Tuesday, 10 May 2016

Whether prosecution for defamation can be initiated against Judge for comments made by him in Judgment?

 According to Dr. Saha, the observations of the Supreme Court in the
case of Malay Kumar Ganguly (supra) established that the comments which
were made against him in the judgment delivered on 19 March 2004 were
defamatory and under such circumstances cognizance should have been taken
and process ought to have been issued. In the event the respondent no. 1 wanted
to invoke protection granted under the said statute, it could be tested whether
such comments are made in discharge of his judicial duty or function or not at
that stage.
43. In my opinion, comments forming part of a judgment per se would
constitute “words spoken” or “act committed” in discharge of judicial duty. There
is no allegation in the subject complaint that such comments were prompted or
motivated by any external factor, as was in the case of Ravi Shankar
Srivastava (supra). Sub-section (1) of Section 3 of the 1985 would thus prohibit any Court from entertaining any criminal or civil action for use of any expression
used in a judgment. So far as the provision of sub-section (2) of Section 3 of the
1985 Act are concerned, the power to institute civil criminal or departmental
proceeding has been preserved for the Central Government, State Government,
the Supreme Court of India, any High Court or any other authority. The
provisions of Sub-section (2) of Section 3 of the Act, constitute exception to the
provisions of subsection (1) of Section 3. The embargo under Sub-section (1) of
Section 3 of the 1985 Act is on a Court in entertaining any proceeding against a
Judge made in discharge of his official or judicial duty. But Sub-section (2)
thereof permits specified constitutional or statutory authorities to bring such
action, if permitted under the law. In such a proceeding, whether the acts
complained against had reasonable nexus with discharge of judicial or official
duty or function or not could be examined. But a private person is not authorised
under the said provision to initiate action against a Judge by instituting civil or
criminal proceeding in relation to any action taken in discharge of judicial duty.
As I have already observed, comments made in a judgment would ex facie
constitute acts done or words spoken in discharge of judicial duty. The judgment
of the respondent no. 1 itself has been sustained by the Hon’ble Supreme Court.
In the event the construction contemplated by Dr. Saha on the aforesaid
provision is accepted, such construction would render the provisions of Subsection
(1) of Section 3 of the 1985 Act otiose as the protection given therein in
such a situation would only be illusory. In view of the provisions of Sub-section
(1) of Section 3 of the Act, in respect of a complaint instituted by a private individual under Section 500 of the I.P.C. containing allegation that comments
made in a judgment constitutes offence under the aforesaid provision, a learned
magistrate would have no jurisdiction to entertain the same.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON’BLE JUSTICE ANIRUDDHA BOSE
C.R.R. No. 2755 OF 2011
KUNAL SAHA (Dr.)
Vs.
MR. GORA CHAND DEY JUSTICE (RETIRED) & ANR.

Citation;2016 CRLJ(NOC)126 Cal
Judgment On: 21.09.2012
ANIRUDDHA BOSE, J.:-

1. The petitioner is the husband of Anuradha Saha, who breathed her last on
28 May 1988, after having fallen ill while on a social visit to India. The petitioner
is a medical practitioner settled in the United States of America, doing research
in HIV/AIDS. The deceased wife of the petitioner had developed fever with skin
rash on or about 25 April 1988 while in Kolkata on a social visit to this country.
For this purpose, Dr. Sukumar Mukherjee, a medical practitioner was consulted.
Her condition did not improve, and had in fact deteriorated, and other doctors
had also been consulted in Kolkata, where she was being treated in a private hospital. Eventually she was shifted to a hospital in Mumbai on further
deterioration of her condition, where she passed away.
2. The petitioner had instituted an action alleging medical negligence under
the Consumer Protection Act, 1986 before the National Consumers Disputes
Redressal Commission, (the Commission) claiming compensation of
Rs.77,76,73,500/- with interest, impleading as respondents in the proceeding
the three medical practitioners who treated her, as well as the hospital where she
was treated in Kolkata. A criminal complaint was also instituted against the three
medical practitioners in the Court of the learned Chief Judicial Magistrate,
Alipore by one Malay Kumar Ganguly, who it appears is a relative of the
petitioner. The said criminal complaint was tried on evidence and the learned
Chief Judicial Magistrate found two of the three medical practitioners arraigned
as accused before him guilty of commission of offence under Section 304-A of the
Indian Penal Code, 1860. The third medical practitioner was acquitted. The
convicted doctors were sentenced to undergo simple imprisonment for three
months and to pay a fine of Rs.3000/-, in default of which the convicted persons
were directed to undergo a simple imprisonment for a further period of 15 days.
3. The doctors who were held guilty appealed against the judgment of
conviction before the learned Sessions Judge at Alipore and the complainant filed
a criminal revisional application for enhancement of punishment imposed on the
two doctors held guilty. Another appeal questioning legality of the judgment of
acquittal of one of the three doctors was filed before this Court by the complainant. The appeals against the judgment of conviction which were filed
before the learned Sessions Judge were eventually heard by a learned Single
Judge of this Court upon withdrawing the same from the Court of the learned
Sessions Judge, and these appeals were heard along with the other proceedings.
4. In a judgment and order passed on 19 March 2004, the appeals preferred
by the two doctors were allowed and the revisional applications as also the
appeal against acquittal filed by the complainant were dismissed by the
respondent no. 1, who at that point of time was a Judge of this Court. The
complainant appealed against this judgment and order before the Supreme Court
of India. The Commission also had dismissed the complaint of the petitioner by a
judgment and order dated 1 June 2006. The petitioner preferred an appeal
against this order of dismissal passed by the Commission also before the
Supreme Court.
