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TMI Blog2021 (7) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... edly, sanction for prosecution against the petitioner under Section 19(1) of the PC Act has been granted by the State Government. Once sanction under Section 19(1) of the PC Act has been granted for prosecution against the petitioner, it is not necessary to obtain any separate sanction of the Government under Section 79(1) of the KVAT Act. There can be no doubt with regard to the fact that the assessment orders dated 04.05.2011 and 31.05.2011 passed by the petitioner are in the nature of definitive judgments in legal proceedings. There is no dispute with regard to the fact that the petitioner was empowered by law to pass the assessment orders. In such circumstances, the petitioner, while passing the assessment orders dated 04.05.2011 and 31.05.2011, had discharged functions as a Judge as envisaged under Section 2 of the Act. Whether passing an assessment order under the KVAT Act constitutes an act in the discharge of judicial functions or duties as envisaged under Section 3(1) of the Act? - HELD THAT:- The act of the petitioner, passing the assessment orders dated 04.05.2011 and 31.05.2011, as a quasi-judicial authority under the KVAT Act, was an act done or committed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PP VACAB ORDER R. NARAYANA PISHARADI, J Whether an Assistant Commissioner of the Sales Tax Department, who passes an order of assessment of tax under the Kerala Value Added Tax Act, 2003 (for short 'the KVAT Act'), is entitled to get the protection envisaged under the Judges (Protection) Act, 1985? Answer to this question would decide the fate of this application filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code'). 2. The petitioner was the Assistant Commissioner (Assessment), Commercial Taxes, Thrissur. He is the first accused in the case C.C.No.6/2020 on the file of the Court of the Enquiry Commissioner and Special Judge, Thrissur. The second accused in the case was the Managing Director of the company by name M/s. Nano Excel Enterprises Private Limited. The third accused in the case is the Sales Tax Practitioner who had allegedly acted as a mediator between the first and the second accused. The offences alleged against the accused in the case are punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act') and also under Sections 465, 468, 471 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other accused in the case. 7. Heard learned counsel for the petitioner and also the learned Public Prosecutor. 8. Learned counsel for the petitioner has challenged Annexure-A2 final report filed against the petitioner mainly on the following two grounds. (1) The prosecution against the petitioner is based on acts done or committed by him in good faith in discharge of his duties under the KVAT Act and therefore, he is entitled to get the protection under Section 79 of the KVAT Act. (2) The prosecution against the petitioner is based on orders of assessment of sales tax passed by him as a quasi-judicial authority. He is entitled to get the protection envisaged under Section 3(1) of the Judges (Protection) Act, 1985. 9. Per contra, the learned Public Prosecutor has submitted that the assessment orders were passed by the petitioner not in good faith and he had violated the written directions given by the Deputy Commissioner. Learned Public Prosecutor has also submitted that the petitioner is not entitled to claim any protection or immunity under any law in respect of mala fide acts of corruption committed by him. 10. The prosecution against the petitioner is based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. The crucial test is whether the act has in fact been done honestly. Whether it is done negligently or not would not be material. Whether a thing has been done honestly is a question of fact to be determined with reference to the circumstances of a particular case. 16. However, as per Section 52 of the Indian Penal Code, nothing is said to be done or believed in good faith which is done or believed without due care and attention. The element of honesty, which is incorporated in the definition of good faith under the General Clauses Act, is not introduced in the definition of it under the Indian Penal Code. 17. Whether or not an act was done in good faith is a question of fact. It is a question of fact to be determined in accordance with the proved facts and circumstances of each case. It is not a matter to be decided in a proceeding under Section 482 of the Code. Therefore, whether the petitioner is entitled to get the protection under Section 79(2) of the KVAT Act is a question of fact which cannot be determined in this application filed under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. As per the definition given in Section 2 of the Act, Judge means not only every person who is officially designated as a Judge. Every person who is empowered by law to give in any legal proceeding a definitive judgment also comes within the purview of the definition of Judge under the Act. The definition, clearly envisages that, in any legal proceeding, a person who is empowered to give a definitive judgment which is final or becomes final, if confirmed by the appellate authority, would be denoted as a Judge. 24. The expression used in Section 2 of the Act is legal proceeding and not judicial proceeding . 25. Legal proceeding in its normal connotation can only mean a proceeding in accordance with law. There can be no doubt that assessment proceedings under the Sales Tax Act are such proceedings. The expression legal proceeding is not synonymous with judicial proceeding . Proceedings may be legal even if they are not judicial proceedings, if they are authorised by law ( See Abdul Aziz Ansari v. State of Bombay : AIR 1958 Bom 279). 26. Every judicial proceeding is a legal proceeding but not vice - versa, for the reason that there may be a 'legal procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to act judicially, his decision will be executive or administrative. Legal authority to determine questions affecting the rights of citizens does not make the determination judicial. It is the duty to act judicially which invests it with that character. What distinguishes an act judicial from administrative is therefore the duty imposed upon the authority to act judicially. To make a decision or an act judicial, the following criteria must be satisfied: 1) it is in substance a determination upon investigations of a question by the application of objective standards to facts found in the light of pre-existing legal rules; 2) it declares rights or imposes upon parties obligation affecting their civil rights; and 3) that the investigation is, subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact (See Jaswant Sugar Mills v. Lakshmi Chand : AIR 1963 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, quashed the FIR registered against him. 34. In Sankaran Pillai v. Chandran : 1991 (1) KLT 586, this Court has held that the assessing authority, under the Kerala Building Tax Act, is entitled to the protection under Section 3 of the Act. 35. Tax authorities, who are entrusted with the power to make assessment of tax, discharge quasi-judicial functions (See State of Kerala v. K.T. Shaduli : AIR 1977 SC 1627). 