Whether Judicial Officer Can be Arrested? Amaresh Patel BASICS OF LAW Thu, Mar 05, 2020, at ,11:45 AM Whether Judicial Officer Can be Arrested? Before answering this question, it shall be noted that The Judicial Officers Protection Act, 1850 provides protection to the judicial officers acting in good faith in their judicial capacity. Further, the Parliament passed the Judges (Protection) Act, 1985 to provide certain more protection to Judges and Magistrates in addition to what was already available to them under the Judicial Officer Protection Act, 1850. The Judges (Inquiry) Act, 1968 has been enacted by the Parliament to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith. This Act does not cover the matter of protection to the Judicial Officers of the subordinate judiciary and exclusively deals with the matters like misbehaviour or incapacity of the Judges of the Supreme Court and High Courts. However, apart from the protection of Judicial Officers under several acts, the leading Supreme Court Case on the subject in Delhi Judicial Service Association vs. State of Gujarat, (1991) 4 SCC 406- Three Judge Bench, issued certain direction for the arrest of Judicial Officers as under:- (A) A Judicial Officer should be arrested for any offence under intimation to the District Judge or the High Court as the case may be. (B) In case of necessity for the immediate arrest of a Judicial Officer, only a technical or formal arrest may be effected. (C) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court. (D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District and Sessions Judge of the concerned district, if available. (E) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisers and Judicial Officers, including the District and Sessions Judge. (F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests are conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available. (G) Ordinarily, there should be no handcuffing of a Judicial Officer. Powers of Judicial Officers u/s. 228 IPC & Sec. 345 Cr.P.C. In case any person intentionally offers any insult or causes any interruption in the judicial functioning of the court, the presiding officer may proceed summarily against such person u/s. 345 Cr.P.C. and may punish him u/s. 228 of the IPC. Magistrate issuing NBW against acquitted accused-Not entitled to protection Where an accused was convicted by the trial court but on appeal was acquitted by the Allahabad High Court and even after the order of the High Court having been notified to the Judicial Magistrate concerned, he issued NBW against the acquitted accused and got him arrested, it was held by the Allahabad High Court that a committal Magistrate complying with an order certified u/s. 425 does not act under that provision but only performs a ministerial and not a judicial or a protected executive function. If he negligently signs arrest warrants against acquitted persons he is not protected by Sec. 1 Judicial Officers’ Protection Act, 1850. Even if he does so out of the negligence of his subordinate he will still be liable for damages. He will not be relieved of his liability by the failure to implead that subordinate in the suit for damages, even if the latter can be considered a joint tortfeasor. See--- State of U.P. vs. Tulsi Ram, AIR 1971 All 162. Judicial Officer’s Prosecution for defamatory comments on Transfer Application & Sec. 197 Cr.P.C. (A) Where the appellant, a Munsif Magistrate by a letter to the District Judge submitted his remarks against the allegations made by the respondent, an advocate in a transfer petition for transfer of a suit pending in appellant’s Court and while so doing called the respondent ‘rowdy’. “a big gambler” and “a mischievous element” and on this letter being read in open court, the respondent filed criminal complaint against the appellant without the sanction contemplated u/s. 197 Cr.P.C., it was held that the act complained of had no connection with the discharge of official duty by the appellant. Hence Sec. 197 Cr.P.C. was not in any way attracted. See--- B.S. Sambhu vs. T.S. Krishnaswamy, AIR 1983 SC 64. (B) Protection to Judges u/s. 77 IPC---- 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.