This article is written by Yash Kapadia. This article answers the question of whether a judge can be arrested. With the help of statutory provisions and judicial precedents, we shall also ascertain the guidelines laid down.

Introduction

This is an extremely thought-provoking question when asked if a powerful judicial officer like a judge can be arrested or not. Under what circumstances and for what reasons can a judge be arrested or does a judge have the power to be immune to any sort of prosecution. 

It is pertinent to note that the Indian Penal Code, 1860, under Section 19, defines Judge in the following manner:

“Judge”.—“The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person,— who is empowered by law to give, in any legal proceeding, civil or criminal, 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 who is one of a body of persons, which body of persons is empow­ered by law to give such a judgment.”

Therefore, through this article, we shall ascertain when a judge can be arrested. With the help of statutory provisions and judicial precedents laid down, we shall understand the procedure which needs to be followed for the same. 

Can a Judge be arrested 

The simple answer to this question is a yes, a judge can be arrested. India is a democratic country with every person having the fundamental right to be treated with equality. This is enshrined under Article 14 of the Constitution of India. India is a sovereign state and nobody is above the law in this country. Therefore, any person, regardless of his stature in society, is liable to be arrested if they are involved in any sort of activity not permitted by law.

We shall now enlist the statutory provisions relating to the power, protection and action against judges: 

1. Section 77 of Indian Penal Code, 1860

Section 77 lays down that any activity done by a presiding judge in the exercise of the power he has been granted, which they believe to have done in good faith, given to them by the law, is not liable for any offence. This particular section protects and gives the judicial officers a taste of immunity for any act done in good faith. 

2. Section 228 of Indian Penal Code, 1860

Section 228 states that if any insult or interruption is caused by a person towards another public servant who is a part of an ongoing legal proceeding, then the person causing such trouble will be liable to simple imprisonment extendable up to six months along with a fine. This Section, again, provides some sort of immunity to the public servants who are judges in this case.

3. Section 135 of the Civil Procedure Code, 1908

Section 135 states that no judge, magistrate or judicial officer is exempted from getting arrested while going to, presiding in and returning from his court.

4. Section 197 of the Criminal Procedure Code, 1975

Section 197 states that a judge, magistrate or a judicial officer who is or was not removable from office unless sanctioned by the government is accused of any offence which they committed while at official duty, then no court shall take cognizance of the offence except when the said officers were employed at that time in connection with the affairs of a state or country. 

5. Section 345 of the Criminal Procedure Code, 1975

Section 345, too, provides a procedure in cases of contempt of court and provides powers to the judge to initiate relevant contempt proceedings against an offender as the judge may deem fit. This provision also provides some kind of power to a judge to take cognizance of an offence after giving the offender an opportunity to show the cause of their acts before punishing them with a fine or imprisonment. 

6. Judges (Protection) Act, 1985

This Act has been formulated to provide additional protection to judges. Section 3 of this Act states that no court shall entertain or continue any sort of legal proceeding against a person who is or was a judge for any criminal or civil act, done or even spoken by them in the course of performing the official duties or functions.   

However, subsection 2 of this Section has a non-obstante clause which states that the Central or State Government or the Supreme Court, High Court or any other authority under law shall have a right to take legal action in terms of civil, criminal or other necessary legal proceedings against any person who is or was a judge. 

7. The Judges (Inquiry) Act, 1968 

This Act is formed to regulate the procedure for investigations and proof of misbehaviour or incapacity of a Supreme Court or High Court judge. 

Judicial precedents 

It is evident from the aforementioned statutory provisions that judges in India are given a significant amount of protection from any legal proceedings being initiated against them but they are not bullet-proof to the same. Every citizen has to be treated with equality regardless of their stature and therefore acts like the Judges (Inquiry) Act of 1968 have been formulated. 

