Judicial immunity applies to quasi-judicial functions, protecting public servants from prosecution in the absence of evidence showcasing improper motives.

The petitioner, an Assistant Commissioner (Works Contract), Goods and Services Tax Department seeks to quash Crime No.1/2022/SIU-II registered by the VACB, SIU-II Thiruvananthapuram. She is alleged to have committed offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,

1988. 2. The petitioner is arraigned as accused No.1 in the FIR. Mr.Abdhul Rasheed, the Managing Director of a construction company is accused No.2.

3. The FIR was registered based on a complaint filed by Mr.Neyyattinkara P. Nagaraj alleging that the petitioner while working as Assistant Commissioner (Works Contract), Tax Tower, Karamana, Thiruvananthapuram during the period from 30.5.2014 to 20.6.2015 assessed tax to be paid by accused No.2 in such a way as to give unlawful benefit to him and loss to the Government. The prosecution alleges that while passing the assessment order dated 6.12.2014 the petitioner omitted to include the works done by the sub-contractors of accused No.2, thereby excluding the contract work worth Rs.48,67,18,996/- leading to reduction of tax to the tune of Rs.1,46,01,569/-. It is alleged that the Government sustained a loss of Rs.1,33,31,691/-.

4. I have heard the learned counsel for the petitioner Sri.S.Rajeev and the learned Special Government Pleader (Vigilance) Sri.A.Rajesh.

5. The learned counsel for the petitioner submitted that as the assessment order dated 6.12.2014 passed by the petitioner is the basis for the prosecution which is a quasi judicial order, the petitioner is entitled to the protection contained in Section 3 (1) of the Judges (Protection) Act, 1985 . The learned counsel for the petitioner submitted that the prosecution has not placed any material to show that the petitioner passed an assessment order on extraneous considerations or that she received any bribe.

6. The learned Special Government Pleader submitted that the protection under the Judges (Protection) Act 1985 is not absolute and if it is found that the assessment order was passed deliberately omitting certain relevant materials with intent to favour accused No.2 the petitioner is not entitled to the protection.

7. The petitioner, who was working as Assistant Commissioner (Works Contract) exercising the jurisdiction under the Kerala Value Added Tax Act, was empowered to pass assessment orders.

8. The foundation of the registration of FIR against the petitioner is the assessment order dated 6.12.2014 passed by her in favour of accused No.2. The only question that arises for consideration is whether the petitioner is entitled to the protection contained in Section 3 (1) of the Judges (Protection) Act, 1985 .

9. It is profitable to extract Sections 2 and 3 of the Judges Protection Act, 1985 which read thus:-

“2. Definition.- In this Act, “Judge” means not only every person who is officially designated as a Judge, but also every person- (a) who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or

(b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in clause (a).

3. Additional protection to Judges.- (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.”

10. Going by the definition, “Judge” includes every person empowered by law to give definitive judgment in any legal proceeding or a judgment which, if not appealed against, would be definitive or a judgment which, if confirmed by some other authority, would be defini