Officers acting judicially under the Bombay Tenancy and Agricultural Lands Act, 1948, are immune from prosecution under section 85(2) of the Act and section 77 of the Indian Penal Code.

Headnote:
PREVENTION OF CORRUPTION ACT - SECTION 5(1)(D) - BOMBAY TENANCY AND AGRICULTURAL LANDS ACT - SECTION 85(2) - INDIAN PENAL CODE - SECTION 77 - Immunity of judicial officers - Scope and applicability.
Fact of the Case:

The accused, an Additional Mamlatdar and Agricultural Lands Tribunal, was charged with obtaining an agreement for purchasing land for his sons by corrupt or illegal means or by otherwise abusing his position as a public servant under section 5(1)(d) read with section 5(2) and (3-A) of the Prevention of Corruption Act, 1947. The prosecution relied on three proceedings: (1) an application by the owner of the land for a declaration that the land was not protected under the Bombay Tenancy and Agricultural Lands Act, (2) proceedings under section 32-G of the Act, and (3) a reference under section 85 of the Act. The accused pleaded not guilty and relied on section 77 of the Indian Penal Code, which provides immunity to judges acting judicially.
Finding of the Court:

The court held that the prosecution was not maintainable against the accused in view of 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. The court also held that the accused was fully protected under section 77 of the Indian Penal Code, which provides immunity to judges acting judicially.
Issues: 1. Whether the prosecution was maintainable against the accused in view of section 85(2) of the Bombay Tenancy and Agricultural Lands Act? 2. Whether the accused was entitled to immunity under section 77 of the Indian Penal Code?
Ratio Decidendi: 1. Section 85(2) of the Bombay Tenancy and Agricultural Lands Act bars the jurisdiction of even a criminal court from questioning the orders passed by an officer under that Act. 2. Section 77 of the Indian Penal Code provides immunity to judges acting judicially.
Final Decision: The court dismissed the appeal and affirmed the order of acquittal of the accused.

JUDGMENT - G.N. VAIDYA, J.:---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 (3-A) 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 Surveys 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 Kantas death in 1949, his name continued as a tenant cultivating the lands upto 1953-54. The name of his brother Ramnath Tiwari came to be entered upto 1961-62 as a tenant. From 1962-63 and onwards the owner Kirtane was shown as cultivating the lands personally.

4. The prosecution contended that 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 (3-A) of the Prevention of Corruption Act. The prosecution relied in this connection on the three proceedings : One an application (Ex. 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 Kartane 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 Ex. 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 Jayram v. Vishnu Rama)1, Spl. Civil Application No. 944 of 1961, decided on 23.1.62, D.B.

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 Kantas 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 (Ex. 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 grasslands, and to delete the name of Kanta, even before he ha

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