Vaidya, J.
1. The above appeal is filed by the State, against the order of acquittal passed by the learned Special Judge, Thana, in Special Case No. 7 of 1971 of the charge under Section 5(1)(d) read with Section 5(2) and (3A) of the Prevention of Corruption Act, 1947.
2. The prosecution case briefly stated was that the accused was the Additional Mamlatdar and Agricultural Lands Tribunal, functioning as such under the Bombay Tenancy and Agricultural Lands Act, 1948 between May 24, 1964 to December 14, 1966 and also from December 15, 1966 to October 16, 1967 at Palghar, as a Mamlatdar in the latter period and as an Additional Mamlatdar in the earlier period.
3. One Dattatraya Vishnu Kirtane (p.w. 10) owned grass lands bearing survey Nos. 830/8, 831/4, 831/11 and 922 and some land out of hissa No. 823 and paddy lands bearing survey Nos. 418 and 389/4 situate in Vabulsor, a hamlet of Mahim village in Palghar taluka. The grass lands were entered in the name of one Kanta Girdhari Tiwari as a protected tenant in the record of rights. After Kanta's death in 1949, his name continued as a tenant cultivating the lands upto 1953-1954. The name of his brother Ramnath Tiwari came to be entered upto 1961-1962 as a tenant. From 1962-1963 and onwards the owner Kirtane was shown as cultivating the lands personally.
4. The prosecution contended that the accused by corrupt or illegal means or by otherwise abusing his position as a public servant, obtained for his sons an agreement for purchasing the land and thereby committed the offence under Section 5(1)(d) read with Section 5(2) and (3A) of the Prevention of Corruption Act. The prosecution relied in this connection on the three proceedings; one an application (exh. 25) made by Kirtane under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 for a declaration that Kanta Girdhari Tiwari was not the protected tenant of the lands at Mahim and that Kanta Girdhari Tiwari died leaving behind no heir and that the name of Kanta Girdhari Tiwari entered in the record of rights as a protected tenant should be deleted.
5. The misconduct alleged in this connection was, that even though the accused knew that Kanta Girdhari was dead and his younger brother Ramnath appeared through his constituted attorney Raghunath (p.w. 7), the accused asked his peon Janu Hari to call Kanta Girdhari to make a show that Kanta was absent and then pronounced judgment on October 31, 1966 declaring that Kanta Girdhari was not the tenant of the lands of Kirtane and further directed that the name of Kanta Girdhari should be deleted from the record of rights as a tenant. Although it was not disputed that Raghunath himself and Ramnath were not present on October 31, 1966, it was alleged that the accused ignored their appearance and deliberately asked his peon to call Kanta.
6. The judgment in that case is at exh. 29. It is clear from that judgment that the accused held that Kanta could not be and was not the tenant protected under the Bombay Tenancy and Agricultural Lands Act, 1948 because the Act did not apply to the lands in dispute as they were merely lands in which grass grew naturally. It was not disputed that the view which the accused took was consistent with the decision of a division Bench of this Court in Raghunath Jayaram v. Vithu Rama (1962) Special Civil Application No. 944 of 1961.
7. The prosecution alleged however that although the judgment may be consistent with law, it was misconduct on the part of the accused to have directed the peon to call out Kanta's name though he was, aware on October 31, 1966 that Kanta was dead.
8. It was also further alleged that in this connection a letter (exh. 26) was issued by the accused to the village Talathi on May 9, 1966 giving directions to the Talathi to make the panchanamas, one relating to the fact that Kanta died leaving behind no heir and another to the effect that the lands were grass lands, and to delete the name of Kanta, even before he had delivered the judgment, relying on the allegations in the application (exh. 25) made by Kirtane.
9. It is the prosecution case that as a judicial officer the accused ought not to have issued such directions before recording the evidence and before giving an opportunity to the other side of being heard.
10. The second proceedings relied upon by the prosecution were the proceedings under Section 32G of the Bombay Tenancy and Agricultural Lands Act, started after the earlier proceeding but which came to be decided earlier because notice was issued to Kanta fixing the date of hearing on September 30, 1966. The notice was returned unserved with the report of the Talathi stating that Kanta died leaving behind no heir. The accused held that the proceedings should be dropped as the provisions of the Bombay Tenancy and Agricultural Lands Act, did not apply to the lands in dispute which were grass lands growing grass naturally.