5. The Hon’ble Supreme Court, in a common judgment delivered on 7 August
2009 [(i) Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Ors., (ii)
Kunal Saha (Dr.) Vs. Dr. Sukumar Mukherjee & Ors.], reported in (2009) 9
SCC 221, dismissed the criminal appeals, and thus the judgment of this Court
acquitting the doctors of the criminal charges was sustained. As regards the
claim of the petitioner before the Commission, the Supreme Court found the
opinion of the Commission that there was no negligence on the part of the
hospital or the doctors to be wrong. The matter was remitted to the Commission
for the purpose of determining the quantum of compensation. 6. In the judgment delivered on 19 March 2004, the Hon’ble Single Judge of
this Court had made certain comments and observations concerning conduct of
the petitioner himself, in relation to the treatment of his deceased wife, as well as
certain motives were attributed in bringing the actions. Such comments and
observations have been recorded in the judgment of the Supreme Court and
found to be “not borne out by the records” and “otherwise highly undesirable”. In
the proceeding, out of which this revisional application arises, the petitioner had
alleged that such comments in the judgment are defamatory. According to the
petitioner, such comments were widely published in the news media, and such
negative publicity denigrated the petitioner’s image and lowered his prestige
before the public and had brought endless pain and anguish for him. The
petitioner, being aggrieved by such comments had filed a complaint alleging
offence under Section 500 of the I.P.C. in the Court of the learned Chief
Metropolitan Magistrate, Kolkata which was registered as Case No. C/9938 of
2011, against the Hon’ble Judge, who had retired by then. Prayer of the
petitioner in this petition was:-
“It is therefore most humbly prayed that this Learned Court may gracious be
pleased to take cognizance of the offence alleged and issue process against
the accused under Section 500 of the Indian Penal Code and in the event of
appearance of the accused; try, convict and sentence the accused as per law
and justice and further be pleased to pass further orders of adequate
compensation under Section 357 and of Costs of the litigation under Section
359 of the Code of Criminal Procedure against the accused and in favour of
the petitioner and further be pleased to pass such other order or orders that
Your Honour may think fit and proper in the interest of justice. And for this act of kindness your petitioner, as in duty bound, shall ever
pray.”
7. The observations and comments made in the judgment delivered by the
respondent no. 1, which the petitioner alleges to be defamatory, were to the effect
that the wife of the petitioner had died because of interference of the petitioner
only. There were also observations to the effect that the petitioner had filed the
proceedings against the doctors in Kolkata with the sinister motive to make
financial gain by bringing in the American medical insurance system to India.
The petitioner’s complaint was heard by the learned 8th Metropolitan Magistrate.
Before the leaned magistrate, the petitioner himself was examined at the initial
stage along with two other witnesses, being Mihir Banerjee and Ratna Ghosh.
The petitioner in his initial deposition before the learned magistrate stated that
after the delivery of the said judgment of this Court, his prestige was lowered
before the society. Mihir Banerjee stated an oath that before 2004 he had good
impression regarding the petitioner but after going through the judgment of the
Hon’ble High Court at Calcutta passed on 19 March 2004, image of Dr. Kunal
Saha was lowered in his eyes. He further stated in his initial deposition that in
the year 2006 while he was travelling in train in an AC two tier compartment, he
had met the Hon’ble Judge who had delivered the judgment. After talking about
various matters he had asked about Dr. Saha and the Hon’ble Judge told him
that Anuradha Saha had expired due to wrong treatment of her husband Dr.
Saha, who obstructed smooth running of administration in hospital. He also
deposed that the respondent no. 1 had told him that Dr. Kunal Saha was trying to open the gate for foreign insurance companies’ business in India. The evidence
of Ratna Ghosh at the initial stage was to the effect that she read the judgment of
the High Court in the month of March 2004 in which it was stated that Dr. Kunal
Saha was responsible for the death of his wife. After reading the judgment, she
stated in her initial deposition that she and other people were shocked and
prestige and respect of Dr. Kunal Saha was lowered down in their eyes. Both
these witnesses however stated in their initial deposition that after meeting Dr.
Saha later, they became respectful of him again.
8. The learned Court below dismissed the petition by an order passed on 10
August 2012, finding that there was no ingredient of Section 500 of the Indian
Penal code in the said case. It was also observed in the order of dismissal that a
Judge of a High Court had privilege to make certain remarks at the time of
passing the judgment while discharging his public duty as a Judge and the
remarks passed in the judgment of 19 March 2004 were merely observations
while passing a judgment without any malafide intention. In the order impugned,
it was recorded that the learned Court below found it difficult to accept that the
Hon’ble Judge had passed such remarks in the order to hamper reputation of the
complainant.
9. There were two other grounds on which the petition of complaint was
dismissed. The first ground was on the law of limitation based under Section
468(2)[c] of the Code of Criminal Procedure (1973 Code). The other ground for
rejection was that the complaint was filed without obtaining sanction under Section 197 of the Code. The petitioner made an application for review of this
order by a petition filed on 12 August 2011. This application was filed mainly on
the aspect of rejection of the petition on the ground of lack of sanction under
Section 197 of the Code. A judgment of the Supreme Court in the case of Mohd.
Akram Ansari Vs. Chief Election Officer & Ors. reported in 2008 (2) SCC 95
was referred to in support of the review petition. Primarily, the review petition
was based on another judgment on the same point in the case of Anjani Kumar
Vs. State of Bihar reported in 2008(2) SCC (Cri) 582. In this judgment, it has
been observed that to obtain protection conferred by Section 197 of the 1973
Code, there must be reasonable nexus between discharge of public duty and the
acts complained against. This review petition was rejected on 16 August
2011mainly on the ground that the learned magistrate did not have inherent
power to review his own order.
10. In the judgment reported in (2009) 9 SCC 221, the Supreme Court
observed:
“190. We must express our agony in placing on record that the Calcutta High
Court in its judgment had made certain observations which apart from being
not borne out from the records, are also otherwise highly undesirable. Some
of the conclusions arrived at by the High Court are not based on the findings
emerging from the records.
191. These conclusions are as produced as under:
“On 24-5-1998, it was noted ‘wounds were healing well, epidermal
islands have appeared over palms, soles and trunk….no obvious
Pseudomonas Colony like before.’ All these noting in the record of Breach
Candy Hospital indicate that her skin had started healing and undoubtedly, such healing was the outcome of effective treatment. This betterment of skin
lesion in the instant case could have been due to timely and effective
treatment, undoubtedly with steroids. This may indicate the benefit of the
treatment at Calcutta….”
It was furthermore stated:
“32. In this connection it is also to be mentioned that the death certificate
alone cannot rule out the possibility of accidental, suicidal or homicidal cause
of the death. A post-mortem examination alone could rule out the possibility
of these three kinds of death….On the other hand, the improvement of
Anuradha as noticed before 25-51998 indirectly supports the argument that
the treatment at Calcutta was at best not wrongly directed.
119….But in the present case, it indicates that there was no fixed treatment,
and no faith was reposed on any of the accused doctors and
overzealousness of the patient party practically brought the untimely death
of a young lady.
