The article is written by Vishruti Chauhan from Symbiosis Law School, Hyderabad. The present article focuses on the guidelines that are established for arresting a judicial officer. The landmark case has been dealt with in this article which provided for the guidelines and various statutory provisions have also been analysed.
Judiciary is one of the pillars of a democratic society and is a prestigious part. It is the platform where a common man hopes for justice against all odds, even if the case is against the government. The basic principle of justice has always been that ‘No one is above law’. And it is on the basis of this principle that even Judges or Judicial Officers are bound by law and liable for any offence. However, Judicial Officers are reputed and because they are in the window of the judiciary itself it is important that a case against such judicial officers is handled with utmost care. The same power to make a judicial officer liable can be misused as well. The facts of the landmark case of Delhi Judicial services Association v. The State of Gujarat had shocked the country and there was a need for certain guidelines in case a Judicial Officer is being arrested for an offence. It is also crucial to understand in which circumstances the judicial officers can be arrested and can be made liable in their judicial capacity.
Delhi judicial services association v. the State of Gujarat
Facts of the case
In this case, the Chief Judicial Magistrate at Nadiad found no cooperation with the police in delivering the summons or producing offenders and thus delaying the trials. The Chief Judicial Magistrate wrote a letter to the DSP (District Superintendent of Police) and DGP (Director General of Police) stating the same, however, no action was taken. The Police Inspector of Nadiad had withdrawn the constables from the C.J.M Court after this incident and the C.J.M. directed the police to file a criminal case against persons who were delaying the investigation, however, again no action was taken. The Police Inspector complained about the C.J.M. to the Registrar of the High Court through DSP (District Superintendent of Police). The C.J.M. was further called to the Police Station to check documents, however, the C.J.M. was forced to drink liquor and pictures were clicked in that state. Further, the Police arrested, assaulted and handcuffed the judicial officer. The case went to the Supreme Court and the issues were raised regarding the arrest made by the Police Inspector.
The Supreme Court held that the arrest made by the Police Officer, in this case, was violative of Article 136 of the Indian Constitution. This judgment is a landmark judgment and in this case, the court provided with guidelines to arrest a judicial officer-
- In case a judicial officer is to be arrested for any offence, an intimation to the District Judge or the High Court has to be done.
- In case there is an immediate arrest of a judicial officer of subordinate judiciary due to certain facts and circumstances, a technical or formal arrest can be made.
- The facts of any such arrest should be immediately communicated to the District and Session Judge of the concerned District and the Chief Justice of India.
- The arrested judicial officer is not to be taken to a police station without the prior orders of the District & Sessions Judge of the concerned district.
- Facilities of communication with family, legal advisors and Judicial Officers (District and Session Judge) have to be provided to the arrested judicial officer immediately.
- No statement should be recorded nor any ‘panchnama’ should be drawn and no medical test should be conducted of the arrested judicial officer unless in the presence of the legal advisor or any other judicial officer of equal or higher rank.
- The Judicial Officer should not be handcuffed. However, in a case where there is an imminent need to effect the physical arrest to avert danger to life and limb, such a person can be overpowered and handcuffed. An immediate report has to be made to the District & Sessions Judge and to the Chief Justice of the High Court in such a case. Such a burden falls on the Police to establish the necessity for handcuffing. If found that such handcuffing was unjustified, such Police Officers responsible for it would be guilty of misconduct and would be personally liable for the compensation or damages as determined by the High Court.
The Court held that such guidelines provided are not exhaustive but a minimum safeguard which has to be followed while arresting a judicial officer.
Statutes and provisions
The Judicial Officers Protection Act, 1850
Under this Act, protection is provided to judicial officers, in the sense that no civil suit is to be filed against such persons in any Court against an act which was done in good faith and judicial capacity by the judicial officer. Thus, this act aims to protect judges who are acting in their judicial capacity and good faith. Good faith has been described as care and attention in the performance of official duty. Any negligence done on part of a judicial officer in signing or issuing warrants will not be protected under this Act. This protection is given only for suits in Civil Courts.
The Judges (Protection) Act, 1985
Additional protection was provided to judges after the Judicial Officers Protection Act under the new Act of 1985. The Act provides an additional clause of protecting the judges from civil as well as criminal suits. The act, however, does not bar the powers of the Central Government or State Government or Supreme Court or High Court to take any such action against a judge. The said act works in addition to the already existing acts and does not hamper or contradict it.
The Judges (Inquiry) Act, 1968
This Act deals with the misbehaviour on the part of the judges of the Supreme Court and High Courts. It provides for the procedure of investigation of any matter relating to the misbehaviour or incapacity on the part of judges.
