered by learned Single Judge.
7. Learned counsel for the appellant submits that
appellant decided the aforesaid cases during the course of
his official duty, as he was posted as Assistant
Consolidation Officer, Kichha at the relevant point of time,
therefore, he cannot be held criminally liable for deciding
those cases. He submits that the Judicial Officers’ Protection
Act, 1850 shields judicial officers from law-suits, even if the
judgment rendered by them exceeds their jurisdiction.
Section 1 of the Judicial Officers’ Protection Act, 1850 is
reproduced below, for ready reference:-
“1. Non-liability to suit of officers acting judicially, for
official acts done in good faith, and of officers
executing warrants and orders.–No Judge,
Magistrate, Justice of the Peace, Collector or other
person acting judicially shall be liable to be sued in
any Civil Court for any act done or ordered to be done
by him in the discharge of his judicial duty, whether or
not within the limits of his jurisdiction:
Provided that he at the time, in good faith, believed
himself to have jurisdiction to do or order the act
complained of; and no officer of any Court or other
person, bound to execute the lawful warrants or
orders of any such Judge, Magistrate, Justice of the
Peace, Collector or other person acting judicially shall
be liable to be sued in any Civil Court, for the
execution of any warrant or order, which he would be
bound to execute, if within the jurisdiction of the
person issuing the same.”
8. Learned State Counsel submits that reliance by
appellant on Judicial Officers’ Protection Act is misplaced, as
it only provides that a person acting judicially cannot be
sued in any Civil Court for the acts done or ordered to be
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done in the discharge of his judicial duties. He further
submits that protection available under the said Act would
be available only for an act done in good faith and the
allegation against the appellant is that he abused his power
for extraneous reasons, thereby caused huge financial loss
to the public exchequer.
9. Learned counsel for the appellant then relied
upon the Judges (Protection) Act, 1985 and submitted that
the said act shields a person exercising judicial powers
against criminal proceedings also. Section 3 of the said Act
is reproduced below:-
“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 such action
(whether by way of civil, criminal, or departmental
proceedings or otherwise) against any person who is
or was a Judge.”
10. Learned State Counsel contended that the
protection under Section 3 of the Judges (Protection) Act,
1985 would not be available when a person performing
judicial functions, acts with corrupt motive and abuses his
position as public servant. He further submits that
protection of Section 3 would not be available against
lodging of FIR for the alleged acts of omission and
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commission by a person acting judicially, as the FIR is only
for the purpose of investigation and the object of
investigation is the discovery of truth. Learned State
Counsel relied upon a judgment rendered in S.B. Criminal
Misc. Petition No. 1440 of 2013 (Rajesh Verma v. State of
Rajasthan and others), reported in 2014 (2) RLW 1207
(Raj.). Paragraph no. 7 of the said judgment is reproduced
below:-
“7. The contention of the present petitioner is that he
has acted as a judge and in good faith, hence he is
protected under Section 2 of the Act of 1985 and
reliance has been placed on Smt. Gyatri Jain
P.C.S. v. State of Punjab, (2005) 140 PLR 225 wherein
it has been held that Section 3 of the Act of 1985 gives
protection to every person who is empowered by law to
give in any legal proceedings a definitive judgment.
Here in the present case, it cannot be disputed that
present petitioner was working as a judge in the
capacity of Sub Divisional Officer. Further reliance has
been placed on S.P. Goel v. Collector of Stamps, Delhi,
(1996) 1 SCC 573 where it has been held that even
Collector (Stamps) is entitled from immunity from legal
action contemplated by the act.
Per contra, the respondent has relied upon Ravi
Shankar Srivastava v. State of Raj., WLC (Raj.) 2005
(2) 612 where the court has held that when the public
servant has accepted the gratification, he cannot claim
the immunity under the Act. This is not the case here in
the present matter. Further reliance has been placed
on Shantu Lal Sharma v. State of Raj., Cr.L.R. (Raj.)
2005 (2) 1370 where it has been held that protection
under Section 2 or 3 of the Act of 1985 is not
unbounded and unqualified where the petitioner has
acted with corrupt motive and abused his office as
public servant, he cannot claim protection. There is no
quarrel about this legal proposition but here in the
present case, nothing has been alleged in the First
Information Report that present petitioner has misused
his power as Sub Divisional Officer, he was competent
to decide the issue which he has decided.”
11. Learned State Counsel further submits that the
allegation against the appellant is that, he not only acted
without jurisdiction while passing the order, but, he also
made overwriting in the judicial records, and for discovery
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of truth, a thorough investigation would be necessary;
there is nothing wrong in the direction issued by
Commissioner, Kumaon Division to register FIR against the
appellant. He further submits that since appellant retired in
1997, therefore, he has become immune from departmental
proceedings and registration of FIR is the only remedy
available for discovery of truth. He further submits that by
registration of FIR, no prejudice is going to be caused to the
appellant, as the police will investigate the matter and file
chargesheet or closure report, as the case may be,
depending on the evidence collected during investigation.
12. This Court finds substance in the submissions
made by learned State Counsel. The protection under
Judicial Officers Protection Act, 1850 is available only
against proceedings in a Civil Court. The protection under
the Judges (Protection) Act, 1885 would not be available to
the appellant in case he has acted with corrupt motive and
abused his position as public servant and forged the record.
This aspect can only be ascertained during the investigation
by the police. The object of investigation is discovery of
truth, therefore, appellant should not be afraid of
investigation, if he has discharged his duties in good faith,
without any corrupt motive.
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13. We concur with the view expressed by learned
Single Judge. Thus, there is no scope for interference with
the impugned judgment.
14. The Special Appeal fails and is dismissed.
(Ashish Naithani, J.) (Manoj Kumar Tiwari, J.)
28.04.2025
Arti
ARTI SINGH Digitally signed by ARTI SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521F982, cn=ARTI SINGH
Date: 2025.05.01 18:00:24 -07’00’
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