11. The prosecution contended that the accused misconducted himself in issuing the notice to Kanta Girdhari though he had knowledge that he was dead and merely relying on the unchallenged testimony of Kirtane he came to the conclusion that because Ramnath had become separate during the life time of Kanta and Ramnath himself did not appear though he was duly served with the notice, he could not claim any interest as a tenant under the Bombay Tenancy and Agricultural Lands Act, 1948, because the lands were growing grass naturally.
12. The third set of proceedings arose out of a reference under Section 85A of the Bombay Tenancy and Agricultural Lands Act, in Civil Suit No. 69 of 1966 filed by Kirtane against Ramnath and his two servants for possession of the grass lands in which Ramnath who was defendant No. 1 raised a plea that he was a tenant in the suit lands. The civil Court made a reference to the Mamlatdar, Palghar which was numbered as Tenancy Reference No. 12 of 1967. It was fixed for hearing on June 10, 1967.
13. On that day the aforesaid Raghunath, the constituted attorney of Ramnath made an application (exh. 21) that the accused should transfer the case to some other Court in the interest of justice as the applicant Raghunath learnt that the sons of the accused were to purchase the lands. That application was opposed by the applicant's advocate Shri Adhiya.
14. The objection read thus:
I oppose this application. The defendant Ramnath is absent. The applicant has not produced any authorisation or power of attorney to present this application. The statements made in the application are false and vexatious. The applicant merely wants to delay the matter. The applicant cannot ask for the transfer of the case. The application to be rejected.
15. On that application the accused passed the following order:
I agree with the above remarks of the advocate and reject the application.
Thereafter, the accused recorded the statements of Kirtane and all the defendants. Raghunath refused to lead any evidence before the accused. The accused delivered judgment then and there holding that as the suit lands were growing grass naturally the defendants could not claim the protection of the Bombay Tenancy and Agricultural Lands Act.
16. The allegation of the prosecution in connection with this proceeding was that the accused instead of staying the proceeding and postponing the matter on exh. 21, the application for transfer, misconducted himself in deciding the matter then and there.
17. The prosecution also relied on some complaints against the accused made to the superior authorities as a result of which departmental enquiry was ordered against him. In the course of the investigation preceding that enquiry, police inspector Patki (p.w. 11) who was then attached to Anti Corruption Bureau Thana, recorded statements of some witnesses.
18. On February 22, 1971 police inspector Khamkar (p.w. 12) received the enquiry papers from the Revenue and Forests Department of the State Government with a direction that he should lodge a complaint against the accused under Section 5(1)(d) of the Prevention of Corruption Act. On the receipt of the enquiry papers, police inspector Khamkar called for the above mentioned three disputed proceedings and then lodged a first information report (exh. 58) to Palghar police station on April 21, 1971.
19. He then applied and obtained permission of the Judicial Magistrate, First Class, Palghar to investigate in the matter. After the permission was granted he recorded the statements of material witnesses and filed a chargesheet against the accused in the Court of the Special Judge, Thana on November 28, 1971, on the basis of what was stated above, in respect of the three disputed proceedings, completely ignoring Section 85(2) of the Bombay Tenancy and Agricultural Lands Act, which runs as follows:
No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
20. Even the learned special Judge's attention was not drawn to the said section and he first framed a charge as per exh. 8 and then framed an amended charge as per exh. 63, relating to those proceedings which were in fact patently inconsistent with the immunity given to the orders and proceedings under the Bombay Tenancy and Agricultural Lands Act, under Section 85(2).
21. The accused pleaded not guilty to the charge and relied on Section 77 of the Indian Penal Code, which runs as follows:
Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
22. The prosecution led evidence of a so called agreement at exh. 16 dated April 13, 1966 purported to have been executed by Kirtane and his, son in favour of two sons of the accused without making any attempt to explain in what way the accused was connected with the custody of this agreement when it was taken by the police from Kirtane. The agreement was not signed by the accused or by his sons. The prosecution relied upon the evidence of the attesting witnesses Vengurlekar (p.w. 1) and Lokhande (p.w. 3) and the scribe Sarmalkar (p.w. 2) who stated that the agreement was executed by Kirtane at the instance of the accused. The other evidence consisted of the formal witnesses who have proved the tenancy proceedings and the police officers who investigated.
