Protection to Judicial Officers against Arrest & Prosecution—-When Available?

PROTECTION TO JUDICIAL OFFICERS AGAINST FIR, ARREST &     PROSECUTION     ETC.
– By S.S. Upadhyay, HJS
Addl. Director (Training),   Institute of Judicial Training & Research, U.P., Lucknow.

S  U  B  –  T  O  P  I  C  S

1.

The Judicial Officers’ Protection Act, 1850

2. The Judges (Protection) Act, 1985
3. The Judges (Inquiry) Act, 1968. 4. Conduct of Judicial Officers in and out of Court
5. Protection to Judicial Officers against Arrest & Prosecution—-When Available? 6. Acting in good faith— when to be inferred?
7. FIR & Arrest of Judicial Officers– Pre Conditions? 8. Powers of Judicial Officers u/s. 228 IPC & Sec. 345 Cr.P.C.
9. Use of unfair means by Judicial Officer in LL.M. Examination—- Protection not available. 10. Magistrate issuing NBW against acquitted accused— Not entitled to protection.
11. Judicial Officer’s Prosecution for defamatory comments on Transfer Application & Sec. 197 Cr.P.C. 12. No protection under the 1850 Act when not acting judicially

 1.         The Judicial Officers’ Protection Act, 1850

            The Judicial Officers’ Protection Act, 1850 contains only one section and is aimed at providing protection to the judicial officers acting in good faithin their judicial capacity. Sec. 1 of the 1850 Act reads as under—

Sec. 1— Non liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders—No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction : Provided that he at the time in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.

2.         The Judges (Protection) Act, 1985

            Parliament passed The Judges (Protection) Act, 1985 to provide certain more protections to Judges and Magistrates in addition to what was already available to them under The Judicial Officers’ Protection Act, 1850. Certain important provisions contained under the Judges (Protection) Act, 1985 are as under—

Sec. 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-sec. (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.

(2)        Nothing in sub-sec. (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.”

Sec. 4— Saving—The provision of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges.”

3.         The Judges (Inquiry) Act, 1968

The Judges (Inquiry) Act, 1968 has been enacted by the Parliament to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith. This Act does not cover the matter of protection to the Judicial Officers of the subordinate judiciary and exclusively deals with the matters like misbehaviour or incapacity of the Judges of the Supreme Court and High Courts.

4.         Conduct of Judicial Officers in and out of Court

Judicial Officers are bound to conduct themselves in a dignified manner. Judicial Officers cannot have two standards, one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy. See—- Daya Shankar vs. High Court of Allahabad, AIR 1987 SC 1469

5.         Protection to Judicial Officers against Arrest & Prosecution—-When Available?

(i)         Where an Executive Officer/Sub-divisional Officer was holding two offices—-one an Executive Office as a Sub-divisional Officer and other a Judicial Office as a Sub-divisional Magistrate and had ordered the arrest of a person for an offence u/s. 436 IPC but the proceedings were closed without any trial and thereafter the aggrieved person filed a suit for damages against Sub-divisional Officer, the Supreme Court, interpreting the scope of Sec. 1 of the Judicial Officers’ Protection Act, 1850, held as under—-

“In view of the admission made by the SDO that he had not taken cognizance as a Magistrate of the offence against the plaintiff before ordering his arrest, and his main defence that he had acted under the direction of his Superior Executive Officer, he must be held to have acted in his executive capacity and not in discharge of his duties as a Magistrate and hence was not entitled to protection under the 1850 Act. The Judicial Officers Protection Act, 1850 protects a judicial officer only when he is acting in his judicial capacity and not in any other capacity. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no inquiry will be entertained whether the act done or ordered to be done was erroneous, irregular or even illegal, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered to be done is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression “jurisdiction” does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter.” See— Anowar Hussain vs. Ajoy Kumar Mukherjee, AIR 1965 SC 1651

(ii)        In the case noted below an Additional Subordinate Jude dismissed the suit of the plaintiff/appellant and decreed that of the then defendant. During the pendency of the decree holder’s petition for execution of the decree and that of the appellant for its stay, the plaintiff/appellant issued a notice to the judge inter alia alleging that in his judgment he had created new facts by making third version without evidence; that he had intentionally, with bad faith and maliciously, distorted the existing oral and documentary evidence; that he had maintained different standards in the same judgment; that he had side-tracked the binding direct decisions of the High Courts and the Supreme Court; and that in the circumstances he could be said to have acted with mala fide exercise of powers without jurisdiction and therefore, he was liable for damages for the loss incurred by the appellant and for the injury.  The Supreme Court, interpreting the provisions of Sec. 1, Judicial Officers’ Protection Act, 1850 held as under—