192. The High Court observed that Anuradha died because of interference of
Kunal. Such an observation was made on the basis of some representations
although his named did not appear in the records of AMRI. It was stated:
“124. At the close, it is to be pointed out that Dr. Kunal Saha did not repose
faith on any institution as can be ascertained from his conduct discussed
hereinabove in detail. He also failed to take the investigating agency of this
country into confidence and in Para 25 of the complaint, it was noted, ‘that
the accused persons are highly influential and are likely to interfere with the
investigation and as such, the complainant would be left with no other
alternative than to institute the complaint before the highest Magistracy of
the Sessions Division of 24 Parganas (South)’. It is rightly contended by the
learned counsel appearing on behalf of the accused doctors that such an
action may lead to two conclusions:
(i) The complainant has no confidence on the police investigation of this
country, or
(ii) The police investigation could unveil some untold facts or
circumstances leading to the untimely death of Anuradha. Be that as it may, by filing a complaint for the purpose of proving the rash
and negligent act against the three specialized doctors, the complainant
party intentionally took upon themselves a heavy burden of proving the case
which they actually failed to discharge. So it was claimed to be an uneven
battle, which was declared by the complainant party without being aware of
the law on the subject and the consequences. It is needless to mention that
now-a-days there is an attempt amongst the patient party to lodge complaint
against the attending doctors for the purpose of their punishment. On several
occasions the patient party also ransacked the hospitals or chambers of the
doctors and mishandled them on the plea of negligence to duty. In this way
the doctors have been suffering from fear psychosis.”
193. We must also express our great dissatisfaction when the Calcutta High
Court stated:
“121. But it is sufficiently clear that a man of the medical field now residing
at United States with family after acquiring citizenship of that country has
challenged the conduct and integrity of the three Professors. In this
connection, I deem it proper to quote a remark of Lord Denning, M.R. in
Whitehouse v. Jordan.
‘… Take heed of what has happened in the United States. “Medical
malpractice’ cases there are very worrying, especially as they are tried by
juries who have sympathy for the patient and none for the doctor, who is
insured. The damages are colossal. The doctors, insure but the premiums
become very high: and these have to be passed on in fees to the patients.
Experienced practitioners are known to have refused to treat patients for fear
of being accused of negligence. Young men are even deterred from entering
the profession because of the risks involved. In the interests of all, we must
avoid such consequences in England. Not only must we avoid excessive
damages. We must say, and say firmly, that in a professional man, an error
of judgment is not negligent.”
194. Further, the statement made by the High Court that the transfer
certificate was forged by the patient party is absolutely erroneous, as Dr.
Anil Kumar Gupta deposed before the trial court that he saw the transfer
certificate at AMRI’s office and the words “for better treatment” were written by Dr. Balaram Prasad in his presence and these words written by Dr.
Prasad, who told it would be easier for them to transport the patient. In a
case of this nature, Kunal would have expected sympathy and not a spate of
irresponsible accusations from the High Court.”
11. The petitioner had instituted the complaint case before the learned Court
below in the month of August, 2011. To the petition was annexed the text of a
news item published in the bengali daily, Ananda Bazar Patrika of 20 March
2004. In this newsreport, the printout of which appears to have been obtained
after downloading it from the archive website of that newspaper, the said
observations made in the judgment have been substantially reproduced.
12. Dr. Saha, appearing in person assailed the impugned order arguing that
the petition ought not to have been rejected at the threshold and the grounds on
which the petition was dismissed by the learned Court below were erroneous.
According to him, the complaint should have been tried in regular course as a
Judge of the higher judiciary in India does not have absolute privilege or
immunity for all actions taken in discharge of judicial duty. On the aspect of
dismissal of the petition for lack of sanction in terms of Section 197 of the 1973
Code, he has referred to a judgment of the Constitution Bench of the Supreme
Court in the case of K. Veeraswamy Vs. Union of India & Ors. reported in
1991(3) SCC 655. Relying on this judgment, he has argued that after retirement
of a Judge, the fetters placed against prosecution under the aforesaid provision
does not continue. Touching upon merit of the case, he has submitted that the
aforesaid comments or observations were made without any basis in the judgment of the respondent no. 1. According to him, there was no material on
record which would have justified any reference to introduction of foreign medical
insurance companies. On the comment that he was responsible for the death of
his wife, his submission is that he had been making every possible effort to treat
her wife and save her life, and civil liability of the aforesaid medical practitioners
in causing death of his wife stood established before the Supreme Court.
13. Addressing me on the aspect of obtaining sanction under Section 197 of
the 1973 Code, Dr. Saha has argued that sanction of the government is not
necessary in terms of the said section for the purpose of taking cognizance of an
offence alleged to have been committed by a Judge if the act complained against
is not in discharge of official duty, or has no reasonable nexus with discharge of
such duty. On this point, judgments of the Supreme Court in the cases of B. S.
Sambhu Vs. T. S. Krishnaswamy (AIR 1983 SC 64), Ramesh Lal Jain Vs.
Naginer Singh Rana [(2006) 1 SCC 294] and Raj Kishor Roy Vs. Kamleswar
Pandey [(2002) 6 SCC 543) have been referred to. On the allegation against the
respondent no. 1, submission of Dr. Saha is that the comments made in the
judgment, in respect of which he had instituted the complaint, was outside his
course of official duty and had no reasonable nexus with discharge of such duty.
None of these comments, on the basis of which he had founded the action,
according to Dr. Saha, was based on records. There was no material on record to
suggest that the petitioner was responsible for death of his wife. There was no
material on record to suggest that he had brought the medical negligence action before the Commission as well as in the Court of the learned magistrate for the
purpose of introducing or facilitating foreign insurance business. It was wholly
unnecessary, argued Dr. Saha, to suggest that action, the nature of which was
brought by him, would encourage patient parties to ransack hospital or
chambers of the doctors. In substance, argument of Dr. Saha on this point is
that he had made out a prima facie case that the aforesaid observations were
made by the Hon’ble Judge in his judgment going beyond the records of the case
and hence could not be treated to be ex-facie in discharge of his judicial or
official duties. Citing the judgments of the Supreme Court in the cases of
Subramanian Swamy vs Manmohan Singh & another ( AIR 2012 SC 1185)
M.A. Rumugum Vs. Kittu [(2009) 1 SCC 101], he submitted that ordinarily, it
would be premature to quash a criminal complaint in exercise of jurisdiction
under Section 482 of the 1973 Code. As a corollary, his contention is that the
complaint of the petitioner before the learned magistrate should not have been
rejected at the threshold.
