Can a Judge be Arrested? What are the Procedures & Limitations?

Answer is yes but generally no criminal case shall be filed unless the government first ‘consults’ the CJI, whose assent is imperative.

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Any judge can be arrested as no person whatever his rank, or designation may be, is, above law the Supreme Court says in its order in a 1991 case of the Delhi Judicial Service vs State Of Gujarat & Ors. But the court also spells out guidelines “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”.

The guidelines include intimation to the district judge or the Hon’ble High Court judges  as the case may be; a technical or formal arrest if situations 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 and the Chief Justice of the High Court; not taking the arrested to a police station without prior order; and no registration of the judicial Magistrate’s statement nor any medical test except in the presence of a legal adviser as well as another judicial officer of equal or higher rank. Besides here very important point is that the officer should not be handcuffed except in the event of resistance to arrest. But the onus on physical arrest or handcuffing is on the police official making the arrest.

Leading Judgement

The leading case regarding this is DJS Association v. State of Gujarat & Ors., AIR 1991 SC 2176, and this Court held that the power to punish for contempt is vested in the judges not for their personal protection only, but for the protection of public justice & interest , whose interest requires that decency and decorum is preserved in courts of justice. Those who have to discharge duty in a Court of Justice or court of law  are protected by the law, and shielded in the discharge of their duties; any deliberate interference with the discharge of such duties either inside the court as well as outside the court by attacking the presiding officers of the court would amount to criminal contempt side by side  the courts must take serious cognizance of such conduct.

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Statutory provisions

Section 3 of the Judges (Protection) Act of 1985 protects judges and former judges of the Hon ’ble  Supreme Court and the Hon ’ble  High Courts from any civil or criminal proceedings for any act, thing or word committed, done or spoken by him in the course of their judicial  service duty or function. No court shall entertain such kind of  complaints.

Section 77 of the IPC exempts judges from criminal proceedings for something said or done during the judicial service duties.

However, the government can initiate criminal proceedings against a sitting as well as  former judge of a Hon ’ble  Supreme or Hon ’ble  High court under sub section (2) of Section 3 of the Judges (Protection) Act, 1985 if it can produce material evidence to show that a judgment was passed after taking a bribe.


Md Sahabuddin Mondal

Junior Advocate, Calcutta High Court

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