Monday, 21 September 2020

Whether protection under Judges (Protection) Act, 1985 is available to Ex-Judge?

 Reference to Sub-section 1 of Section 3 of the Judges (Protection) Act, 1985 in verbatim is important and relevant. The provision reads as under:

“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.

XXXXXXXX”

It is apparent that sub-section 1 of Section 3 of Judges (Protection) Act, 1985 directs

that no Court shall entertain 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, or in the course of,

acting or purporting to act in the discharge of his official and judicial duty or function.

It is apparent on perusal of the impugned orders, and not disputed, that the Sub-

Divisional Judicial Magistrate (Respondent No.1 & 4) was acting in discharge of his judicial

duty while passing the impugned orders. The orders might be illegal, however, law provides

appropriate remedies to the petitioner to challenge the said orders. The actions of the Judge,

however, stand protected by virtue of the Judges (Protection) Act, 1985 (subject to the

provision of sub-section 2 of Section 3 of the Act of 1985).

9. A conjoint reading and understanding of the Act of 1850 (supra) and the Act of 1985

(supra) make it clear that protection available to a Judge under Judicial Officers’ Protection

Act, 1850 is in respect of any action taken in good faith; whereas the protection available

under the Judges (Protection) Act, 1985 is absolute and is available not only to a sitting

Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while

discharging his official or judicial functions.

THE GAUHATI HIGH COURT

Case No. : WP(C) 3057/2020

RAHENDRA BAGLARI Vs THE SUB-DIVISIONAL JUDICIAL MAGISTRATE (M) AND 3 ORS.


BEFORE

HON’BLE THE CHIEF JUSTICE MR. AJAI LAMBA

Dated:15.09.2020

The Court proceedings have been conducted through Video-Conference.

2. This writ petition has been filed to seek issuance of a writ in the nature of certiorari for

quashing order dated 20.07.2020 whereby direction was issued to the petitioner to show

cause as to why the dead cow was disposed of without informing the trial Court.

The petition also seeks quashing of order dated 31.7.2020 whereby the petitioner was

asked to show cause as to why contempt proceedings be not initiated against him for not

complying with order dated 28.07.2020 issued in connection to giving zimma of four seized

vehicles in connection with Gingia PS case No.92/2020.

For the reasons given below the controversy raised by passing of the impugned

orders; or the issues that arise on account of judicial adjudication in passing of the impugned

orders are not required to be referred to.

3. I have taken judicial notice of the fact that the petition has been field by one Sri Rahendra Baglari, ASI, Gingia Police Station.

The respondents in the petition are:-

(1) Sub-Divisional Judicial Magistrate (M), Biswanath Chariali, who passed the

orders impugned by virtue of this petition;

(2) Gauhati High Court through Registrar General;

(3) Registrar General of Gauhati High Court; and

(4) Sri Amarendra Hazarika who at the point in time when the impugned order was issued, was posted as Sub-Divisional Judicial Magistrate (M) in Biswanath

Chariali, district Biswanath Chariali.

It is therefore, apparent that the writ petition is directed against a Judicial Magistrate who passed orders in his judicial capacity. The Sub-Divisional Judicial Magistrate has not only

been impleaded by designation, but also by name so as to impute personal action.

Likewise, the Gauhati High Court and Registrar General have been impleaded as parties.

4. I fail to understand the purpose of impleading the Gauhati High Court or the Registrar

General as respondents in the matter. Learned counsel for the petitioner also has not been

able to justify impleading the High Court or the Registrar General.

5. So far as Sub-Divisional Judicial Magistrate is concerned, it is apparent that he passed

the judicial orders while dealing with a judicial matter arising out of Gingia PS Case No.92/2020.

6. At the outset, I would like to refer to paragraphs 9 and 10 of judgment rendered by

Hon’ble Supreme Court of India in Anowar Hussain vs. Ajoy Kumar Mukherjee and others,

AIR 1965 SC 1651 in context of provisions of Judicial Officers’ Protection Act, 1850. The said

paragraphs 9 and 10 read as under:

“XXXXXXXXXXXX

9. In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and he was on that account protected by the Judicial Officers' Protection Act, 1850. Section 1 of the Act, in

so far as it is material, provided:

“ No Judge, Magistrate, ° ° ° 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; ”.

10. The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their duties as such officers. The statute it must be noticed, protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial  duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction

to do or order the act complained of. If the act done or ordered is not within the limits of

his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still

protected, if at the time of doing or ordering the act complained of, he in good faith

believed himself to have jurisdiction to do or order the act. The expression “jurisdiction”

does not mean the power to do or order the act impugned, but generally the authority of

the Judicial Officer to act in the matter Tayen v. Ram Lal, ILR 12 All 115.