14. The relevant provisions of Section 197 of the Code of Criminal Procedure,
1973, to which my attention was drawn by Dr. Saha stipulates:-
“Prosecution of Judges and public servants.-(1) When any person who is
or was a Judge or Magistrate of a public servant not removable from his
office save by or with the sanction of the Government 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- (a) In the case of a person who is employed or, as the case may be, was at
the time of commission of the alleged offence employed, in connection
with the affairs of the Union, of the Central Government;
(b) In the case of a person who is employed or, as the case may be, was at
the time of commission of the alleged offence employed, in connection
with the affairs of a State, of the State Government:”
15. The implication of the said provision was examined by the Supreme Court
in the judgment of B. S. Sambhu Vs. T. S. Krishnaswamy (supra) which has
been relied upon by Dr. Saha. In that case, in connection with an application for
transfer of a suit from one court to another before the District Judge, the District
Judge had called for remarks from the Judge concerned regarding certain
allegations that were made in the transfer petition. In response to such query,
the learned Judge in writing had informed the District Judge that the character
of the Advocate who applied for transfer was not good and he had misbehaved in
open Court making “nonsense” allegations. He had also referred to the Advocate
as a big gambler and a rowdy. This letter was read out by the District Judge in
open Court and the Advocate concerned had filed a complaint before the learned
magistrate alleging that content of the said letter amounted to defamation under
Section 500 of the I.P.C.. Before the magistrate, question was raised as to
whether the Court could take cognizance of the offence without sanction as
contemplated in Section 197 of the 1973 Code. This was negatived by the learned
magistrate and the magistrate’s view was assailed before the High Court under
Section 482 unsuccessfully. The applicant, who was an additional munsiff and
judicial magistrate, first class at the relevant point of time preferred an appeal before the Supreme Court. It was argued on his behalf that the aforesaid
comments were made while acting or purporting to act in discharge of his official
duty and sanction was necessary under the aforesaid provision of the Code under
those circumstances. The Supreme Court however rejected this argument and
held:-
“It is not possible to accept this contention for in our view there is no
reasonable nexus between the act complained of and the discharge of duty
by the appellant. Calling the respondent as ‘Rowdy’ ‘a big gambler’ and ‘a
mischievous element’ cannot 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.”
16. In this judgment the Supreme Court had reiterated the Court’s earlier view
taken in the case of Matajog Dubey Vs. H. C. Bhari reported in AIR 1956 SC 44,
in which it was held:-
“There must be a reasonable connection between the act and the discharge
of official duty; the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that he did it in
the course of the performance of his duty.”
17. A similar issue was also examined by the Supreme Court in the case of Raj
Kishor Roy (supra). In this case, dealing with the defence of a police officer
resisting initiation of proceeding against him under Sections 323/324/504 of the
I.P.C. on the ground that he was acting in discharge of his official duty in relation
to the acts complained against, the Supreme Court held :- “In this case, as indicated above, the complaint was that the 1st respondent
had falsely implicated the appellant and his brother in order to teach them a
lesson for not paying anything to him. The complaint was that the 1st
respondent had brought an illegal weapon and cartridges and falsely shown
them to have been recovered from the appellant and his brother. The High
Court was not right in saying that even if these facts are true then also the
case would come within the purview of Section 197 CrPC. The question
whether these acts were committed and/or whether the 1st respondent acted
in discharge of his duties could not have been decided in this summary
fashion. This is the type of case where the prosecution must be given an
opportunity to establish its case by evidence and an opportunity given to the
defence to establish that he had been acting in the official course of his duty.
The question whether the 1st respondent acted in the course of performance
of duties and/or whether the defence is pretended or fanciful can only be
examined during the course of trial. In our view, in this case the question of
sanction should be left open to be decided in the main judgment which may
be delivered upon conclusion of trial.”
18. In this proceeding, notice was issued upon the respondent no. 1, but he
has not appeared. Learned Public Prosecutor appeared in this matter on behalf of
the State. At the initial stage, Dr. Saha took objection against appearance of the
learned Public Prosecutor in defence of respondent no. 1. But State is also a
party to this proceeding, and the learned Public Prosecutor apprised this Court
that he would confine his submission on legal issues only, and not support the
stand of any of the parties to this proceeding. He specifically submitted that he
was not representing the respondent no. 1. On such submission being made, I
permitted him to make his submissions in this matter. 19. The aforesaid judgments of the Supreme Court establish that in a case
involving allegations against a Judge or a public servant of commission of
criminal act while discharging his official duty, a complaint need not always be
kept suspended for obtaining sanction from the competent authority in terms of
Section 197 of the 1973 Code. The question as to whether a particular act was
committed in discharge of official duty or not in the light of provisions of Section
197 of the 1973 Code has to be examined in the facts of a given case. In the case
of B. S. Sambhu (supra), the complaint against the munsiff was on the charge of
defamation. Though the comments were not made in that case in a judgment,
they were made in response to a query of the District Judge. The movement of
the events in that proceeding was also through the official channel. On the point
of obtaining prior sanction in terms of Section 197 of the 1973 Code, the
Supreme Court found use of the denigrating expressions in respect of the
complainant in that case could not be said to be connected with discharge of
official duty. The principle of law, which in my opinion emerges from the ratio of
these judgments of the Supreme Court, is that if ingredients of an offence is
established, and prima-facie no nexus can be found between discharge of official
duty and commission of an act constituting prima facie as offence, then a
petition of complaint ought not to be rejected straightway, at the threshold in
such circumstances. It should be left for the Judge or the public servant to
justify such act at a later stage of the proceeding that such act was committed in
discharge of official duty. In the event the Court declines to take cognizance of a
complaint alleging criminal charge against a Judge or a public servant, then there ought to be prima-facie application of mind to ascertain if the act
complained against was in discharge of official duty or not. In a case of this
nature, where initial deposition revealed that there was lowering of prestige of the
complainant in the eyes of general public, and part of the initial deposition
revealed that the act complained against was done outside official discharge of
duty, if tested solely on the basis of provisions of Section 197 of the 1973 Code, I
would have had held such rejection at the threshold to be improper. The rejection
of petition of complaint on this ground in my opinion would have been improper,
as the order of rejection does not reveal any application of mind on the part of the
learned Court below in reaching at a finding that those comments, which were
found by the Supreme Court to be irresponsible accusations, could be said to
have been made in discharge of official duty. The learned Public Prosecutor did
not address me much on applicability of Section 197 in connection with the
petition of complaint out of which this proceeding arises, but referred to several
authorities which lay down that discharge of official duty by committing acts in
excess to what would be normal in the circumstances of a given case would not
constitute an offence. I do not consider it necessary to refer to all these
authorities as they restate an established principle of law. But on this point
again, it is not possible for me to presume that it was on this ground the petition
of complaint was rejected. The order of rejection does not reveal so. Under
ordinary circumstances, that could have been a preliminary defence, if the
learned magistrate had taken cognizance and issued process, and without any
application of mind on the part of the learned magistrate on this specific point, it would not be possible for me in exercise of revisional jurisdiction to come to a
specific finding that such comments were in excess of what would have been
ordinarily required in discharge of official duty, and not beyond discharge of
official duty.
