C.V. Jani, J.
1. These 12 revision application filed by the State of Gujarat against the same opponent, namely, Bansidhar Narmadashankar Jani serving as Agricultural Assistant in the Land Conservation Department, arise from identical orders of discharge issued by the learned Chief Judicial Magistrate, Kutch at Bhuj, in Criminal Cases Nos. 3633, 3634, 4117, 4118, 4119, 4120, 4121, 4122, 4123, 4124, 4125, and 4126 all of 1992, respectively. The opponent is served but he has not appeared. As the opponent has been discharged on the ground of limitation in all the criminal cases, all the 12 matters are being heard and decided together at the request of the learned Public Prosecutor.
2. The opponent who was serving as Agricultural Assistant in the Land Conservation Department was charged for the committing offences punishable under Sections 409, 420, 465, 467 and 468 of I.P.C. After the charge was framed, the opponent submitted applications in the aforesaid 12 cases under Section 239 of the Criminal Procedure Code for discharge by contending that at the relevant time as an Agricultural Assistant in the Soil Conservation Department, he had acted under the Provisions of Section 23(1) of the Land Improvement Schemes Act, 1944 (hereinafter referred to as the 'said Act') and so he could not be prosecuted after six months from the date of the alleged offence. The offences related to the period between 16-6-1974 and 19-10-1974 but the opponent was not prosecuted within six months, thereafter, as provided Sub-section (2) of Section 23 of the said Act. The learned Chief Judicial Magistrate accepted this contention and held that the opponent should not be prosecuted in respect of anything done under the Act after six months from the date of the alleged offence. The opponent was accordingly discharged by the learned Chief Judicial Magistrate by the order dated 29-1-1994. These orders have been brought under challenge in these revision applications.
3. The relevant Section 23 of the Act reads as under:
Protection of persons acting in good faith and limitation of suits and prosecutions.-(1) No suit, prosecution or other legal proceedings shall be instituted against any public servant or person duly authorised under this Act in respect of anything in good faith done or intended to be done under this Act or the rules made thereunder.
(2) No suit or prosecution shall be instituted against any public servant or person duly authorised under this Act in respect of anything done or intended to be done, under this Act, unless the suit or prosecution has been instituted within six months from the date of the act Complained of.
4. Sub-section (2) clearly evisages that a public servant cannot be prosecuted in respect of anything done under the Act after six months from the date of the act complined of Sub-section (1) also envisages that prosecution cannot be instituted against any public servant in respect of anything done in good faith or intended to be done under the Act. So protection under Section 23 would be available if two pre-requisite conditions are satisfied, namely, (i) that the act alleged to be an offence was done by the public servant in good faith and (ii) the said act was done under the Act, namely, in discharge of me duties and in exercise of the powers conferred by the Act. The functions indicated in the Act would not obviously involve commission of offences of breach of trust, cheating, forgery, etc., which are punishable under Sections 409, 420, 465,467 and 468 of I.P.C. Hence the period of limitation which would be applicable in such cases would be the period as prescribed in Sub-section (2) of Section 468 of Criminal Procedure Code, and not the period prescribed in Section 23(2) of the Act. The learned Chief Judicial Magistrate, therefore, clearly, committed an error of law in construing that the prosecution of the opponent was barred by limitation.
5. If any authority is needed in addition to the clear language of the statute, the judgment of the Supreme Court in Khandu Sonu v. State of Maharashtra, : 1972CriLJ593 can be cited. When it was argued by the appellant's Advocate before the Supreme Court that the prosecution of the accused was barred by time under Section 23 of the Act, the Supreme Court observed as follows:
This contention, in our opinion, is devoid of force. Sub-section (2) refers to suitor prosecution against a public servant or person duly authorised under the Act in respect of anything done or intended to be done under the Bombay Land Improvement Schemes Act. It cannot be said that the acts of the accused-appellants in preparing false documents and in committing criminal breach of trust in respect of the amount of Rs. 369.07 as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act. Sub-section (2) of Section 23 deals with anything done or intended to be done under the abovementioned Act by a public servant or a person duly authorised under the Act. It has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with duties of carrying out improvement schemes under the abovementioned Act. The impugned acts of the appellants in the present case were not in discharge of their duties under the abovementioned Act but in obvious breach and flagrant disregard of their duties.
6. The impuged orders passed by the learned Chief Judicial Magistrate, Kutch, Bhuj, in all the 12 different criminal cases specified above are, therefore, set aside. The learned Magistrate will proceed with the trial and hearing of the criminal cases in accordance with law. Rule is made absolute accordingly in each case.