XXXXXXXXXXXXX”

(emphasised by me)

7. I would also like to refer to contents of paragraph 14 of a later judgment i.e. (1999) 2 SCC 577, Savitri Devi vs. District Judge, Gorakhpur and others. Paragraph 14 reads as under:

“XXXXXXXXXXXX

14. Before parting with this case, it is necessary for us to point out one aspect

of the matter which is rather disturbing. In the writ petition filed in the High

Court as well as the special leave petition filed in this Court, the District Judge,

Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are

shown as respondents and in the special leave petition, they are shown as

contesting respondents. There was no necessity for impleading the judicial

officers who disposed of the matter in a civil proceeding when the writ petition

was filed in the High Court; nor is there any justification for impleading them as

parties in the special leave petition and describing them as contesting

respondents. We do not approve of the course adopted by the petitioner which

would cause unnecessary disturbance to the functions of the judicial officers

concerned. They cannot be in any way equated to the officials of the

Government. It is high time that the practice of impleading judicial officers

disposing of civil proceedings as parties to writ petitions under Article 226 of the

Constitution of India or special leave petitions under Article 136 of the

Constitution of India was stopped. We are strongly deprecating such a practice.

XXXXXXXXXXXXX”

(emphasised by me)

8. Reference to Sub-section 1 of Section 3 of the Judges (Protection) Act, 1985 in verbatim is important and relevant. The provision reads as under:

“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.

XXXXXXXX”

It is apparent that sub-section 1 of Section 3 of Judges (Protection) Act, 1985 directs

that no Court shall entertain 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, or in the course of,

acting or purporting to act in the discharge of his official and judicial duty or function.

It is apparent on perusal of the impugned orders, and not disputed, that the Sub-

Divisional Judicial Magistrate (Respondent No.1 & 4) was acting in discharge of his judicial

duty while passing the impugned orders. The orders might be illegal, however, law provides

appropriate remedies to the petitioner to challenge the said orders. The actions of the Judge,

however, stand protected by virtue of the Judges (Protection) Act, 1985 (subject to the

provision of sub-section 2 of Section 3 of the Act of 1985).

9. A conjoint reading and understanding of the Act of 1850 (supra) and the Act of 1985

(supra) make it clear that protection available to a Judge under Judicial Officers’ Protection

Act, 1850 is in respect of any action taken in good faith; whereas the protection available

under the Judges (Protection) Act, 1985 is absolute and is available not only to a sitting

Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while

discharging his official or judicial functions.

If in passing every wrong or illegal judicial order, the concerned Judge is sued before

the higher judicial forum, it shall result in demoralising the judicial officers, particularly, at the

adjudicating level, other than the public losing faith in the judiciary. In case a purported illegal

order is passed on wrong facts, law always provides for filing of appeal, revision or writ

petition against the ORDER, however, not by impleading the Judge to seek his accountability.

It is for this purpose that the Judges have been given protection by legislations such as Act of

1850 (supra), and Act of 1985 (supra).

10. This Court has taken a serious view of the nature of pleadings in this matter. Not only

the High Court and the Registrar General of the High Court have been imleaded, apparently

without any legal and factual cause, de hors the Central Legislation of 1850, and the Act of

1985, even the Judicial Officer who passed the judicial orders in his capacity as a Judicial

Officer has been impleaded by designation, and by name. It shows complete disregard, on

the part of the petitioner, to the protection given to every Judicial Officer/Judge, in service or

not, discharging judicial functions, by the two central legislations.

This Court cannot permit proceedings of this nature to continue by virtue of which,

while challenging a judicial order, Judicial Officers are impleaded, including by name, and by

designation, and also the High Court. I have taken notice of the fact that other than the four

persons mentioned in earlier part of the order, no other person has been named as

respondents. It is thus clear that for passing a judicial order in a pending judicial proceeding

the Judicial Magistrate by name and designation; and the High Court and the Registrar

General are being held accountable, which is not permissible in law.

11. In view of the above, this petition is dismissed with costs, in the sum of Rs.10,000/-

(Rupees ten thousand) only, to be recovered from the salary of the petitioner, and deposited with Assam State Legal Services Authority within 45 days from today.

Let a copy of this order be conveyed to the Superintendent of Police, Biswanath Chariali

who shall ensure that the cost amount is deducted from the salary of the officer and the said

fact is carried to his ACR.

12. This, however, does not curtail the liberty of the petitioner of challenging the orders

impugned by virtue of this petition before appropriate forum, however, without impleading

Judicial Officer or the High Court. The petitioner would be at liberty to avail the legal

remedies as provided in law in challenge to the orders impugned by virtue of this petition,

however, after showing deposit receipt of the cost amount.

13. This Court makes it clear that this Court has not considered the merit or demerit in the impugned orders passed by the Judicial Magistrate. Merit or demerit would be considered by appropriate forum in appropriate proceedings to be initiated by the petitioner, if so advised.


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