20. I also do not think the learned Court below ought to have rejected the
petition on the ground that a Judge of a superior Court enjoys privilege in the
nature of absolute immunity against criminal proceeding for acts done while
discharging official duty. In the decision of the Constitution Bench of the
Supreme Court in the case of K. Veeraswami (supra), it has been held that the
Judges enjoy no special protection from criminal proceedings, except in regard to
the offence of corruption when sanction for criminal prosecution is required. In
the event a judicial act is motivated by certain external factors which may
eventually result in commission of an offence, then such immunity would erode.
But this allegation is not there in the petition of complaint, and I do not consider
it necessary to deal with such issue in this judgment.
21. The learned Court below in the order by which the petition of complaint
was rejected, held that the Judge of a High Court has privilege to make remarks
at the time of passing a judgment in discharge of his official duty as a Judge. But
in the order, source of such privilege has not been spelt out. I do not find any
source of such privilege in common law, as applicable to this country. The
statutes under which special immunity has been granted I shall discuss in this judgment. Privilege of this nature could be traced to Section 77 of the I.P.C., so
far accusation is under criminal law, which stipulates:-
“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.”
22. Dr. Saha on this point has argued that the aforesaid comments in the
judgment could not be made in good faith as the highest Court of the land has
found these comments to be irresponsible accusations. His further submission is
that in the event the respondent no. 1 wanted to defend his action on the ground
of having made the said comments in good faith, he ought to have had taken the
defence himself and good faith could not have been presumed to be the
motivating factor behind such comments, particularly since the Supreme Court
had found such comments to have been made unsupported by any material on
record. In support of this submission he has relied on the judgment of the
Supreme Court in the case of In Re: K. Sundaram reported in AIR 2001 SC
2374. In this decision, the Supreme Court quoted a passage from an earlier
judgment, being the case of Harbhajan Singh Vs. State of Punjab reported in
AIR 1966 SC 97. In this judgment, it has been held:-
“There is no doubt that the mere plea that the accused believed that what he
stated was true by itself, will not sustain his case of good faith under the
Ninth Exception. Simple belief or actual belief by itself is not enough. The
appellant must show that the belief in his impugned statement had a rational
basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role. If it appears that before
making the statement the accused did not show due care and attention that
would defeat his plea of good faith.”
23. In the order impugned, the learned Court below has not specifically held
that the petition of complaint was being rejected as the comments, complaint
against which were made, were in good faith. But there is suggestion to that
effect in the order, as the learned Court below has observed that it is “very
difficult to swallow that Hon’ble Judge passed such remarks in order to hamper
the reputation of the complainant.” By implication, the learned Court below
attributed good faith as motive behind such comments. On this point also I
accept the submission of the petitioner that it was not proper for the learned
Court below to construe the act to have been done in good faith. The defence of
good faith in this case, if the defence of the respondent no. 1 was founded on this
principle, was required to be taken by the respondent no. 1, if he chose to do so,
after cognizance was taken in the event the petition of complaint was otherwise
maintainable. The principle of law enunciated by the Supreme Court in the case
of M.A. Rumugam Vs. Kittu @ Krishnamoorthy (supra) that those who plead
exception must prove it ought to be extended and applied in a case of this nature
at the time of taking cognizance, unless of course a clear-cut case of good faith
can be ascertained ex facie from the available materials on record.
24. Dr. Saha next drew my attention to the initial statements of Mihir Banerjee
made on oath. In the earlier part of this judgment, I have referred to the substance of his initial deposition. Perusal of the judgment delivered on 19
March 2004 was not the sole factor which had shocked him. He had stated in his
initial deposition that he was shocked for the second time when he met the
Hon’ble Judge while travelling in an AC two tier compartment in a train in the
year 2006. In course of conversation with the Hon’ble Judge who had retired by
then, he had asked him about the case of Dr. Saha and he was told by the
Hon’ble Judge that Anuradha Saha had expired due to wrong treatment of her
husband and said Dr. Saha had obstructed the smooth running of
administration in hospital. Relying on this part of the deposition, Dr. Saha had
argued that this submission was made after the Hon’ble Judge had retired from
his service and this statement could not be said to have been made in discharge
of official duty and hence the learned magistrate should have taken cognizance
and issued process on the basis of this part of the deposition. According to Dr.
Saha the learned Court below had ignored this part of the initial deposition
altogether and for this reason alone the impugned order ought to be set aside
and proceeding against the respondent no. 1 should have been started, upon
taking cognizance of complaint of the petitioner.

25. Learned Public Prosecutor has submitted that if this was the basis of Dr.
Saha’s complaint, then the order of rejection of the petition of complaint at the
threshold ought not to have been passed. But this was not the foundation of his
complaint. Though at the time of deciding on the question of taking cognizance,
the Court has to consider both the content of the petition as well as the statements made in initial deposition, if the initial deposition contains
statements totally at variance with or foreign to the allegations contained in the
petition of complaint, then the court would have to consider the statements made
in the petition of complaint only. In the petition of complaint, there is no
reference at all in relation to the conversation Mihir Banerjee claims to have had
with the respondent no. 1 on the train. I accordingly find no error in the
approach of the learned court below on this count.
26. The next point I shall examine is rejection of the petition on the ground of
delay. Section 468 of the 1973 Code stipulates:-
“Bar to taking cognizance after lapse of the period of limitation.-(1) Except as
otherwise provided elsewhere in this Code, no Court, shall take cognizance
of an offence of the category specified in sub-section (2), after the expiry of
the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not
exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to
offences which may be tried together, shall be determined with reference to
the offence which is punishable with the more severe punishment or, as the
case may be, the most severe punishment.”
27. The offence of defamation can carry punishment of simple imprisonment of
upto two years. Thus, the limitation period in such a case would be three years, in terms of Section 468(2)(c) of the 1973 Code. The judgment, which according to
the petitioner contains defamatory statements, was delivered on 19 March in the
year 2004. Even if I take into account the initial deposition of Mihir Banerjee
relating to his conversation with the respondent no. 1in the train, then the
alleged defamatory statements were made in the year 2006. The petition of
complaint was filed in the year 2011, well beyond the three year limitation period
specified in sub-clause 2(c) of Section 468 of the 1973 Code. In the petition of
complaint, there is no reason given explaining the delay, on the strength of which
jurisdiction of the Court to condone delay could have been invoked. Dr. Saha,
argued that it was only after the judgment of the Supreme Court was delivered on
7 August 2009, he became certain that the comments made in the said judgment
were defamatory and the defamatory nature of the comments was confirmed and
within two years from the date of delivery of the said judgment the petition of
complaint was instituted.
