Kerala HC: Mere Erroneous Exercise Of Judicial Power Sans Extraneous Considerations Not Criminal Misconduct

FACTS

• The petitioner, Assistant Commissioner (Assessment), Commercial Taxes, Thrissur was alleged to have taken a bribe from one M/s. Nano Excel Enterprises and help them evade taxes.
• The said information was given by the Commissioner of Commercial Taxes to the Director, Vigilance and Anticorruption Bureau (VACB). On his orders, a vigilance inquiry was conducted against the petitioner and others.
• After the inquiry, a chargesheet was filed against the accused-petitioner and others 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.
• The crux of the allegations against the accused was that he was the assessing authority and he deliberately omitted to verify the assessment files and audited the statement of account, bank statements, and other documents of M/s. Nano Excel Enterprises and filed a refund to the company causing loss to the Government and this all was done under a conspiracy.

BEFORE THE COURT

• The petitioner filed the application under Section 482 of CrPC before the High Court for quashing the final report filed by the Director, Vigilance and Anticorruption Bureau (VACB) against him.
• The main issue before the Court was that whether an Assistant Commissioner of the Sales Tax Department, who passes an order of assessment under Kerala Value Added Tax Act, 2003 is entitled to get protection under the Judges (Protection) Act, 1985.

SUBMISSIONS

• The counsel for the petitioner challenged the final report on the ground that the acts done by the petitioner were done in good faith while discharging his duty under Kerala Value Added Tax Act (KVAT) and is entitled to protection under Section 79 of the Act.
• He also stated that the acts done by the petitioner were done as a quasi-judicial authority and he is entitled to protection under Section 3(1) of the Judges (Protection) Act, 1985.
• Public Prosecutor stated that the assessment order filed by the petitioner was not in good faith and he violated the directions of the Deputy Commissioner.
• The prosecutor also mentioned that the petitioner is not entitled to protection or immunity under any Act because of the acts of corruption committed by him.

ORDER

• The Court refused to look into the argument as to whether the act was done in good faith as it was a question of fact and it cannot be ascertained by the Court.
• The Court observed that the assessment order passed by the petitioner was carried out in judicial authority and he will be treated as a judge.
• The Court allowed the petition, quashed the corruption proceedings and held that the petitioner will be entitled to protection under Section 3(1) of the Judges (Protection) Act.
• The Court also established that if a public servant acting in judicial capacity passes an order causing loss to the Government, he will not be liable for misconduct unless proved otherwise.

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