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 1 2025:UHC:3174-DB 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 in 2 2025:UHC:3174-DB revision. 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.” 3 2025:UHC:3174-DB 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 4 2025:UHC:3174-DB 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 5 2025:UHC:3174-DB 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 6 2025:UHC:3174-DB 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. 7 2025:UHC:3174-DB 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 8 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'