28. Offence of defamation occurs when the offending statements are published
containing imputation concerning any person harming or intending to harm his
reputation. In this case, the offending comments were published and circulated
by the print and electronic media immediately after the judgment was delivered,
as pleaded in the petition of complaint. The newspaper report which has been
annexed to the petition of complaint is dated 20 March 2004. In his initial
deposition the petitioner has stated:- “After judgment dt. 19.3.04 of Hon’ble High Court Calcutta, my prestige was
lowered down before the society.
So I filed this defamation case against Retired Justice Gorachand Dey. I filed
all documents including newspaper reporting and Judgment of Hon’ble
Supreme Court where the judgment of Hon’ble High Court Calcutta was set
aside.
I pray for process.”
29. The deposition of Mihir Banerjee also discloses that after perusing the
verdict of the High Court dated 19 March 2004 the image of Dr. Saha was
lowered in his eyes. Then he referred to the alleged conversation in the train with
the Hon’ble Judge himself in the year 2006 and stated on oath that he was
shocked for the second time after his conversation with the Hon’ble Judge.
Similarly the initial statements of Ratna Ghosh also disclose that after reading
the judgment she wondered how a doctor like Kunal Saha could kill his wife in
such a manner.
30. The petitioner wants to compute the period of limitation from the date of
delivery of the Supreme Court judgment. The observations of the Supreme Court
regarding the comments made in the judgment of the respondent no. 1 do not
constitute the foundation of the case of the petitioner, though the opinion and
observations of the Supreme Court may have the impact of strengthening the
case of the petitioner. The basic ingredient of the offence of defamation is
statements made in writing or orally which would have harming effect on
reputation and prestige of the complainant in public eye. The aforesaid observations in the judgment of the Supreme Court cannot be construed to have
extended the period within which the action was required to be brought. The
observations made by the Supreme Court in paragraphs 190 to 194 of the report,
at best can be said to have confirmed the stand of the petitioner that those
comments ought not to have been made in the judgment delivered by the
respondent no. 1. But the judgment of the Supreme Court cannot be construed
to have further lowered the reputation or aggravated the impact of the comments
made in the judgment delivered 19 March 2004. The initial deposition of the two
witnesses as well as that of Dr. Saha himself are to the effect that the delivery of
the judgment on 19 March 2004 and its subsequent media coverage had lowered
and harmed reputation of the latter. In the petition there is no explanation for
delay. Otherwise also I do not find sufficient reason for condoning the delay, in
the absence of any explanation disclosed to that effect in the petition of
complaint. Nor can any explanation be inferred from the petition of complaint, a
copy of which has been annexed to the revisional application. I agree with the
finding of the learned Court below that the petition of complaint out of which the
present proceeding arises was barred by limitation. On this ground, the present
revisional application should fail.
31. Now I shall deal with the provisions of the Judges (Protection) Act, 1985.
Since I have already held that the petition ought to fail as there was no error on
the part of the learned Court below in holding that the petition of complaint was
barred on the ground of limitation, it might not have been necessary for me to deal with the provisions of this statute. Learned Public Prosecutor had brought to
the notice of this Court the provisions of the said Act. An additional affidavit has
been filed by the petitioner on this issue, affirmed on 13 March 2012. Elaborate
argument was also advanced before me dealing with application of the said Act in
relation to comments made in a judgment of the High Court. Considering the
sensitivity as well as the importance of the issue involved, I am dealing with this
question also in my judgment, as in my opinion it would not be impermissible for
a revisional Court to take cognizance of a statute having direct bearing on issues
raised in the petition even though such an issue may not have been raised by the
parties and not considered by the Court of first instance.
32. Section 3 of the Judges Protection Act 1985 stipulates:-
“3. 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-section (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-section (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.” 33. Argument of Dr. Saha is that the provisions of the said statute does not
confer absolute privilege or immunity to the action of a Judge in respect of all
acts done in discharge of official or judicial duty or function and sub-section (2)
of the said provision contemplates that the Court or authority before whom a
proceeding against a Judge is brought ought to examine first whether the act
complained against was in discharge of official duty or not before entertaining or
rejecting such an action.
34. He wants this Court to construe the provisions of Section 3 of the 1985 Act
in the same manner the Hon’ble Supreme Court has interpreted the provisions of
Section 197 of the Code in the case of B. Sambhu (supra). His submission is that
in order to become entitled to the protection contemplated under the 1985 Act,
comments made in a judgment ought to undergo the scrutiny first as to whether
such comments were made in a context having reasonable nexus with discharge
of judicial duty. The mere fact that such comments are contained in a judgment
would not confer absolute immunity to the learned Judge who is the author of
the judgment if such comments otherwise warrant criminal action, in this case
being action for defamation. The immunity contemplated in sub-section (1) of
Section 3 of the 1985 Act, contended Dr. Saha, is only a qualified immunity,
curbed by the provisions of sub-section (2) of the Act. He also referred to two
decisions of the Supreme Court of the United States of America to sustain his
claim that the Judge of a superior Court is not immune from a criminal action.
The first judgment referred to is Bracy Vs. Gramley reported in 519 US 1074, 117 S.Ct. 726 (1997). The other one is the decision of the same Court in the case
of US Vs. Will reported in 449 US 200, 66 Led 2d 392, 101 S Ct 471. Two Indian
authorities were also referred by him, being a decision of the Bombay High Court
in the case of Deelip Bhikaji Sonawane Vs. State of Maharashtra & Ors.
reported in 2003 CriLJ 4008 and a judgment of the Rajasthan High Court in the
case of Ravi Shankar Srivastava Vs. State of Rajasthan & Ors. reported in
RLW 2005(3) Raj 1736. The two judgments of the United States of America deal
with rights and obligations of judges under the statutory provisions of that
country. These statutory provisions do not have application in the context of this
country. Neither of these two judgments deals with any common law principle of
immunity of the Judges. In the case of Bracy Vs. Gramley (supra), there is
reference to corruption in judiciary in the United States of America, but the
judgment was not delivered on that issue. The Constitution Bench judgment of
the Supreme Court in the case of K. Veeraswamy (supra) is the leading
authority of this country on the point of immunity of Judges. Hence I do not
consider it necessary to deal with the decisions of the Supreme Court of the
United States of America in this judgment. Dr. Saha had also referred to certain
articles dealing with punishment of judges on corruption charges in different
jurisdictions. While these articles have substantial informative value, for
adjudication of this proceeding they are not required to be considered.
35. In addition, Dr. Saha has argued that judiciary is an organ of the State and
has to act within the same constitutional limitations the two other organs of the
State operate. In support of his submission he has relied on the judgments of the Supreme Court in the cases of Kasturilal Vs. State of J & K reported in AIR
1980 SC 1992 and E.P Royappa vs State of Tamil Nadu (AIR 1974 SC 555) as
well as the judgment of the Supreme Court in the case of Sub-committee on
Judicial Accountability Vs. Union of India & Ors. [(1991) 4 SCC 699].
