By Sachika Vij
Published On: December 07, 2021 at 14:35 IST
Introduction
The judiciary is a prestigious aspect of a democratic society and one of its pillars. It is the platform where a common man, even if the case is against the government, looks for justice against all odds. ‘No one is above the law,‘ has always been the essential precept of justice. Even Judges or Judicial Officers are bound by the law and responsible for any offence based on this premise.
It’s worth noting that under Section 19 of the Indian Penal Code, 1860, the term “judge” is defined as “any person,— who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgement, or a judgement that, if not appealed against, would be definitive, or a judgement that, 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 judgement, or who is one of a body of persons.”
Can a Judge be Arrested?
The answer to the above posed question is Yes, a judge can be arrested. The Constitution of India enshrines Right to Equality and thus any person, regardless of social status, is subject to arrest if they engage in any illegal conduct.[i]
Judicial Officers are well-known, and because they serve as the public face of the judiciary, it is critical that any case brought against them be handled with extreme caution. The ability to hold a court officer accountable can also be abused. Thus, to maintain checks and balances various guidelines have been provided by the Courts in landmark cases for the arrest of a magistrate/judge which will be dealt in great depth in the article.[ii]
The following provisions provide for arrest of a Judge/Magistrate:
- Judges (Protection) Act, 1985
The non-obstante clause in subsection 2 of this Section states that the Central or State Governments, the Supreme Court, High Court, or any other legal authority shall have the right to take legal action against any person who is or was a judge in civil, criminal, or other necessary legal proceedings.
- Section 135 of Civil Procedure Code, 1908
No judge, magistrate, or judicial officer is exempt from being arrested while going to, presiding in, or returning from court, according to Section 135 of the law.
Protection provided to a Judge under various Statutes
Various Statutory provisions provide for the protection, prevention of arrest of a Judge/Magistrate:
- Section 77 of Indian Penal Code, 1860
It records that any action taken by a presiding judge in the exercise of the power he has been given, which they feel was done in good faith and in accordance with the law, is not punishable. This clause provides protection and immunity to court officers for any act performed in good faith.
- Section 197 of the Criminal Procedure Code, 1975
It is stated under this section that if a judge, magistrate, or judicial officer who is or was not removable from office unless sanctioned by the government is accused of any crime committed while on official duty, no court shall take cognizance of the crime unless the said officers were engaged in the affairs of a state or country at the time.
- Section 345 of the Criminal Procedure Code, 1975
Section 345 establishes a procedure in cases of contempt of court and gives the judge the authority to commence appropriate contempt proceedings against an offender. This article also gives a judge the authority to take cognizance of an offence after allowing the offender to explain their actions before sentencing them with a fine or jail.
- Judges (Protection) Act, 1985
The purpose of this Act is to offer further protection to judges. No court shall accept or continue any legal case against a person who is or was a judge for any criminal or civil act done or even stated by them in the course of performing official duties or powers, according to Section 3 of this Act.
- The Judges (Inquiry) Act, 1968
This Act was enacted to govern the inquiry and proof of a Supreme Court or High Court judge’s misbehaviour or incapacity.
Landmark Cases Associated with Arrest of a Judge
- Delhi Judicial Services Association Vs the State of Gujarat & Ors., 1991[iii]
The Hon’ble Supreme Court of India held in this landmark case of the issue we are discussing in this article that the arrest of the Chief Judicial Magistrate is a violation of Article 136 of the Indian Constitution. In the given circumstances, the Supreme Court established guidelines for arresting a judge. The Apex Court ruled that a magistrate, judge, or judicial officer, like any other citizen, is liable for any crime. However, the Apex Court also established various guidelines to demonstrate minimum safeguards that must be followed when a judicial officer is arrested. and highlighted that The State Government and the High Courts must work together to ensure that the aforementioned guidelines are followed correctly.
- State of U.P. Vs Tulsi Ram 1970[iv]
In this case, the accused was convicted by the Trial Court, but the decision was overturned by the High Court. The Judicial Magistrate was notified, but the judge issued an NBW against the accused. The accused challenged the order, and the court ruled that an order issued by a magistrate under Section 425 of the Code of Criminal Procedure is only a ministerial function and not judicial. Such judicial officer negligence cannot be tolerated and is not protected by the Judicial Officers Protection Act of 1850. The judge can be held liable for such negligence and ordered to pay restitution.
- Rachapudi Subba Rao Vs Advocate General of Andhra Pradesh, 1981[v]
The respondent’s complaint was dismissed by the appellant, who was an Additional Subordinate Judge, in this contempt case. Before the decision could be carried out, the respondent lodged a notification alleging that the Judge had acted intentionally and in bad faith. The Supreme Court stated its interpretation of the Judicial Officers Protection Act of 1850, holding that the jurisdiction is not limited but must be applied in a broad and broad manner.
