Can A Judge be Arrested Under the Indian Law?

A Judge is a judicial officer in India who is in control of a court of law and his duty is to uphold the law and see that justice is made. He is held accountable with the task to ensure justice is served in its right sense to maintain harmony in the society. A Judge presides over the cases in the court and acts as an impartial mediator in the court of law. They are required to analyze situations and cases from all perspectives and then make an unbiased decision.

In every democratic country, a Judge plays one of the most crucial roles in contributing to maintaining the essence of democracy. They are held responsible for the fate of the cases from minor to major level and are the guardian of the Constitution.

To ensure free and fair justice, several immunities have been granted to the judges. The Indian Judges have been empowered with immunity under Section 77 of the “Indian Penal Code, 1860”, which provides that any judge doing an act, in good faith, acting judicially in the exercise of his power given to him by law, is not committing an offence. In addition, “The Judicial Officers’ Protection Act, 1850” provides protection to any judicial officer acting in good faith and in his own judicial capacity, further under “The Judges (Protection) Act, 1985” certain more protections have been provided to the Judges under some important Sections like Sec. 3[1].

But the question stands: Can a Judge be arrested? The answer is, yes, a Judge can be arrested under the Indian Law. In Anowar Hussain vs. Ajoy Kumar Mukherjee[2], it was held that only when a Judicial Officer is acting in his judicial capacity and not in any other capacity, he is protected under The Judicial Officers Protection Act, 1850. This protection is absolute and even if the act is done or ordered to be done was erroneous, irregular or even illegal, or was done or ordered without believing in good faith, no inquiry will be entertained. Also, if he in good faith believed himself to have jurisdiction to do or order the act, at the time of doing or ordering the act complained of, he is still protected. To make a case against a judge it is important to establish that (i) the judicial officer was acting without any jurisdiction whatsoever; and (ii) he was acting without good faith in believing himself to have jurisdiction[3].

In “Delhi Judicial Service Association Tis Hazari Court VS. State of Gujarat[4]”, a three-judge bench, it was held that no person is above the law, no matter whatever his rank or designation may be, for infraction of the criminal law he must face the penal consequences. The Apex court also held that a Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence. The Supreme Court further laid down guidelines that need to be observed in case of arrest of a Judge. They are:

(i) There needs to be an intimation to the District Judge or the High Court, as the case may be, if a Judicial Officer is to be arrested for any offence.

(ii) Only a technical or formal arrest may be affected in case of a necessity for the immediate arrest of a Judicial Officer.

(iii) The District and Sessions Judge of the concerned District and the Chief Justice of the High Court should be immediately informed about the facts of such arrest.

(iv) Without the prior order or directions of the District & Sessions Judge of the concerned District, if available, the Judicial Officer so arrested shall not be taken to a police station.

(v) Immediate facilities like: communication with his family members, legal advisers and Judicial Officers, including the District and Sessions Judge, shall be provided to the Judicial Officer arrested.

(vi) Except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available, no statement of a Judicial Officer who is under arrest can be recorded nor any Punchnama can be drawn up nor any medical tests can be conducted.

(vii) Ordinarily, there should be no handcuffing of a Judicial Officer, but in case violent resistance to arrest is offered, or there is an imminent need to effect a physical arrest in order to avert danger to life and limb, the person may be handcuffed. In such a case, an immediate report should be made to the District and Session Judge concerned, and also to the Chief Justice of the High Court. Here, the burden of proof would be on the Police to establish the necessity for effecting the physical arrest and handcuffing the Judicial Officer and if it is 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.

In conclusion, yes a Judge can be arrested if found guilty of an offence because no one is above the law in the eyes of the law.

[1] 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.”

[2] AIR 1965 SC 1651

[3]  Rachapudi Subba Rao vs. Advocate General, A.P., (1981) 2 SCC 577

[4]  (1991) 4 SCC 406

This article is authored by Pankhuri Pankaj, student of BA LLB at Vivekananda Institute of Professional Studies (GGSIPU affiliated):

Also Read – Judicial Services Examination – What and How to prepare?

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