Regardless of the statutes in force, the Supreme Court of India has also in various landmark cases given its views and further also provided guidelines to arrest a judge. The following are the major landmark cases one must rely on, to be well conversant with the process to arrest a judge:

1. Delhi Judicial Services Association v. the State of Gujarat  & Ors., 1991

In this landmark case of the issue we deal with in this article, the Hon’ble Supreme Court of India held that the arrest of the Chief Judicial Magistrate is violative of Article 136 of the Constitution of India. In the given circumstances, the Hon’ble Apex Court laid down guidelines to arrest a judge. The Apex Court opined that a magistrate, judge or judicial officer is liable for any offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated it laid down the following are the guidelines:

• The arrest of a judicial officer for an offence must be made after prior intimation to the District Judge or the High Court as the case may be. 
• If the immediate arrest of a judicial officer from a subordinate court is necessitated, then a technical or formal arrest may be put into effect. 
• The arrest of such kind must be immediately communicated to the District and Session Court judge of the concerned District along with the Chief Justice of the High Court.
• Without the prior orders of the District and Sessions Judge, if available, a judicial officer who is arrested cannot be taken to the police station. 
• The judicial officer arrested shall be provided with all facilities to intimate their family members, lawyers and the relevant District and Sessions Judge.
• No statements whatsoever must be recorded from the arrested judicial officer’s end, neither any punchnamas must be drafted nor any medical tests can be conducted without the presence of their lawyers/ legal advisors or another equally or higher ranked judicial officer, if available.
• The arrested judicial officer cannot be handcuffed. However, if the judicial officer uses force and violence to resist the arrest with imminent danger to life and limb then in those circumstances, the judicial officer must be over-powered and handcuffed. It is pertinent to note that an immediate report of such resistance and violence must be communicated to the relevant District or Session Judge and the Chief Justice of the High Court. However, the burden of proof lies on the police officer to prove that force was used by the arrested judicial officer. If, however, sufficient proof is not given, then the police officer will be guilty of misconduct and necessary legal proceedings and punishments shall be levied against them which shall be determined by the High Court. 

It is pertinent to note that the above guidelines are not exhaustive in nature but showcase the minimum safeguards which must be observed when a judicial officer is to be arrested. An endeavour must be made by the State Government and the High Courts for the implementation of the aforesaid guidelines in a rightful manner. This in fact turns out to be a landmark case to rely on, in this domain. 

2. Anowar Hussain v. Ajoy Kumar Mukherjee, 1965

In this appeal, a Sub-Divisional Officer, being the Appellant and holding the post of Sub-Divisional Magistrate. The respondent, in this case, was arrested by the police. However, no charges had been levied against him as the Judge did not find anything material binding the respondent to the riots in the case. A suit for false imprisonment was filed by the respondent against the Sub-Divisional Officer and the police and also claimed compensation for the same. It was submitted by the Respondent that the Sub-Divisional Officer acted in his capacity and was not entitled to be protected as a magistrate under the Judicial Officers Protection Act, 1850. 

The Hon’ble Court, relying on Section 1 of the Judicial Officers Protection Act, 1850 held that there would be no inquiry against any act done by the judicial officer within its jurisdiction, even though it was erroneous, irregular or illegal or if he had the good faith in doing such an act. The Hon’ble Court further held that even if the act done by the judicial officer was outside the limits of his jurisdiction but in good faith or the officer believed to have the jurisdiction of the same, even then he would be protected by the Act mentioned above. 