The Supreme Court also decided that if a judicial official has broad ability to conduct an investigation or file a petition and does so within the scope of his or her judicial authority, an erroneous decree allows the officer to exceed his or her legal authority. Finally, the Supreme Court decided that determining the cause of proceedings let it distinguish between jurisdictional error and absence of jurisdiction, and that the two are fundamentally different.
- Kamini Jaiswal Vs Union of India, 2017[vi]
In this case, a petition was filed by advocate Kamini Jaiswal alleging that attempts were made to bribe certain Supreme Court Judges in matters relating to medical admission scams.
The three-judge bench of Justices RK Agrawal, Arun Mishra, and AM Khanwilkar ruled that there was no question of registering a FIR based on allegations against a sitting Supreme Court or High Court judge because it is not permissible under the law laid down in K. Veeraswami Vs Union of India (1991)[vii], which stated that no FIR could be registered against a sitting Supreme Court judge without the approval of the competent authority.
The Court further laid down that An FIR cannot be registered against a High Court Judge, Chief Justice of the High Court, or Supreme Court Judge without the Hon’ble Chief Justice of India’s consultation, and if an allegation is made against the Hon’ble Chief Justice of India, the decision must be made by the Hon’ble President in accordance with the procedure prescribed in the said decision.
- Justice C.S. Karnan Vs Hon’ble Supreme Court of India, 2017[viii]
This controversial contempt case involved a judge making several unprecedented moves, including challenging a judge’s appointment based on forged academic credentials, alleging corruption against a few judges, accusing the Chief Justice of Madras High Court of caste discrimination, and, worst of all, accusing certain judges of having illicit relationships with one another. Putting all of these acts together, the Supreme Court convened a seven-judge panel to hear a contempt case against Justice C.S. Karnan.
In this case, it was determined that all of Justice Karnan’s allegations were false. Using the caste card and making public statements violated the court’s decorum, so he was found guilty of contempt and sentenced to 6 months in prison.
Guidelines to Arrest a Judge/Magistrate
In light of the critical importance of preserving the independence of the judiciary while also ensuring that legal violations are properly investigated. It is important and necessary to treat at par with the law. However, the Supreme Court had established following measures that need to be taken into account during arrest of a Judge:
- The guidelines include informing the district judge or the High Court, as appropriate.
- A technical or formal arrest if circumstances warrant immediate arrest of a judicial officer of the subordinate judiciary.
- Immediate communication of the arrest to the district and sessions judge of the district concerned, as well as the Chief Justice of the High Court.
- Not transporting the arrested to a police station without prior order; and no registration of the judicial officer’s statement.
- Furthermore, the officer should not be handcuffed unless there is resistance to arrest. The onus on physical arrest or handcuffing, however, is on the officer making the arrest.[ix]
Conclusion
The judiciary is an important part of democracy, and Judicial Officers play an important role in upholding the Supreme Rule of Law. Many provisions exist to protect Judicial Officers from criminal charges, but different courts have repeatedly stated that protecting Judicial Officers is not unreasonable. Furthermore, if any judicial officer is found guilty, the Judicial Officers themselves can be arrested and punished. The Supreme Court issued guidelines for arresting a judicial officer in this regard.
Judicial officers fall within this umbrella, despite the fact that no one is above the law. In fact, the Anti-Corruption Bureau apprehended a Judge from Pune in April 2021 for accepting payments to grant a favourable judgement to a side. As a result, such instances continue to show us the section of the law where a judge is no longer immune from the rules set out. In the end, it demonstrates that no one is above the law.
There are many protections in existence that protect judicial officers from criminal liability; nonetheless, the courts have occasionally interpreted that this does not apply in every circumstance.
ABOUT THE AUTHOR
This article is written by Sachika Vij , a student, studying at Dr. Ram Manohar Lohiya National Law University, Lucknow. The Author is in her first year and has recently started her law school journey. She owns a keen interest in understanding and penning down her opinions and has a special interest in getting adept at writing and blogging.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
References
- Arresting a Judge and its procedure
- Guidelines on arrest of women and Judicial officers
- Whether Judicial Officer can be arrested
- Can a sitting Judge be arrested?
[i] Kapadia, Y. (2021, November 24). Can a Judge Can Be Arrested And What Is the Procedure for the Same – IPleaders. iPleaders.
[ii] Upadhyay, S. (n.d.). JTRI. JTRI.
[iii] Delhi Judicial Services Association Vs the State of Gujarat & Ors., 1991 AIR 2176
[iv] State of U.P. Vs Tulsi Ram AIR 1971 All 162
[v] Rachapudi Subba Rao Vs Advocate General of Andhra Pradesh, 1981 AIR 755 SC 1981
[vi] Kamini Jaiswal Vs Union of India W.P. [CRIMINAL] NO.176/2017
[vii] K. Veeraswami Vs Union of India 1991 SCC (3) 655
[viii] Justice C.S. Karnan Vs Hon’ble Supreme Court of India, 2017 W.P.(C) 6278/2017
[ix] Garg, R. (2020, November 9). Guidelines for Arresting Judicial Officers – IPleaders. iPleaders.