23. There was, however, nothing in the evidence to establish that the accused by corrupt or illegal means or by otherwise abusing his position as a public servant, obtained for himself or for any other person any valuable thing or pecuniary advantage as required by Section 5(1)(d) of the Prevention of Corruption Act. In para. 38 of the judgment of the lower Court it is clearly mentioned that
even the Assistant Public Prosecutor had conceded that there was no evidence to justify conclusion that the accused abused his position as a public servant in deciding the above tenancy proceedings. But he sought to make out a new case in the course of his arguments, stating that the accused abused his position as a public servant while entering into the agreement of sale with Kirtane and in getting the agreement of sale (exh. 16) executed though it was nowhere alleged in the chargesheet or the complaint (exh. 58) that the accused had taken the advantage by getting the agreement executed.
24. Curiously as a result of ignoring the provisions of Section 85(2) of the Bombay Tenancy and Agricultural Lands Act, the learned special Judge considered the merits of the matter under the tenancy proceedings and held that though the orders passed by the accused were consistent with the aforesaid judgment of the division Bench of this Court, the evidence led by the prosecution established that the accused got the agreement executed as stated by the prosecution witnesses.
25. Kirtane himself (p.w. 10) turned hostile to the prosecution by denying what he had stated before the police inspector Patki. Raghunath had in fact purchased the property from Kirtane for the very price which was mentioned in the so called agreement exh. 16, the learned Judge came to the conclusion that the accused had taken no undue advantage by abusing his position. In his statement the accused denied his connection with the so called agreement at exh. 16 and contended that he was acting judicially when he conducted the three tenancy proceedings referred to above and was immune from prosecution under Section 77 of the Indian Penal Code.
26. The learned special Judge in a somewhat inconsistent and curious judgment while holding that the agreement was not referred to in the chargesheet or the complaint, came to the conclusion that the agreement (exh. 16) was executed at the instance of the accused by Kirtane in the presence of Vengurlekar and Lokhande and it was written by Sarmalkar as stated by the said prosecution witnesses, though he said that Kirtane had condemned himself and he was an unreliable witness.
27. According to the learned special Judge notwithstanding this there was no undue advantage taken by the accused as his judgments were consistent with the decision of this Court, and the agreement was for a price which was found to be fair and reasonable with regard to the purchase of these very lands by Raghunath.
28. The learned special Judge, however, held that the accused was not entitled to the protection of Section 77 of the Indian Penal Code and observed as follows in para. 40 of the judgment:
Looking to the plain language of the section, it is clear that the special protection conferred is not unbounded and unqualified. Here what is to be decided is not whether the accused committed an offence in or while deciding the Tenancy matters but whether the accused abused his position as a public servant and made any attempt to gain pecuniary advantage either for himself or for his sons. It is alleged against the accused that he attempted to gain pecuniary advantage either for himself or for his sons by abusing his position as a public servant and the prosecution sought to rely on the decisions given by the accused to show that he abused his position as a public servant. I think that this Court is competent to decide the conduct of the accused in or while deciding the tenancy matters in order to decide whether the charge is established against the accused. If a Judge abuses his authority reposed in him by law, in order to gratify his malice, or promote his private interests or ambition, then Section 77 is no bar for his prosecution. Here the accused is said to have acted with corrupt motive and partiality to gain pecuniary advantage for himself or his sons. That is why it is said that he abused his position as a public servant. This Court is competent to inquire the charge whether the accused is guilty under the provisions of Prevention of Corruption Act. To repeat case again, the accused is said to have acted with malice as he was personally interested in the litigation. It cannot, in my opinion, be maintained that this Court cannot examine the evidence on this aspect of the case and that the accused cannot be prosecuted and charged for abusing his position as a public servant in deciding the tenancy matters in favour of Shri Kirtane. I am, therefore, unable to agree with Shri Ovalekar that Section 77 bars the prosecution of the accused for the charge alleged against him.
29. Nevertheless the learned special Judge acquitted the accused of the offences with which he was charged, as he was of the view that the agreement which was relied upon by the public prosecutor at the end of the case was not the subject-matter of the complaint or the charge-sheet.