Section 228 & 77 of IPC
Section 228 of IPC (Indian Penal Code) states that if any personal insults or cause any kind of interruption to a public servant in judicial proceedings, then such a person will be liable for imprisonment which may extend to six months and with fine. This clause takes care of the prestige of judicial officers that in any case there is no infringement upon their position.
Section 77 of IPC states that an act done by the judge in his judicial capacity and good faith will not be considered as an offence. The section goes in parallel with other statutes provided and provides the judges immunity from a criminal act if done in good faith and judicial capacity.
Section 345 CrPC
The said Section of criminal law states about the ‘contempt of court’. It says that if any offence is committed by a person under Section 175, 178, 179, 180 or 228 of IPC then such an offender may be detained in custody and after appropriate reasoning, the court may provide for punishment with a fine not exceeding two hundred rupees and if such fine is not paid then imprisonment for a term of maximum one month.
Other landmark judgments
Anowar Hussain v. Ajoy Kumar Mukherjee
In this case, the appellant was the Sub-Divisional Officer who also held the post of Sub-Divisional Magistrate. The Police had arrested the respondent following the riots in the state however, no charge was put on him as the Judge did not find any material evidence binding the respondent to the riots. The respondent filed a suit against the police and the Sub-Divisional Officer claiming compensation for false imprisonment. The respondent contended that the Sub-Divisional Officer acted in his capacity of SDO and thus not entitled for protection as a magistrate under the Judicial Officers Protection Act, 1850. The court held that if there is any act done by the judicial officer within its jurisdiction, there will be no inquiry even if the act done was erroneous, irregular or illegal or if he had the good faith in doing such an act. The court further held that even if the act done by the judicial officer is outside the limits of his jurisdiction, then also he will be protected under the said Act of 1850 if such an act is done in good faith or the officer believed to have the jurisdiction of the same. The word ‘jurisdiction’ means the general authority of the Judicial Officer to act in any matter.
B.S. Sambhu v. T.S. Krishnaswamy
In this case, the respondent made allegations against the petitioner, who was a ‘Munsif Magistrate’, that while attending for a suit pending in the court he had called the respondent as ‘a big gambler’, ‘a mischievous element’ and ‘rowdy’ and had read it in front of the whole court. It was because of these derogatory remarks that the respondent had filed the suit against the appellant under Section 197 of CrPC. The court held that the act done by the appellant had no connection to the discharge of the official duty by the appellant. The court observed that “there must be a reasonable connection between the act and the discharge of the official duty and such act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim.”
Daya Shankar v. High Court of Allahabad
The petitioner, in this case, was a member of U.P. State Judicial Service and was pursuing an L.L.M. degree from Aligarh University. The petitioner was found to be cheating in the exams and thus an inquiry was set up to investigate the matter. The court held that the protection cannot be granted in such a manner to a judicial officer and a judicial officer cannot have two standards, and cannot act even remotely unworthy of the office they occupy.
Rachapudi Subba Rao v. Advocate General of Andhra Pradesh
In this case, the appellant, who was an Additional Subordinate Judge, had dismissed the suit of the respondent. In the pendency of the execution of the decree, the respondent issued a notice that the Judge had acted in a malicious manner and with bad faith. The Supreme Court took a take on the Judicial Officers Protection Act, 1850 and held that the jurisdiction as has been explained under section 1 of the Act is not to be used in a limited manner but in a general sense and wider manner. The court held that in case if the judicial officer had a general authority to enter upon an enquiry into action or petition and it is done well within the judicial capacity, a mere fact that the decree was erroneous will not put it beyond the jurisdiction. The court derives the difference between error in the jurisdiction and lack of jurisdiction in entertaining the cause of proceedings and held that both are different in nature and not supposed to be confused with each other.
State of U.P. v. Tulsi Ram
In this case, the accused was first convicted by the Trial Court but the High Court reversed the decision. The same was notified to the Judicial Magistrate but the judge issued an NBW against the accused. The same was challenged by the accused and the court held that such an order by the magistrate under Section 425 of Cr.P.C. is only a ministerial function and not judicial. Such negligence by a judicial officer cannot be ignored and is not protected by the Judicial Officers Protection Act, 1850. The judge can be made liable for such negligence and may be made to pay damages for the same.
The Judicial Officers are an important aspect of the democratic system and thus it is important to understand in what situations the judicial officers can be made liable and what guidelines to be followed in such cases. Nobody is put above law, not even judicial officers, but considering the judicial aspect and their prestige, it is important that proper measures are followed even in cases where they are being alleged of the particular offence. There are various provisions already in place which immune the judicial officers from offences, however, at the same time, the courts have interpreted every now and then that the same cannot hold true in every case.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: