Prosecution of Judges

[Hari]

Hi Sir,

If any high court set aside or quashes the order of a lower court then can the lower court judge or the judge passing the illegal order can be prosecuted. If yes how and under which provision of law. Specifically in matrimonial cases lower court judges favor (married) women and even say words like that “I will favor women, I will not take any action on her, Small mistakes can happen by wife etc etc”.

But they write something else in the orders. In a recent hearing I asked the judge to write all what he is saying in the order bit he did nothing.

As there are no cameras installed in COURTs so they (judges) act as dictators and harass Husbands and their relatives. And having pen power can write anything against the accused party and the higher court judges will also support their lobby based on assumption that lower court judge has written correctly.

This is the state of Indian Men. No one listens to merits and simply dismiss the applications in lower courts stating you can appeal in High Court.

This way only the aggrieved party has to run from pillar to post and have to spend a lot of money and time just to get his complaint registered.

Isn’t this harassment of citizens at the hands of judiciary?

Judges should not be punished or dismissed from service for passing any wrong order.

Judges mistake is no mistake in India?

Thanks
Hari

[Dr. Ashok Dhamija]

Please note that the judges have been given protection in the matter of performance of their official judicial duties. It is true that the judges can also commit mistakes. This is clearly seen from a large number of judgments of lower courts which are reversed by the higher courts on regular basis. However, please remember that it is presumed that the judge applies his judicial mind and generally such application of mind may be in a subjective manner. He decides a case on the basis of his own analysis of the factual matrix of a case and the application of the existing provisions of law to those facts (and, also interpreting those laws in the light of the decided case law). While doing so, he may commit some mistakes. But, such mistakes of judgment can be corrected by the higher courts. However, a judge cannot be prosecuted merely because his judgment was reversed, even if his judgment was perverse and his reasoning was incorrect. But, in appropriate cases, if it is found that a judge has deliberately given a wrong judgment in a mala fide manner, or for some consideration or motive (such as bribe), suitable action may be taken against him under law either under the appropriate criminal law (such as the Prevention of Corruption Act) or under departmental proceedings, etc. There have been several cases where judges (in the lower judiciary) have been removed from their posts, or even have been prosecuted for corruption. There are instances when impeachment proceedings were initiated even against a sitting Supreme Court judge or a sitting High Court judge for removal from his post.

However, as mentioned above, judges cannot be prosecuted or acted against merely on the grounds of mistakes of judgment, or because their judgments were wrong or were reversed by higher courts. The law provides protection to them in this regard.

For example, Section 1 of the Judicial Officers Protection Act, 1850, provides as under:

“1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders.—No Judge, Magistrate, Justice of the Peace, 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; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.”

Likewise, Section 3 of the Judges (Protection) Act, 1985, lays down 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.
(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.”

Please note that there is a protection to the judges even for the words spoken by him while acting in the discharge of his duties.

Please also note that even if an offence is allegedly committed by a judge during the discharge of his official duties, he cannot be prosecuted without first obtaining sanction for his prosecution from the competent authority as per the provisions of Section 197(1) of the Criminal Procedure Code (Cr.P.C.), which is reproduced below:

“197. Prosecution of Judges and public servants.— (1) When any person who is or was a Judge or Magistrate or 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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013—
(a) in the case of 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: …”.

It may be pertinent to point out that such protection is provided to the judges only while acting in the discharge of their official duty, such as while exercising judicial functions.
     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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