30. The order of acquittal was challenged by the State by filing the above criminal appeal in this Court on June 11, 1973. As the office of this Court raised an objection with regard to the delay of 317 days, having regard to the period of limitation laid down under Article 114(a) of the Limitation Act, 1963, the State filed an application being Criminal Application No. 577 of 1973 for condonation of delay, stating that the copy of the judgment was applied for by the public prosecutor on April 11, 1972 after the judgment was delivered on April 5, 1972 and the copy was ready on May 5, 1972.
31. The delay was explained by pointing out that the public prosecutor by his letter dated June 3, 1972 addressed to the District Magistrate, Thana, recommended an appeal against the acquittal stating that the limitation for preferring the appeal would expire under Section 114(a) of the Limitation Act on June 24, 1972 and the last date after adding the time required for obtaining the certified copy of the judgment for filing the appeal would be July 10, 1972. The clerk in the office of the District Magistrate who was dealing with such matters was on leave in the month of June 1972 and there was no substitute looking after this work.
32. In July 1972, one M.D. Patkar was appointed as a clerk in the office of the District Magistrate and was assigned the work of looking after these matters. Patkar prepared the necessary papers and placed them before the Superintendent on July 12, 1972. The District Magistrate signed the letter on July 14, 1972 and forwarded the same to the public prosecutor on the same day. Patkar did not send any letter to the Law and Judiciary Department. He thought that necessary letter would be sent by the public prosecutor to the Law and Judiciary Department. In these circumstances the appeal remained unfiled.
33. In the last week of January 1973, it was realised by the Revenue and Forest Department at Sachivalaya that no proposal had been received by the Law and Judiciary Department for preferring an appeal against the acquittal of the accused, and that the Section Officer in the Revenue and Forest Department by his letter dated January 30, 1973 requested the District Magistrate to furnish information about the number and date of reference made to the Remembrancer of Legal Affairs in the matter, the case number and date of judgment.
34. On receipt of this letter the District Magistrate sought information from the public prosecutor as to whether steps were taken to prefer an appeal against an acquittal. The public prosecutor informed the District Magistrate in the last week of April 1973 that steps in that regard had to be taken by the District Magistrate and for that he had forwarded his proposal with requisite copies of the judgment on June 3, 1972. Thereafter the District Magistrate by his letter dated May 30, 1973 requested to Law and Judiciary Department to prefer an appeal against the acquittal.
35. Immediately thereafter it was processed on June 2, 1973 and a decision was taken to prefer an appeal against acquittal. A resolution in that regard was passed on June 6, 1973. It is in these circumstances that the appeal came to be filed after a delay of 317 days on June 11, 1973. The averments made in the application were solemnly affirmed by Patkar, clerk in the office of the District Magistrate, Thana.
36. It appears that the criminal appeal and the application for condonation of delay were for hearing for admission before the Court on the same day, i.e. July 17, 1973. The Court consisting of Deshpande and Lentin JJ., passed an order on the appeal admitting it and passed an order on the Criminal Application 'delay condoned.'
37. Mr. Walawalkar, the learned Counsel appearing for the accused submitted that as the delay of 317 days was not honestly and fairly explained in the condonation application and as the order condoning the delay was passed ex parte, the accused was entitled to challenge the condonation of delay and pointed out that there is no justification whatsoever for the delay in riling the appeal. Mr. Walawalkar relied upon the affidavit of his client dated September 22, 1976 filed in this Court on September 28, 1976.
38. The affidavit in rejoinder is filed today of one Shetye, Leave Reserve Tahsildar, Thana and it is dated November 2, 1976, explaining the discrepancies pointed out by the accused as due to misunderstanding between two officers averring as follows:.I say that Mr. Patkar was completely a new hand and had no experience about handling such matters. As stated hereinabove cyclostyled forms were being used by the office of the District Magistrate Thana, for informing the Public Prosecutors regarding the matters in which that office recommends or not for filing the appeals in criminal matters. Mr. Patkar accordingly sent the reply to the Assistant Public Prosecutor, Thana on 14.7 1972 without endorsing a copy of the said letter to the Law & Judiciary Department for taking further action in the matter. I deny that the statements made in the said applications are deliberately weighed and misleading and are recommended to confuse this Hon'ble Court as alleged. I deny that the petitioner has deliberately omitted to give the name of the said clerk, the date on which he went on leave, the number of days on which he was on leave and the date on which he resumed leave as alleged. I submit that it was sufficient to mention that after the clerk had gone on leave in June 1972 till the appointment of Mr. Patkar there was no clerk dealing with the section concerned. I submit that the delay has been caused in this case on account of the misunderstanding between the two officers as stated hereinabove and. in the said application.