36. Whether the assessment be one relating to income tax, agricultural income tax or sales tax, the process of best judgment assessment is a quasi judicial process, an honest and bona fide attempt in a judicial manner to determine the tax liability of a person. And such determination must be related to the materials before the authority ( See Appukutty v. Sales Tax Officer : 1965 KLT 803). 37. Assessment proceedings have all characteristics of judicial or quasi-judicial process and would clothe the Sales tax Officer making assessment orders with judicial or quasi-judicial character ( See Ujjam Bai v. State of U.P : AIR 1962 SC 1621 ). 38. The word quasi-judicial itself necessarily implies the existence of the judicial element in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment. . ..... The assessing authorities exercise quasi judicial functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality . 44. Section 55 of the KVAT Act provides for appeal against an order of assessment. As per Clause (i) of Section 55(1) of the KVAT Act, appeal against an order passed by an authority of the rank of an Assistant Commissioner lies to the Deputy Commissioner (Appeals). In the instant case, it is alleged that the petitioner, who was in the rank of Assistant Commissioner, did not obey the written directions given by the Deputy Commissioner in the matter of assessment of tax. The petitioner, while acting as a quasi-judicial authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be possible to accept the submissions canvassed by the learned Additional Solicitor General. If the said submission is accepted, it would render the protection given to a Judge under Section 3(1) nugatory and the provision would be otiose or meaningless. It is a very well settled position in law that while interpreting the provision the words have to be interpreted in a harmonious manner and the words also have to be interpreted in a contextual manner after ascertaining the intention of the legislature. If the submission made by the Additional Solicitor General is accepted, it would mean that the legislature on the one hand had given protection to a Judge who was acting in the discharge of his official duty and, on the other hand, the same protection was taken away under Section 3(2) of the said Act. If the provision is so interpreted, it would be rendered meaningless. 34. Sub-section (1) gives complete protection to a Judge who is acting in judicial capacity. Subsection (2), however, clarifies that the power of the Central Government, State Government, Supreme Court, High Court is not taken away to institute civil, or criminal proceedings against the said Judge. It, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not in derogation of the provisions of any other law for the time being in force for protection of Judges. 52. Every error committed by a quasi judicial authority, however gross it may be, should not be attributed to improper motives. The appellate and revisional forums are provided on the pre-supposition that persons may go wrong in decision making, on facts as well as law. Even when the contest is between the Government and a private person, a quasi judicial authority entrusted with the task of decision making should feel fearless to give honest opinion while acting judicially. Even if there was possibility on a given set of facts to arrive at a different conclusion, it is no ground to indict a public servant for misconduct for taking one view. If a faulty order of a quasi judicial authority is taken as a ground for initiating criminal proceedings, the officer will be in constant fear of passing an order which is not favourable to the Government. Then he would not be able to act independently or fearlessly. Merely because the order is wrong, it does not warrant initiation of criminal proceedings against the public servant, unless he was actuated by extraneous considerations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PC Act, unless there is an allegation that he was actuated by extraneous considerations or oblique motives in passing the order. 55. This Court had occasion to make the above observations in P.Sunil Kumar v. State of Kerala (2021 (4) KLT 51 : 2021 SCC OnLine Ker 1676) while considering the question, whether a public servant, who acts as quasi judicial authority under a statute, can be held criminally liable under the P.C. Act merely for the reason that he has passed a wrong or illegal order. The above observations squarely apply to the facts of the present case also. 56. At this juncture, it is apposite to quote the following observations of Lord Denning in Sirros v. Moore: (1974) 3 WLR 459 , which read as follows: As a matter of principle the Judges of superior courts have no greater claim to immunity than the Judges of the lower courts. Every Judge of the courts of this land from the highest to the lowest should be protected to the same degree, and liable, to the same degree. If the reason underlying this immunity is to ensure that they may be free in thought and independent in judgment, it applies to every Judge, whatever his rank. Each should be protecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous considerations or that the prosecution has produced materials along with the charge-sheet to substantiate such an allegation. Learned Public Prosecutor has also no case that the prosecution has produced materials along with the charge-sheet to prove that the petitioner had obtained for himself any valuable thing or pecuniary advantage. If a public servant, acting as a quasi judicial authority under a statute, passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is allegation that the public servant was actuated by extraneous considerations or oblique motives in passing the order. 60. In Ramesh Chennithala v. State of Kerala: 2018 (4) KLJ 647 , this Court has held as follows: It appears that there is a misconception among the officers of the VACB and the Police that loss caused to the Government or the Public Exchequer by a public servant in the discharge of his official functions is a ground for proceeding against him under the P.C. Act. This misconception is the result of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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