Date of judgment:
July 12, 2021
Judges:
R. Narayana Pisharadi, J.
Parties:
Petitioner- G. SANTHOSH KUMAR
Respondent- STATE OF KERALA
Subject
Whether an Assistant Commissioner of the Sales Tax Department who acts in a judicial capacity is entitled to get the protection under the Judges (Protection) Act? Can a public servant working in a judicial capacity be made liable for misconduct under certain circumstances?
Overview
- The petitioner is a retired Assistant Commissioner (Assessment), Commercial Taxes, Thrissur who was alleged of corruption and other accused is M/s. Nano Excel Enterprises Private Limited.
- He was accused of the charge 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.
- It was alleged in the report of the Vigilance and Anticorruption Bureau (VACB) that the petitioner was an assessing officer who deliberately overlooked to verify the assessment files, audited statement of accounts, other records including bank accounts relating to M/s. Nano Excel Enterprises.
- It was also alleged that he violated the directions given by Deputy Commissioner, Commercial Taxes, and passed an order of refund to the accused company which resulted in the loss of Rs.50,18,606/- to the Government and the act was done in pursuance of the conspiracy.
- The petitioner approached the High Court under Section 482 of CrPC to quash the final report filed by VACB.
- The petitioner's counsel submitted before the Court that the acts done by the petitioner were in good faith while discharging his duty and he is entitled to protection under Section 79 of the Kerala Value Added Tax Act (KVAT).
- It was also contended that the orders passed by the petitioner as an assessing authority were done in a judicial capacity and he is entitled to protection under Section 3(1) of the Judges (Protection) Act, 1985.
- The Public Prosecutor submitted that the orders passed by the petitioner were not in good faith and he is not entitled to any protection or immunity because of the acts of corruption committed by him.
Legal Provisions
- Section 3 in The Judges (Protection) Act, 1985 - Additional protection to Judges
- Section 79, Kerala Value Added Tax Act (KVAT), 2003- Bar of certain proceedings.
- Section 55, Kerala Value Added Tax Act (KVAT), 2003- Appeals to the Deputy Commissioner (Appeals) and Assistant Commissioner (Appeals)
Judgment Analysis
- The Court first observed Section 79 of the KVAT Act which is divided into two Sub-Sections, 79(1) which says that no suit can be brought against any officer or servant of the Government, for any act done or purporting to be done under the KVAT Act, without the previous sanction of the Government and 79(2) deals with the civil and criminal liability of officer under the acts done in good faith.
- Answering the 79(1), the State Government has already granted sanction to start the proceedings therefore no separate sanction is needed.
- Section 79(2) requires the act to be done in good faith and the definition of good faith under the General Clauses Act and Indian Penal Code establishes that to determine good faith, facts and circumstances of each case are observed.
- The question of fact cannot be determined under the application filed under Article 482 of CrPC.
- The Court looked into the definition of the term, ‘judge’ under Section 2 of the Judges (Protection) Act, 1985 and Section 77 of the Indian Penal Code and pondered on Section 3 of the Judges (Protection) Act.
- Section 3(1) of the Act says that no court shall entertain any civil or criminal proceedings against any person who acted as a judge and for acts done in the course of his judicial capacity.
- The first question before the Court was whether Assistant Commissioner (Assessment) in the Sales Tax Department, comes within the purview of the definition of “Judge” under the Act.
- After looking into the definition of a judge under serval acts and going through several other judgments such as Abdul Aziz Ansari v. the State of Bombay, General Officer Commanding v. C.B.I, the Court concluded that assessment orders passed by the petitioner were under judicial capacity.
- Another question before the Court was that whether passing an assessment order under the KVAT Act constitutes an act in the discharge of judicial functions.
- The Court after looking into the definition and distinction of legal and judicial proceedings in several cases like Jaswant Sugar Mills v. Lakshmi Chand, Surendra Kumar Bhatia v. Kanhaiya Lal, Sankaran Pillai v. Chandran, concluded that the orders passed by the petitioner come under judicial proceedings and he is entitled to get the protection under Section 3(1) of the Act.
- The Court also made it clear that the petitioner, who was in the rank of Assistant Commissioner, was not bound to obey the written directions of the Deputy Commissioner under Section 55 of the KVAT Act as he was acting in a judicial capacity.
- If an order passed by any public servant is merely erroneous, it does not warrant initiation of criminal proceedings against the public servant, unless he has motives or other considerations.
Conclusion
The petition was allowed and it was held that the assessment orders passed by the petitioner were protected under Section 3(1) of the Judges (Protection) Act and the report against him was not maintainable and hence the proceedings against him were quashed.
Click here to download the original copy of the judgement