39. Mr. Walawalkar submitted that the explanation which is now being given by the Tahsildar is no explanation at all, having regard to the serious allegations which the accused has made in his affidavit in reply to Criminal Application. No. 577 of 1973, pointing out how Government kept his application for voluntary retirement pending and how he was harassed by an unjustified prosecution and how after he gave a notice of his suit under Section 80 of the Civil Procedure Code, to the Government, the appeal has been filed in this Court maliciously with a. view to harass the accused.
40. It is not necessary to take into consideration all the allegations which are made by the accused in his affidavit in reply because what we have to decide is whether the State had sufficient cause for not filing the appeal without the delay of 317 days. We have perused the affidavit filed on behalf of the State and we find that the reasons given by the State for condoning the delay after obtaining the copy of the judgment on May 5, 1972 when it was ready are not at all satisfactory.
41. It is difficult to believe that just because the clerk usually handling the matter is, on leave, another clerk is not aware of the practice of sending letters to the public prosecutor from the office of the District Magistrate along with the letters to the Law and Judiciary Department of the Government of Maharashtra; and it is enough for condoning the delay of 317 days. Mr. Solkar could not dispute that a large number of appeals are filed in this Court from the decisions of the Thana Court; and it is not a matter which can be easily believed when it is said that just: because one new clerk was appointed on the table, for 317 days the office of the District Magistrate would not be in a position to move the Law and Judiciary Department and file the appeal in time.
42. There is much to be said in favour of the contention of the accused that it was only after the accused served a notice under Section 80, on the Government that the Government which was perhaps rightly reluctant to file an appeal, filed the present appeal in this Court so that the matter will be kept pending as it has been; pending for more than three years now.
43. It is the duty of the State to satisfy the Court as to how every day of 317 days delay occurred for a good cause or a sufficient cause within the meaning of Section 5 of the Limitation Act. Mr. Walawalkar is quite right in his submission that the absence of the usual clerk and the appointment of a new clerk cannot explain the delay of 317 days in this case.
44. It is true that the delay was condoned ex parte when the appeal was admitted as stated above by Deshpande and Lentin JJ. But it is not disputed by Mr. Solkar, the learned public prosecutor that as it was an ex parte order the accused is entitled to urge before this Court when he appeared that the delay ought not to have been condoned. Mr. Walawalkar, the learned Counsel for the accused, has referred to a large number of authorities including the decision of the Privy Council in Krishnasami Pandikondar v. Ramasami Chettiar , which was from a civil case, and the Privy Council observed:
At the hearing by a Division Bench of the Madras High Court of an appeal presented after the period allowed by the Indian Limitation Act, 1908, but which has been admitted under Section 5 of that Act by an order made ex parte by a single judge, there is jurisdiction to dismiss the appeal upon the ground that sufficient cause for the delay has not been shown.
The above procedure is in accordance with the practice of the Madras and other High Courts, but it is urgently expedient that procedure should be adopted which will secure that any question of limitation affecting the competence of the appeal should be determined finally at the stage of its admittance.
45. Sir Lawrence Jenkins observed in the course of this judgment (p. 28):
But while this procedure may have the sanction of usage it is manifestly open to grave objection. It may, as in this case, lead to a needless expenditure of money and an unprofitable waste of time, and thus create elements of considerable embarrassment when the Court comes to decide on the question of delay. Their Lordships therefore desire to impress on the Courts in India the urgent expediency of adopting in place of this practice a procedure which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the competence of the appeal.
46. Mr. Walawalkar also relied on the decision of the Privy Council in Sunderbai v. Collector of Belgaum (1918) L.R. 46 IndAp 15 : 21 Bom. L.R. 1148, as indicating the correct procedure to be followed as follows (p. 22):
It appears to their Lordships that when a memorandum of appeal is presented beyond the prescribed period of limitation the proper order which a judge should endorse upon it would be to the following effect : 'Presented for admission on the (date when the memorandum of appeal was handed into the office of his court). Let notice go to the respondents (date of the order)'.
