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Can A Judge Be Arrested? What Is The Procedure?

Ashok Kini
13 Feb 2019 5:50 AM GMT
Can A Judge Be Arrested? What Is The Procedure?
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Can a judicial officer be arrested?

This might be an interesting question, but the answer is well settled by the Supreme Court in Delhi Judicial Service Association Tis Hazari Court VS. State of Gujarat (1991), when it held that no person whatever his rank, or designation may be, is, above law and he must face the penal consequences of infraction of criminal law. The Apex court also said that a Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen.

Procedure For 'Arresting' Judicial Officer

In the same judgment, the court, laid down the following guidelines, rather minimum safeguards that must be observed in case of arrest of a judicial officer:

  • If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.
  • If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.
  • The facts 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.
  • The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.
  • Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge.
  • 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 Office of equal or higher rank, it' available.
  • There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and' handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court.
  • But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.
Statutory Protection

The Judicial Officers' Protection Act, 1850

This pre-independence statute has only one section which protects the judicial officers acting judicially, for official acts done in good faith, and of officers executing warrants and order. The said provision read: 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.

The Judges (Protection) Act, 1985

This statute enacted in the year 1985 provides for additional protection to judges and state that 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. But the Act also state that this protection shall not 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.

The Judges (Inquiry) Act, 1968

This Act is meant 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.

Section 135 of Code of Civil Procedure

This section provides that, no Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.

Section 197 of Criminal Procedure Code

This provides that, when any person who is or was a Judge or Magistrate is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

Section 77 in the Indian Penal Code

This section provides that 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.

Instances of Arrest/Prosecution/Conviction of Judges

Justice Karnan Case: A seven Judge Bench of the Supreme Court headed by the CJI JS Kehar had convicted Justice CS Karnan, who was then serving as Judge of Calcutta High Court, for contempt of court. The Court sentenced him to imprisonment for six months and observed that he should not perform any administrative or judicial functions.

In B.S. Sambhu vs T.S. Krishnaswamy, the issue was whether sanction under Section 197 Cr. P.C. is required for prosecuting a Munsiff - Magistrate against whom a lawyer had lodged a criminal defamation complaint. In his letter to the District Judge who had called for remarks from him regarding certain allegations that were made in the transfer application, the Munsiff Magistrate had termed the complainant a 'Rowdy', 'a big gambler' and 'a mischievous element'. The Supreme Court held that such an act could not even remotely be said to be connected with the discharge of official duty which was to offer his remarks regarding the allegations made in the transfer petition.

In Delhi Judicial Service Association Tis Hazari Court, the Apex Court was considering the petition filed against police officers who had arrested and humiliated a Chief Judicial Magistrate. The court observed that the police officers who assaulted the CJM, handcuffed and arrested him on flimsy grounds, constituted clear case of criminal contempt.

In Nilesh C Ohja vs. State of Maharashtra, the Bombay High Court directed all the Courts in the States of Maharashtra and Goa, Union Territories of Daman, Diu, Dadra and Nagar Haveli not to entertain any prosecution or any complaint under any provision of the Code of Criminal Procedure, 1973, including under section 156(3) of Cr.P.C. for investigation against a Judge of this Court or any judicial officer in respect of an offence alleged to have been committed in the discharge or purported discharge of official duty or judicial function by passing a judicial order or by committing any act or omission or by doing anything or by speaking any words in the Court precincts.

In K.Veera Raghava Reddy vs. State of Telangana, the High Court of Telangana and Andhra Pradesh held that, no compliant, under Section 154 Cr.P.C, can also be registered against a High Court judge even for matters unconnected with his judicial duties without obtaining the sanction of the President of India who is required to consult the Chief Justice of India before according any such sanction.

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