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TMI Blog2021 (4) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... It was revealed during the surprise check that no proper follow up action was taken in the Taluk Office, Udumbanchola till August, 2010 with regard to the illegal occupation of government land in Sy. No. 87/1 of Chinnakanal Village and the unauthorized construction of buildings therein by M/s. Joys Group (A3) which had been detected by the Deputy Tahsildar, Task Force-III in March, 2008. On the basis of a court direction, Sri V.R. Mohanan Pillai (A1), who was then the Tahsildar, Udumbanchola, had issued proceedings dated 11.08.2011, declaring that the land having an extent of 3.41 acres, including part of the land covered by patta No. 71/72 (2.14 acres), was in the unauthorised possession of M/s. Joys Group and directing the Village Officer, Chinnakanal to take steps for resumption of the land. There were two major procedural irregularities in issuing this order. The first irregularity was, instead of conducting the hearing personally as prescribed by the Kerala Land Conservancy Act, the Tahsildar (A1) entrusted that task to the Head Clerk. The second irregularity was that, the first accused, in paragraph 8 of his order clearly stated that the party was free to avail the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions against the petitioner in Annexure-1 F.I.R. are accepted as true, it would not attract any offence against him. 9 . The circumstances which led to the issuing of Annexure-VI order are narrated in the statement filed by the investigating officer. The only additional fact mentioned in that statement is that the petitioner issued an order, correcting certain mistakes contained in Annexure-VI order and that such correction was made by him without the concurrence of the District Collector. Inspite of the investigation conducted for about six years, the statement filed by the investigating officer does not reveal that any evidence has been collected against the petitioner to prove the offences alleged against him. 10. Learned Public Prosecutor submitted that the investigation of the case has been almost completed. But, whether any evidence against the petitioner could be collected or not during the investigation conducted over a period of more than six years, remains unanswered. Learned Public Prosecutor has also not made any submissions to controvert the contentions raised by the learned counsel for the petitioner. 11. Before proceeding further, it is necessary to narrate the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve that the patta issued in L.A. No. 71/72 was not a genuine document. Ultimately, as per Annexure-VI order, the petitioner came to the conclusion that the patta in L.A. No. 71/72 appeared to be a genuine document issued as per law until documentary evidence could be traced out against it. A direction was also given to the Head Clerk concerned to find out documentary evidence, if any, to prove that the patta issued in L.A. No. 71/72 was not a genuine document. 16. Annexure-VII is the copy of the order dated 28.06.2014 passed by the petitioner, making some corrections in Annexure-VI order. On a perusal of Annexure-VII order, it is seen that the corrections made as per that order were only with regard to some grammatical and spelling mistakes and modification of the language used in one or two sentences in Annexure-VI order. The ultimate conclusion reached by the petitioner in Annexure-VI order was not in any way corrected or changed as per Annexure-VII order. 17. However, the District Collector suo motu passed Annexure-VIII order dated 16.07.2014, cancelling Annexure-VII order on the ground that the corrections were made by the petitioner without the concurrence of any superior of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What shall be the criteria to decide whether a decision is judicial or not? In Jaswant Sugar Mills Limited v. Lakshmi Chand : AIR 1963 SC 677, the Supreme Court has held as follows: "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". 23. Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner that he deliberately committed any misconduct for extraneous considerations. No material disclosing such act on his part has been unearthed during the investigation conducted for more than six years. If the petitioner has passed a wrong order, it could be corrected by the appellate or revisional authority. Criminal proceedings cannot be initiated against a public servant under the P.C. Act merely for passing a wrong order, without any material to demonstrate that such order was deliberately passed by him for extraneous considerations or on oblique motives. There shall be legally admissible materials collected during the investigation to demonstrate such oblique motives or extraneous considerations. The investigating officer has got no case that any such material has been collected during the investigation of the case. 27. 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 have been 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 qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there are clear allegations of misconduct or extraneous influences or gratification of any kind, criminal proceedings cannot be initiated merely on the basis that a wrong order has been passed by the public servant or merely on the ground that the order is incorrect. Such decisions cannot ipso facto result in prosecution, unless the mental element of dishonesty, to cause advantage of an unwarranted variety to another is apparent. 29. 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 an allegation that he was actuated by extraneous considerations or oblique motives in passing the order. 30. A bare perusal of Section 13(1)(d)(ii) of the P.C. Act would reveal that a public servant can be prosecuted under that provision, only if he has abused his position as public servant and obtained for himself or for any other person any valuable thing or pecuniary advantage. There is absolutely no whisper in Annexure-I F.I.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leads to the conclusion that Annexure-I F.I.R. does not contain allegations against the petitioner which would attract the offences alleged against him. Though investigation has been conducted since the year 2014, the investigating agency could not unearth any material as against the petitioner. 36. The salutary principle laid down by the Privy Council in King Emperor v. Khwaja Nazir Ahmed: AIR 1945 PC 18 and reiterated by the Supreme Court very often is that, in normal circumstances, the court shall not thwart any investigation into an offence but allow it to have its own course under the provisions of the Code. The power of the police to investigate cases where they suspect or even have reasons to suspect the commission of a cognizable offence is unfettered. However, the Privy Council has also made a note of caution that "if no cognizable offence is disclosed and still more, if no offence of any kind is disclosed, the police would have no authority to undertake an investigation". 37. The condition precedent to the commencement of investigation is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. The right of the police to conduct investi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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