47. Mr. Walawalkar also referred to a decision in Emperor v. Laxman : (1907)9BOMLR895 and several unreported judgments of this Court which show that it is settled law that when a delay in filing the appeal is condoned ex parte the order is liable to be reviewed at the instance of the respondent who can appear at the hearing and contend notwithstanding the order that the appeal was barred by time.
48. It is unnecessary to discuss these cases as the position in law is not challenged, by Mr. Solkar, learned public prosecutor and the law appears to us to be well setted, that an ex parte order can be always reconsidered when the party against whom the order is passed appears before the Court and asks the Court to reconsider it. In the circumstances the appeal filed by the State is liable to be dismissed as time barred as, the State has not shown sufficient cause for the delay of 317 days in filing the above appeal.
49. This would have been enough to dispose of this appeal. But having regard to the peculiar nature of the prosecution and having also regard to the importance of the principles involved in this case regarding the orders passed by authorities-like the authorities under the Bombay Tenancy and Agricultural Lands Act and the findings recorded by the learned special Judge in respect of the plea under Section 77 of the Indian Penal Code, we have felt it necessary to deal with those points and for this purpose also to consider whether the learned special Judge was right in coming to the conclusion that the agreement (exh. 16) was executed at the instance of the accused. In other words, in the circumstances of the present case, although the appeal is liable to be dismissed as time barred, we proceed to consider the merits.
50. As already stated above, we find that the learned special Judge has recorded somewhat inconsistent findings inasmuch as he observed that any reference to the agreement exh. 16, as the basis of the misconduct of the accused under Section 5(1)(d) was extraneous to the charge and the complaint and at the same time he proceeded to believe the prosecution witnesses and held that it was at the instance of the accused that the agreement was executed. In our opinion, such inconsistent findings ought not to have been recorded by the learned Judge. We have looked to the charge at exh. 8 and also to the charge at exh. 63 and we find that in the latter charge he has referred to an agreement dated April 13, 1966 though in the charge-sheet and in the complaint there was no such reference. It must be noted that in a criminal trial the accused is called upon to meet a specific charge, and not varying charge, variable according to the evidence and arguments on behalf of the State.
51. It was not also correct on the part of the learned special Judge to have believed Sarmalkar, the scribe and the two attesting witnesses Vengurlekar and Lokhande as independent persons when they were concerned with the making of the agreement; and they were bound to support the agreement notwithstanding the absence of any signature on the part of the sons of the accused though their names are mentioned in the agreement as parties to the agreement particularly when the main executant Kirtane did not support the prosecution case; and the agreement was not relied upon by the prosecution as the basis of the charge either in the complaint originally filed or the charge-sheet filed by the police inspector as stated by the learned special Judge.
52. Kirtane has stated in his evidence that he produced the document before police inspector Patki along with the endorsement of the cancellation of the agreement made on June 29, 1966. He also claimed to have been in custody of the agreement from April 13, 1966 till he delivered the custody of the document to police inspector Patki. He admitted that he did not inform the sons of the accused or the accused about the cancellation of the agreement of sale. When he stated this, the learned public prosecutor asked the permission to cross-examine him and thereafter he was cross-examined with respect to his statement which he had made before P.I. Khamkar and P.I. Patki and the learned Judge dealt with him as an unreliable witness.
53. Having regard to the evidence of Kirtane and also having regard to the absence of the evidence to show that this document was at any time in the custody of the accused or his sons, we find it difficult to agree with the learned special Judge, relying merely on the evidence of the attesting witnesses and the scribe that the accused was proved to be involved in the execution of the agreement beyond reasonable doubt. In a criminal trial even under the Prevention of Corruption Act, the burden of proof is on the prosecution and in the absence of any evidence independent of the attesting witnesses and the scribe to show that the accused or his sons had at any time the custody of this agreement or had anything to do with this agreement, it was not safe to rely on their testimony treating them as independent witnesses.
54. Moreover, as the learned Judge himself has found that there was nothing unconscionable or unfair about that agreement and although it may have been improper for the accused to have got such an agreement, assuming for the sake of argument that he had got it executed, there is nothing to show that he had resorted to any illegal or corrupt means for this purpose or had abused his position within the meaning of Section 5(1)(d) of the Prevention of Corruption Act, 1947.