Referring to these judgments, he submitted that it is the constitutional duty of
the Court to protect Fundamental Rights of the citizens, and the offending
comments made in the judgment of the respondent no. 1 violate his right to
reputation. The 1985 Act cannot provide protection to respondent no. 1 against
criminal consequence for making irresponsible accusations against the
petitioner, he argued, as such protection would violate Fundamental Rights of
the petitioner. The petitioner however has not challenged the constitutional
validity of the 1985 Act in this proceeding. Following the dictum of presumed
constitutionality of a legislative Act, I shall proceed to test the legality of the
petitioner’s complaint upon considering the provisions of the 1985 Act.
36. In the case of Deelip Bhikaji Sonawane, the accused was an assistant
commissioner of police who had been appointed as executive magistrate by the
Government of Maharashtra. In connection with several disputes having criminal
overtone under the provisions of sections 143, 147 and 506 of the I.P.C. an
interim bond was executed by one of the individuals involved in the criminal
case, but this was cancelled on the ground that he was in breach of the
conditions of the said bond. He was called upon to furnish fresh bond with two
sureties, one of whom was to be a Government servant not belonging to Class IV
and another a respectable businessman, for a sum of Rs.3000/- each. The said individual could not execute the bond at the police station and he was taken into
custody. He was released only when the two sureties were arranged. It was found
by the Bombay High court that interim bond could not have been demanded or
asked to be furnished by a person unless and until such person was habitual
offender or was so desperate and dangerous as to render his being at large
without security hazardous to the community. No such case was made out in the
show cause notice in which the said individual was asked to execute the interim
bond.
37. The individual who was detained thereafter had filed a private complaint in
the Court alleging offence under Section 342 of the I.P.C. of wrongful and illegal
confinement by the said executive magistrate. It was dismissed for want of
sanction under Section 197 of the Code by the Court of first instance. The said
order of dismissal was challenged in the Sessions Court unsuccessfully and
thereafter the victim applied before the High Court. Protection was claimed by the
executive magistrate under the 1985 Act. The Bombay High Court held and
directed :-
“10. So far as the respondent No. 2 is concerned, he is claiming
protection under the provisions of the Judges (Protection) Act, 1985.
The said Act is applicable to the Judges which includes a person who
is empowered by law to give a judgment in any legal proceedings.
Under Section 3(1) of the said Act it is provided that no Court can
entertain a 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. However, Subsection
(2) of Section 3 empowers the respective Government or the
Supreme Court of the High Court or any other authority to take such
action whether by way of civil, criminal, or departmental proceedings
or otherwise against any person who is or was a Judge. As per the
finding of the Sessions Court the petitioner was wrongfully and
illegally confined for five days in Chapter Case No. 43 of 1994 which
amounted to an offence under Section 342 of the I.P.C.. The
respondent No. 2 was party to the said proceedings in the Sessions
Court and was represented by his own Advocate. The said
observations were never challenged by him before the higher forum.
We are also of the view that the Respondent No. 2 was acted illegally
without following the procedure under the provisions of Cr.P.C. before
confining the petitioner to jail. In the circumstances, we direct the
State Government to take appropriate action against the Respondent
no. 2 for his wrongful and illegal act.
11. In the circumstances, the petitioner may pursue his remedy for
claiming damage or compensation for deprivation of his personal
liberty as may be open to him under law. He may also, if he chooses,
apply to the appropriate authority for obtaining sanction to prosecute
the respondent No. 2.
12. In the result, we direct the State Government to take appropriate
action against Respondent No. 2 for illegally detaining the Petitioner in
custody without following the procedure established by law. It is open
for the Petitioner to apply for sanction of prosecution of the
Respondent No. 2 to appropriate authority and also to claim damages
or compensation for his illegal detention. Rule is disposed of
accordingly.”
38. In the case of Ravi Shankar Srivastava (supra) the petitioner was a
member Board of Revenue, who sought quashing of First Information Report
registered against him before the Anti-Corruption Bureau, Jaipur. The allegation against him was obtaining illegal benefit for passing an order in a revenue
matter. One of the grounds taken for seeking quashing of the proceeding was
immunity of an act done in discharge of judicial duty under the provisions of
Section 3 of the 1985 Act. The Rajasthan High Court rejected such argument and
the writ petition was dismissed. In this judgment it was held:-
“76. Now so far as the additional protection of Judges is concerned, learned
counsel for both the parties referred Section 3 of the Judges Protection Act
1985. It is no doubt that Sub-clause (2) of Section 3 empowers the State
Government to take action against any person, who is or was a Judge.
77. Applying to the facts and the circumstances of the case, the petitioner is
working as Member of Board of Revenue and admittedly he is discharging
judicial functions. Upon perusal of the source report and contents of the FIR it
reveals that he has accepted the gratification prior to decide the case in their
favour. In view of the judicial propriety if anybody, who is acting as a Judge
out of the court i.e. Board of Revenue sitting in Jaipur accepting the bribe and
which is corroborated by the evidences, in such circumstances an enquiry
can be initiated against a Judge also as per Section 3 Sub-clause (2) of Judge
Protection Act. No illegality whatsoever has been committed by the
respondents regarding lodging of FIR and filing challan.”
39. Section 2 of the Judges (Protection) Act, 1985 provides:-
“In this Act, “Judge” means not only every person who is officially
designated as Judge, but also every person-
(a) who is empowered by law to give in any legal proceeding 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
(b) who is one of a body of persons which body of persons is empowered by
law to give such a judgment as is referred to in Clause (a).” 40. It would be apparent from this definition that the said Act seeks to confer
protection not only upon a person who is holding the post of a High Court Judge,
but other authorities as well discharging judicial duty, like the Assistant Police
Commissioner in the case of Deelip Bhikaji Sonawane (supra), and the member
of Board of Revenue in the case of Ravi Kumar Srivastava (supra). Sub-section
(1) of the aforesaid provision prescribes an embargo on a Court in entertaining or
continuing any civil or criminal proceeding against any person who is or was a
Judge for any act or word committed, done or spoken by him in the course of
discharge of his official or judicial duty or function. This Act thus protects a
retired Judge as well for any act done in discharge of his official or judicial duty
against being arraigned in a Court as a defendant or an accused in any civil or
criminal proceeding. The respondent no. 1 in this proceeding thus is covered by
the said statute in spite of having retired from the post of a High Court Judge.