“If the judicial officer is found to have been acting in the discharge of his judicial duties, then, in order to exclude him from the protection of Sec. 1 of the Judicial Officers Protection Act the complainant has to establish that— (i) the judicial officer complained against was acting without any jurisdiction whatsoever; and (ii) he was acting without good faith in believing himself to have jurisdiction. The expression “jurisdiction” in this section has not been used in the limited sense of the term, as connoting the ‘power’ to do or order to do the particular act complained of, but is used in a wide sense meaning ‘generally the authority of the judicial officer to act in the matters’. Therefore, if the judicial officer had the general authority to enter upon the enquiry into the cause, action, petition or other proceedings in the course of which the impugned act was done or ordered by him in his judicial capacity, the act, even if erroneous, will still be within his ‘jurisdiction’, and the mere fact that it was erroneous will not put it beyond his ‘jurisdiction’. Error in the exercise of jurisdiction will not put in beyond his ‘jurisdiction’. Error in the exercise of jurisdiction is not to be confused with lack of jurisdiction in entertaining the cause of proceeding. Initiation of criminal contempt proceedings against the appellant was held proper by the Supreme Court. See— Rachapudi Subba Rao vs. Advocate General, A.P., (1981) 2 SCC 577”

6.         Acting in good faith—- when to be inferred?

Word “good faith“ has been defined in Sec. 52 of the IPC which reads as under—–

Sec. 52 IPC—‘Good faith’—Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.”

7.         FIR & Arrest of Judicial Officers—– Pre Conditions?

            The leading Supreme Court Case on the subject is Delhi Judicial Service Association vs. State of Gujarat, (1991) 4 SCC 406- Three Judge Bench. The facts of this case are as under——

“Soon after the posting of ‘P’ as Chief Judicial Magistrate at Nadiad in the State of Gujarat in October 1988, he found that the local police was not cooperating with the courts in effecting service of summons, warrants and notices on accused persons as a result of which the trials of cases were delayed. He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened. On account of these complaints, ‘S’, the then Police Inspector Nadiad, became annoyed with the Chief Judicial Magistrate and withdrew constables posted in the CJM Court. When ‘P’ directed the police to drop the criminal cases against certain persons who had caused obstruction in judicial proceedings on their tendering unqualified apology, ‘S’ reacted strongly to the direction and made complaint against the CJM to the Registrar of the High Court through District Superintendent of Police. On September 25, 1989, ‘S’ met the CJM in his chamber to discuss a case where the police had failed to submit charge-sheet within 90 days. During discussion ‘S’ invited the CJM to visit the police station to see the papers and further assured that his visit would mollify the sentiments of the police officials. Accordingly, at about 8.40 p.m. ‘S’ sent a police jeep at the residence of ‘P and on that vehicle ‘P went to the police station. When he arrived in the chamber of ‘S’ in the police station he was forced to consume liquor and on his refusal he was assaulted. He was handcuffed and tied up with a thick rope by the Police Inspector, a Sub-Inspector, a Head Constable and a Constable. This was deliberately done in defiance of Police Regulations and Circulars issued by the Gujarat Government and the law declared by Supreme Court in Prem Shankar Shukla vs. Delhi Administration, (1980) 3 SCC 526. A panchnama showing the drunken state of ‘P’ was prepared on the dictation of ‘S’ and was signed by ‘S’ as well as two panchas—a Mamlatdar and a Fire Brigade Officer. Thereafter, ‘P’ was taken to Civil Hospital handcuffed and tied with thick rope where he was deliberately made to sit outside in the verandah on a bench for half an hour to enable the police to have a full view of the CJM in that condition. A press photographer was brought on the scene and the policemen posed with ‘P’ for the press photograph. The photographs so taken were published in newspapers. A belated justification for this was pleaded by the notice that ‘P’ desired to have himself photographed in that condition. A request made by ‘P’ in the casualty ward of the Civil Hospital, to the doctors to contact the District Judge and inform him about the incident was not allowed by ‘S’ and other police officers. On examination at the hospital, the body of ‘P’ was found to have a number of injuries. His blood was taken and chemical examination conducted without following the procedure prescribed by the Rules and Circulars issued by the Director of Medical Services, Gujarat. The Chemical Examiner submitted the report holding that the blood sample of ‘P’ contained alcohol on the basis of the calculation made by him in the report, though he later clearly admitted that he had never determined the quantity of liquor by making calculation in any other case before. At the initial stage only one case was registered against ‘P’ by the police under the Bombay Prohibition Act, but when lawyers met ‘S’ for securing release of ‘P’ on bail, the offence being bailable, ‘S’ registered another case u/ss. 332 and 506 IPC in order to frustrate the attempt to get ‘P’ released as offence u/s. 332 IPC is non-bailable. The then District Superintendent of Police did not take any immediate action in the matter; instead he created an alibi for himself alleging that he had gone elsewhere and stayed in a Government Rest House there. The register at the Rest House indicating the entry regarding his stay was found to have been manipulated subsequently by making interpolation. All these facts were found established by a then sitting Judge of Allahabad High Court who was appointed as Commissioner by the Supreme Court to hold inquiry and submit report after the Court took cognizance of the matter and issued notices to the State of Gujarat and other police officers pursuant to the writ petitions under Article 32 filed and telegrams sent to the Court from all over the country by Bar Councils, Bar Associations and individuals for saving the dignity and honour of the judiciary.