55. Further as already pointed out the attention of the learned special Judge was not drawn to Section 85(2) of the Bombay Tenancy and Agricultural Lands Act, which bars the jurisdiction of even a criminal Court from questioning the orders passed by an officer under that Act. It must be noted that although the officers may be belonging to an Executive Department they are acting judicially in the exercise of their function when deciding the matters under the Act. Section 80, in terms lays down that all inquiries and proceedings before the Mamlatdar, the Tribunal, the Collector and the Maharashtra Revenue Tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code. Section 87 further protects these officers by laying down that no suit or other legal proceeding shall lie against any person in respect of anything which is in good faith done or intended to be done under this Act.
56. Having regard to these provisions, which have been completely ignored in the lower Court, we are constrained to observe that if these provisions of the Bombay Tenancy and Agricultural Lands Act were perused by the learned special Judge, by the prosecutor, or the Anti Corruption Department the Government would have been saved from the charge of malice, and harassment which the accused is making against them with some justification.
57. The immunity which is given to the officers deciding matters under the Bombay Tenancy and Agricultural Lands Act, 1948, is given to them as they do judicial duties and every person acting judicially is expected to decide honestly, independently, fearlessly and in accordance with law and facts as he interprets them.
58. In this connection it may be worthwhile to quote the following observations of Lord Denning in Sirros v. Moore [1974] 3 W.L.R. 459 :
In this new age I would take my stand on this : 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 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. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.
59. It is these principles which are embodied in Section 87 of the Bombay Tenancy and Agricultural Lands Act, 1948. The said principles are also involved in Section 77 of the Indian Penal Code which was, expressly pleaded by the accused in the lower Court but which appear to have been misunderstood by the learned special Judge as he appears to have thought that he had jurisdiction notwithstanding Section 77, to enquire into the allegations made against a person acting judicially merely when there is an allegation that a Judge abused his authority reposed in him by law, in order to gratify his malice, or promote his private interests or ambition.
60. In the first place we do not find any such allegations made in the charge-sheet or the complaint. What was alleged against the accused has been set out above. It is clear that all that has been said was that the accused was interested in the purchase of the land after declaring the lands to be not protected under the Bombay Tenancy and Agricultural Lands Act. Following a division Bench decision of this Court, he had proceeded to deal with the matter under Section 32G and the reference under Section 85A against a dead person Kanta Tiwari. The learned special Judge himself has rightly held that the mere fact that the accused asked his peon to call out deceased's name cannot be considered to be a mistake on the part of the accused, and similarly the mere fact that 32G proceedings were decided after a report was called for by the officer was not enough to hold that he had committed any misconduct.
61. In our opinion, this probe into the conduct of the accused itself is barred under Section 85(2) of the Bombay Tenancy and Agricultural Lands Act. It may be that under Section 77 of the Indian Penal Code, the Court has to go into the question to find out whether the plea of the accused under Section 77 was available to him and for that purpose to examine his conduct. That, however, is totally barred under Section 85(2). The bar of the criminal Court's jurisdiction under Section 85(2), would be idle unless we uphold the immunity of the authorities under the Bombay Tenancy and Agricultural Lands Act, 1948 acting judicially.
62. It cannot be disputed that the accused was a 'Judge' within the meaning of the definition of the word in Section 19 of the Indian Penal Code. It cannot also be disputed having regard to the second clause of the definition of 'offence' in Section 40 of the Indian Penal Code that Section 77 can be pleaded even in respect of the offences under the Prevention of Corruption Act, 1947. In the circumstances, although the learned special Judge may be right in holding that Section 77 did not bar the jurisdiction of the criminal Court, Section 77 did give immunity to the accused and merely because some persons make some allegations against him, it cannot be held that he is liable for anything that he did in respect of the three tenancy proceedings mentioned above.
63. We are, therefore, inclined to hold that the prosecution was not maintainable against the accused in view of Section 85(2) of the Bombay Tenancy and Agricultural Lands Act, and in any event the accused was fully protected under Section 77 of the Indian Penal Code.
64. In the result, Criminal Appeal No. 769 of 1973 is dismissed not only on the ground that the same is barred by limitation but also on merits, for the reasons stated above. The order of acquittal of the accused under Section 5(1)(d) read with Section 5(2) and (3A) of the Prevention of Corruption Act, is hereby affirmed.