Now question arises as to whether the petitioner could take recourse to Subsection
(2) of Section 3 of the said Act, and could have required the magistrate to
undertake a preliminary enquiry to ascertain as to whether the offending
comments were made in the judgment in discharge of judicial duty of the
respondent no. 1. The aforesaid Sub-section empowers the Central Government,
State Government, Supreme Court of India, any High Court or any other
authority under any law for the time being in force to take such action against
any person who is or was a Judge. The expression “action” has been clarified in
the said provision as civil, criminal, departmental or otherwise. 41. In my understanding, as I have already observed, the ratio of the decisions
of the Supreme Court to which Dr. Saha has placed reliance on for construing
the provisions of Section 197 of the 1973 Code reflect that while dealing with
such an issue, unless it is apparent that certain acts having criminal overtone
have been committed in actual discharge of official duty, a petition against a
public servant or a Judge in relation to such acts ought not to be rejected at the
threshold for lack of sanction. The concerned public servant or Judge in such
circumstances would be entitled to resist the proceeding on the ground of lack of
sanction at a later stage. Section 197 of the said Code does not bar proceeding
altogether against a public servant or a Judge on the allegation of commission of
an offence in discharge of official duty. To prosecute such person, however prior
sanction is necessary. Section 3 of the Judges Protection Act however places an
embargo upon a Court from entertaining or continuing any civil or criminal
proceeding against a Judge, for any act, thing or word committed, done or
spoken by him in the discharge of his official or judicial duty or function. The
degree of protection afforded under the 1985 Act is greater, which is reflected in
the heading of the section which is indicative of the object of the section.
Preamble to the statute explains the object of the said legislation, “An act for
securing additional protection for Judges and others acting Judicially and for
matters connected therewith.”. The heading of the section is additional
protection of Judges. Use of the expression “additional protection” obviously
implies protection over and above that granted by other laws, which would include Section 197 of the 1973 Code and Section 77 of the I.P.C., and such
protection extends to civil proceedings as well.
42. Dr. Saha had argued that in view of the provisions of Section 3(2) of the
1985 Act, defamation action was permissible in respect of offensive words
contained in a judgment as it was permissible to bring a criminal proceeding in
view of the aforesaid provisions. His case on this point is that the learned
magistrate is an “authority” within the meaning of the said Sub-section to
entertain the said petition, as taking cognizance and issuing process in such a
situation would constitute taking criminal action within the provisions of Subsection
(2). According to Dr. Saha, the observations of the Supreme Court in the
case of Malay Kumar Ganguly (supra) established that the comments which
were made against him in the judgment delivered on 19 March 2004 were
defamatory and under such circumstances cognizance should have been taken
and process ought to have been issued. In the event the respondent no. 1 wanted
to invoke protection granted under the said statute, it could be tested whether
such comments are made in discharge of his judicial duty or function or not at
that stage.
43. In my opinion, comments forming part of a judgment per se would
constitute “words spoken” or “act committed” in discharge of judicial duty. There
is no allegation in the subject complaint that such comments were prompted or
motivated by any external factor, as was in the case of Ravi Shankar
Srivastava (supra). Sub-section (1) of Section 3 of the 1985 would thus prohibit any Court from entertaining any criminal or civil action for use of any expression
used in a judgment. So far as the provision of sub-section (2) of Section 3 of the
1985 Act are concerned, the power to institute civil criminal or departmental
proceeding has been preserved for the Central Government, State Government,
the Supreme Court of India, any High Court or any other authority. The
provisions of Sub-section (2) of Section 3 of the Act, constitute exception to the
provisions of subsection (1) of Section 3. The embargo under Sub-section (1) of
Section 3 of the 1985 Act is on a Court in entertaining any proceeding against a
Judge made in discharge of his official or judicial duty. But Sub-section (2)
thereof permits specified constitutional or statutory authorities to bring such
action, if permitted under the law. In such a proceeding, whether the acts
complained against had reasonable nexus with discharge of judicial or official
duty or function or not could be examined. But a private person is not authorised
under the said provision to initiate action against a Judge by instituting civil or
criminal proceeding in relation to any action taken in discharge of judicial duty.
As I have already observed, comments made in a judgment would ex facie
constitute acts done or words spoken in discharge of judicial duty. The judgment
of the respondent no. 1 itself has been sustained by the Hon’ble Supreme Court.
In the event the construction contemplated by Dr. Saha on the aforesaid
provision is accepted, such construction would render the provisions of Subsection
(1) of Section 3 of the 1985 Act otiose as the protection given therein in
such a situation would only be illusory. In view of the provisions of Sub-section
(1) of Section 3 of the Act, in respect of a complaint instituted by a private individual under Section 500 of the I.P.C. containing allegation that comments
made in a judgment constitutes offence under the aforesaid provision, a learned
magistrate would have no jurisdiction to entertain the same.
44. In the case of Deelip Bhikaji Sonawane (supra), the Court on its own did
not pass any direction, but order was issued upon the State government to take
appropriate action against respondent no. 2 therein for certain acts committed by
him which was found to be illegal and wrong. Leave was also given to the
petitioner therein to apply to appropriate authority for obtaining sanction to
prosecute the respondent no. 2 therein. Thus the Court exercised its power to
direct the State Government to take steps for punishing an offender but did not
assume such jurisdiction itself. In the case of Ravi Shankar Srivastava (supra),
the first information report was filed before a statutory authority. Institution of a
suit or a criminal proceeding in a Court by a private person was not in issue in
that proceeding. In that case there was additional allegation of external factors
prompting a judicial decision. In neither of these two decisions, the Court had
entertained a civil or criminal proceeding at the instance of a private person. In
this proceeding, the words contained in the judgment of the respondent no. 1 is
intricately linked with discharge of judicial duty, and hence the respondent no. 1
is protected under Section 3(1) of the 1985 Act.
45. So far as the present proceeding is concerned, the anguish and anxiety of
the petitioner over the comments made in the judgment has been found to be justified by the Hon’ble Supreme Court. There is no scope on my part for
reassessing the justification of such comment. The Hon’ble Supreme Court found
such comments to be unwarranted. On that count, there is no controversy. But
grievance of the petitioner cannot be redressed in the manner he sought to, by
instituting a defamation action. The reason for this I have discussed in the earlier
part of this judgment.
46. As regards the order of the learned magistrate passed in review, I do not
find any error in that judgment. In the absence of specific power or jurisdiction to
review its own decision, a Court cannot exercise such power. The judgment on
the basis of which the petitioner wanted reconsideration of the order of rejection
lays down principles in the same line as has been held in the judgment in the
case of B. S. Sambhu (supra). No substantive argument relating to rejection of
review petition was also made before me on this point in course of hearing.
47. The instant petition is accordingly dismissed, but without any order as to
costs.
 (ANIRUDDHA BOSE, J.) 
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