In this case, the appellant held two offices, an executive office and a judicial office. The appellant pleaded protection against the liability that arose on his action and on the ground that he acted so while discharging his duty and on the command of his superior officer, thereby relying primarily upon his executive office. The Court of First Instance and the High Court had held that the appellant “acted recklessly and maliciously” when he arrested the respondent. The Court held that, as a Judicial Officer, the appellant had no protection because he did not act in order to show that the respondent should be arrested in the discharge of the duties of his office as a Magistrate. The appeal was therefore dismissed

3. Rachapudi Subba Rao v. Advocate General of Andhra Pradesh, 1981

In this contempt case, the respondent’s suit was dismissed by the appellant who was an Additional Subordinate Judge. The respondent issued a notice that the Judge had acted maliciously and in bad faith before the decree could be executed. The Supreme Court gave its interpretation of the Judicial Officers Protection Act, 1850 and held that the jurisdiction is not limited but the same has to be applied in a general and wider sense of understanding. The Apex Court further held that in case if a judicial officer has a general authority to put an inquiry into action or petition and it is done well within the judicial capacity, an erroneous decree does let it go beyond its required jurisdiction. The Apex  Court finally held that it acquired the difference between error in a jurisdiction and lack of jurisdiction by ascertaining the cause of proceedings and that both of these are completely different in nature. 

4. K.Veera Raghava Reddy vs State Of Telangana, 2016

A case was registered against 2 Andhra High Court judges and the then Chief Justice of the Andhra High Court who heard the matter. This appeal raised the question of whether a police station is under the obligation to register a complaint under Section 154 CrPC against sitting Judges of a High Court in relation to the judicial orders passed by them in writ proceedings and whether their failure/refusal to do so would confer any right on the petitioner to invoke the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution of India?

It was held by the High Court that while no civil or criminal action can be instituted against a Judge of the High Court for his judicial acts, no compliant, under Section 154 CrPC, can also be registered against him even for matters unconnected with his judicial duties unless a sanction is given by the President of India who is required to consult the Chief Justice of India before according any such sanction.

5. Justice C.S. Karnan v. Hon’ble Supreme Court of India, 2017

This contempt case involved various unprecedented moves made by a judge that involved challenging a judge’s appointment based on fake academic qualifications, allegations of corruption against few judges and alleging the Chief Justice of Madras High Court of caste-based discrimination and worst of all, he accused certain judges having illicit relations with one another. Putting all these acts under one shell, the Supreme Court formed a 7- senior judge bench to adjudicate a case of contempt against Justice C.S. Karnan. 

It was held in this case that all the allegations by Justice Karnan were false. By using the caste card and making public statements dishonoured the decorum of the court and therefore, he was held guilty of contempt and was sentenced to 6 months imprisonment. This case is highly controversial and to read more about Justice Karnan, one can refer to this article here.

6. Kamini Jaiswal vs Union of India, 2017

This case involved a petition filed by advocate Kamini Jaiswal wherein it was alleged that attempts were made to bribe certain Supreme Court Judges in matters relating to Medical admission scams. 

The 3-judge bench of composed of Justice RK Agrawal, Arun Mishra and AM Khanwilkar held that there was no question of registering any FIR based on the allegations against a sitting Judge of the Supreme Court or High Court because it isn’t permissible as per the law laid down in K. Veeraswami v. Union of India (1991), wherein it was held that no FIR could be registered against a sitting Supreme Court judge without the approval of the competent authority. The Apex Court further stated that “there cannot be the registration of an FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision.”

Conclusion

Judiciary plays a very important role in our democratic country and giving the right to equality to all, further strengthens the supreme rule of law. We discussed different statutory provisions that exist to protect the Judicial Officers from offences. However, the Hon’ble Supreme Court along with subordinate courts have remarked multiple times that the protection of Judicial Officers is not unreasonable. Even more so, if any judicial officer is found guilty, then even the Judicial Officers can be arrested and punished. For the same, the Apex Court laid down guidelines while arresting a judicial officer. 

While reiterating the fact that no one is above the law, judicial officers come under this umbrella. In fact, in a recent case in April 2021, a Judge from Pune was arrested by the Anti Corruption Bureau for taking bribes to give judgment in favour of a party. Therefore, such scenarios are ongoing showing us the part of the law when a judge is no more immuned of the provisions laid down. Ultimately, what it truly depicts is there is nobody above the law. 

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/L9vr7LmS9pJjYTQ9

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.