Rokkala Ranga Rao v. Rokkala Ratnakumari & Ors.

Heard the petitioner in person and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor for the second respondent.

No notice is being ordered to the first and third respondents, as the matter is being disposed of at the stage of admission. The petitioner is aggrieved by the order passed by the Principal District and Sessions Judge, West Godavari at Eluru Crl.M.P.No.967 of 2009 in S.R.No.2186 of 2009 on 04.06.2009 allowing the petition for condonation of delay of 25 days in representing the revision petition. The petitioner therefore desires the third respondent herein, the then Principal District and Sessions Judge, West Godavari at Eluru and since retired, to be ordered or directed to be examined and also to declare that the Principal District and Sessions Judge had no jurisdiction to admit and allow Crl.M.P.No.967 of 2009 with a consequential order of quashing the said docket order. The petitioner in person refers to the definition of a Judge under the Indian Penal Code, 1860 in this regard to contend that a retired District and Sessions Judge is no Judge for the purpose for which his criminal petition has been filed and also referred to Section 121 of the Evidence Act, 1872 which is about protection given to Judges and Magistrates from being compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate.

The petitioner in person also stated about the Judicial Officers Protection Act, 1850 being confined only to protection from civil liability and the Judges (Protection) Act, 1985 not conferring any protection on a retired Judge as the said Act has to be read in conjunction with Section 19 of the Indian Penal Code. The Judges (Protection) Act, 1985 itself defines the word ‘Judge’ in Section 2 and therefore in understanding or applying the said Act, none can travel beyond the provisions of the statute itself to construe the said Act with reference to a definition given in some other statute for the purpose of that statute. A Judge is defined under the Judges (Protection) Act, 1985 almost similarly as defined under the Indian Penal Code, but any analysis of the definition is not required as the third respondent herein was admittedly a Judge when the order in question was passed. The complaint is about the Judge not acting judicially by passing the order in question on the bench but by passing the order in his chambers on the note put up by his staff member and so far as the validity of a judicial order is concerned, it is difficult to find any justification for the place of passing such an order invalidating the legal effect of such an order.

The question could be only whether the order passed is within the jurisdiction of a Judge or a Court and not where and when the order was passed. Section 327 of the Code of Criminal Procedure read with Rule 5 of the Criminal Rules of Practice and Circular Orders indicating that a Criminal Court is to be open and that Judicial work is to be done in Court house, does not exclude the chambers of the Judge from the Court house. Though, the affidavit in support of the petition was styled to be one under Section 139 of the Code of Civil Procedure given by the Advocate’s Clerk and though the petition signed by the Advocate for the petitioner was as under Section 151 of the Code of Civil Procedure, the note put up by the office of the Court clearly specified the petition to be one under Rule 131 of the Criminal Rules of Practice. Rule 131 of the Criminal Rules of Practice provides for a petition and affidavit to excuse delay accompanying any petition represented after the expiry of the time specified under Rule 130 and therefore barred by limitation on the date of its representation.

The petition and the affidavit shall be as prescribed in Rule 127 and notwithstanding the mentioning of wrong provisions of law in the petition and the affidavit, the contents of the same do not ex facie appear to be violative of Rules 127, 130 and 131 of the Criminal Rules of Practice and Circular Orders, 1990. Consequently, irrespective of the correctness or otherwise of the order allowing the application, the same cannot be ignored as being not a judicial order or an order passed in discharge of judicial functions of third respondent while holding office as the Principal District and Sessions Judge, West Godavari at Eluru. If so the question would be whether the protection additionally granted to Judges by Section 3 of the Judges (Protection) Act, 1985 would be available to him or not. Section 3 starts with a non obstante clause over riding anything contained in any other law for the time being in force and it debars any Court from entertaining or continuing 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.

Even if all the allegations of the petitioner in the present Criminal Petition were to be accepted in toto at face value, it cannot be said that the act of the third respondent is not purporting to act in the discharge of his official or judicial duty or function and when the prohibition of entertaining any civil or criminal proceeding is also against a person who ‘was’ a Judge, retirement of the third respondent from service would make no difference to the protection given by the statutory provision. There is nothing in Section 19 of the Indian Penal Code or the definition of a Judge under Section 2 of the Judges (Protection) Act, 1985, which runs contrary to such an understanding of the provision. The provisions of Section 3(1) are of course subject to the power of the Central Government or State Government or the Supreme Court or the High Court or any other authority under any law for the time being in force to take such action by way of civil, criminal or departmental proceedings or otherwise against any person who is or was a Judge.