Directions issued by Supreme Court—–

(A)              A Judicial Officer should be arrested for any offence under intimation to the District Judge or the High Court as the case may be.

(B)              In case of necessity for immediate arrest of a Judicial Officer only a technical or formal arrest may be effected.

(C)              The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.

(D)             The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District and Sessions Judge of the concerned district, if available.

(E)              Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisers and Judicial Officers, including the District and Sessions Judge.

(F)               No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available.

(G)             Ordinarily there should be no handcuffing of a Judicial Officer.

Note: The relevant Circular Letters of the Allahabad High Court and the G.Os. issued by Central Government for strict observance of the directions of the Apex Court in the abovenoted case are as under—-

(i)         C.L. No. 54/IX-f-69/Admn. ‘G’ dated October 22, 1992

(ii)        C.L. No. 190117/4/90-Jus. Dated 26.4.1990/3.5.1990

(iii)       Central Government’s G.O. No. VII-11017/15/88-G.P.A. II, dated 4.10.1988

(iv)       Central Government’s Letter No. 19017/3/92-Jus., dated 3.4.1992/23.4.1992

(v)        Central Government’s Letter No. VI-25013/42/89-G.P.A. II, dt. 31.3.1992

8.         Powers of Judicial Officers u/s. 228 IPC &  Sec. 345 Cr.P.C.

In case any person intentionally offers any insult or causes any interruption in the judicial functioning of the court, the presiding officer may proceed summarily against such person u/s. 345 Cr.P.C. and may punish him u/s. 228 of the IPC.

9.         Use of unfair means by Judicial Officer in LL.M. Examination- Protection not available

Where a Munsif Magistrate had appeared in LL.M. examination held by the Aligarh Muslim University and was caught by the invigilator using unfair means and was first suspended and after departmental enquiry by the Allahabad High Court, was removed from service, the Supreme Court held that judicial officers cannot have two standards, one in the Court and another outside the Court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy. A judicial officer, who has been found guilty of using unfair means in the LL.M. Examination, is undoubtedly not a fit person to be retained in judicial service and as such the Supreme Court refused to extend the benefit of Sec. 1 of the Judicial Officers’ Protection Act, 1850 to the delinquent Munsif Magistrate. See.—- Daya Shankar vs. High Court of Allahabad, AIR 1987 SC 1469

10.       Magistrate issuing NBW against acquitted accused-Not entitled to protection

Where an accused was convicted by the trial court but on appeal was acquitted by the Allahabad High Court and even after the order of the High Court having been notified to the Judicial Magistrate concerned, he issued NBW against the acquitted accused and got him arrested, it was held by the Allahabad High Court that a committal Magistrate complying with an order certified u/s. 425 does not act under that provision but only performs a ministerial and not a judicial or a protected executive function. If he negligently signs arrest warrants against acquitted persons he is not protected by Sec. 1 Judicial Officers’ Protection Act, 1850. Even if he does so out of the negligence of his subordinate he will still be liable for damages. He will not be relieved of his liability by the failure to implead that subordinate in the suit for damages, even if the latter can be considered a joint tortfeasor. See— State of U.P. vs. Tulsi Ram, AIR 1971 All 162

11.       Judicial Officer’s Prosecution for defamatory comments on Transfer Application & Sec. 197 Cr.P.C.

(A)       Where the appellant, a Munsif Magistrate by a letter to the District Judge submitted his remarks against the allegations made by the respondent, an advocate in a transfer petition for transfer of a suit pending in appellant’s Court and while so doing called the respondent ‘rowdy’. “a big gambler”and “a mischievous element” and on this letter being read in open court the respondent filed criminal complaint against the appellant without the sanction contemplated u/s. 197 Cr.P.C., it was held that the act complained of had no connection with the discharge of official duty by the appellant. Hence Sec. 197 Cr.P.C. was not in any way attracted. See— B.S. Sambhu vs. T.S. Krishnaswamy, AIR 1983 SC 64

(B)       Protection to Judges u/s. 77 IPC—- Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

12.       No protection under the 1850 Act when not acting judicially

Where some record sent by the court of Magistrate to a Sarpanch acting under U.P. Panchayat Raj Act, 1947 got lost and on enquiry against the Sarpanch, plea was taken by him regarding protection under the provisions of the Judicial Officers Protection Act, 1850, it was held by the Allahabad High Court that since the Sarpanch was not acting as a court or judicial tribunal, therefore he was not entitled to any protection u/s. 1 of the 1850 Act. See—- Indra Pati Singh vs. State of U.P., 1986 All.L.J. 1258 (All)

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