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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 ..... 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 and 120B of the Indian Penal Code. 3. As per a letter dated 25.06.2011, the Commissioner of Commercial Taxes informed the Director, Vigilance and Anti-Corruption Bureau (VACB) that the officers of the Commercial Tax Department at Thrissur had obtained bribe and assisted the company M/s.Nano Excel Enterprises to evade sales tax during the period 2010-2011. The Director, VACB ordered to conduct a vigilance enquiry regarding the above allegations. On the basis of the findings made in the vigilance enquiry, the Director, VACB ordered to register two cases, one against the petitioner and another case against one Jayananda Kumar, who was also then the Assistant Commissioner of Commercial Taxes at Thrissur. Accordingly, a case was registered against the petitioner as VC/09/13/TSR. After completing the investigation, the Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the assessment orders dated 04.05.2011 and 31.05.2011 passed by him under the KVAT Act, refunding a total amount of Rs. 50,18,606/-, towards excess amount of tax paid by M/s. Nano Excel Enterprises. 11. Section 79 of the KVAT Act reads as follows: "79. Bar of certain proceedings.-- (1) No suit, prosecution or other proceeding shall lie against any officer or servant of the Government for any act done or purporting to be done under this Act, without the previous sanction of the Government. (2) No officer or servant of the Government shall be liable in respect of any such act in any civil or criminal proceeding, if the act was done in good faith in the course of the execution of duties or the discharge of functions imposed by or under this Act." 12. Section 79 of the KVAT Act has nexus with official acts done under that statute. The section consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Section 482 of the Code. 18. Learned counsel for the petitioner has contended that the petitioner was a public servant exercising quasi-judicial functions under the KVAT Act and the prosecution against the petitioner relates to acts done by him in the course of discharge of such functions and therefore, he is entitled to get immunity under Section 3 of the the Judges (Protection Act), 1985 (hereinafter referred to as 'the Act'). 19. As per the definition given in Section 2 of the Act, "Judge" means not only every person who is officially designated as a Judge, but also every person- (a) who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons, which body of person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings 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 proceeding' which may not be judicial at all, e.g. statutory remedies like assessment under Income Tax Act, Sales Tax Act, arbitration proceedings etc. So, the ambit of expression 'legal proceedings' is much wider than 'judicial proceedings'. (See General Officer Commanding v. C.B.I : AIR 2012 SC 1890). 27. 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, I am of the view that, 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. 28. The next question is whether passing an assessment order under the KV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 677). 31. Applying the above tests, there is little doubt that the assessing authority under the KVAT Act in assessing the tax due from a dealer has to act judicially. His decision does not depend upon his subjective satisfaction. Sections 22 to 26 of the KVAT Act deal with various modes of assessment of tax. These provisions indicate that assessment of tax can be made only after providing reasonable opportunity to the dealer or the persons concerned of being heard. The assessing authority has to apply objective standards as prescribed by law to the facts and determine the amount of tax to be paid by a dealer. The assessment orders passed by the petitioner are not orders passed by him in an administrative capacity but they are orders passed by him as a judicial authority or atleast as a quasi-judicial authority. 32. In Surendra Kumar Bhatia v. Kanhaiya Lal : AIR 2009 SC 1961, the question arose whether the Collector/Land Acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 process leading to the decision. When the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed. 39. Applying the above tests, 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 him in the course of discharge of his official or judicial duty or function. Therefore, he is entitled to get the protection under Section 3(1) of the Act. It follows that the prosecution against him, which is based on the assessment orders dated 04.05.2011 and 31.05.2011 passed by him, is not maintainable. 40. Learned Public Prosecutor would submit that the Deputy Commissioner had given directions in writing to the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, was not bound to obey such directions. Assessment of tax made by him in violation of such directions cannot make him liable for committing any offence. 45. Learned Public Prosecutor has contended that the protection given under Section 3(1) of the Act is not absolute and acts done not in good faith are not protected under that provision. 46. There is no merit in the above contention. Section 3(1) of the Act does not use the expression "good faith". The reason why judges are protected from action by the parties injured by their judicial acts, though done maliciously, is the interest of the public in securing the independence of the judges and to prevent vexatious actions from being brought against them. It is not for the sake of judges that protection is given but for the sake of public interest in securing their independence. In respect of any act as mentioned in Section 3(1) of the Act, if there is proof that the petitioner had acted in gross recklessness in the discharge of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fies 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, therefore, follows that if there is any other material which is available with the State or Central Government or higher judicial authorities which could show that the act of the Judge was not in discharge of his official duty then the protection was not available and the said Judge could be prosecuted. Therefore, if there is material to show that the judgment which was delivered was passed on extraneous considerations then on the basis of that material criminal case could be instituted against the said Judge and the said protection which is given under sub-section (1) would not be available. However, at the same time, it would not be open to entertain or continue the proceeding which is based solely on the judgment which is delivered by the Court. Thus, it will not be open for the prosecuting agency to say that the judgment which is delivered is wrong because, according to the prosecution, the judgment should have been "X" and not "Y" more particularly since against the impugned order there is a remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely because the order is wrong, it does not warrant initiation of criminal proceedings against the public servant, unless he was actuated by extraneous considerations or oblique motives. The remedy for errors committed by a quasi judicial authority is appeal or revision to the forum or authority provided under the statute for that purpose. It is in public interest that a public servant acting as quasi judicial authority should be in a position to discharge his functions with independence and without fear of consequences. The general rule applicable in the case of the issuance of a wrong order is that it is liable to be corrected in appeal or revision. A public servant acting as quasi judicial authority may become criminally liable for obtaining personal gains. But, when he is acting judicially, even if he commits an error and passes an erroneous order, he would be protected from legal action. His accountability in respect of the orders passed by him is ensured by provisions for appeal and revision. 53. What matters is not the end result of the adjudication. What is of relevance, in attributing criminal misconduct on the part of a public servant who has acted as a quasi judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself : "If I do this, shall I be liable in damages?" So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction in fact or in law but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. ... But, whatever it is the immunity of the judges - and each of them - should rest on the same principle. Not liable for acts done by them in a judicial capacity. Only liable for acting in bad faith, knowing they have no jurisdiction to do it". 57. The intention behind granting protection to a Judge under Section 3(1) of the Act is to ensure that while discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he discharge of his official functions is a ground for proceeding against him under the P.C. Act. This misconception is the result of the wrong understanding of the scope and object of the Prevention of Corruption Act. ... ......... There can be instances where some benefit or advantage is caused to a person, or such benefit or advantage is derived by a person by the wrongful acts of a public servant or due to his carelessness in the discharge of his duty or due to malfeasance. In such cases, there may be corresponding loss to the Government or the Public Exchequer also. What matters in such cases, is not whether the public servant has just caused loss to the Government or the Public Exchequer, but whether there has been any vicious link or nexus between him and the person benefited .... . Just because some loss was caused to the Government or the Public Exchequer or to any public sector undertaking or corporation or public body, by the discharge of functions of a public servant, he cannot be prosecuted under the P.C.Act. In short, mere instances of malfeasance or wrong administration or wrong discharge of functions or dereliction of duty will not cause a prosecution under the P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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