- 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 faith in 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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