BY : AKSHYA GURNANI
“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…”, the Court reasoned.
The Gauhati High Court recently reiterated the position of law that a judicial officers are protected from legal action, civil or criminal, in respect of orders passed and other acts done in the course of their judicial functioning (RahendraBaglari v. Sub-Divisional Judicial Magistrate and ors).
Chief Justice AjaiLamba reasoned, “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.”
The Court explained further, “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 and Act of 1985.”
Interestingly, the petitioner, in this case, had not only personally impleaded the judicial officer who passed an adverse order against him, but also the High Court and the Registrar General of the High Court.
Holding this to be unacceptable, the High Court records that it has taken a “serious view of the nature of proceedings”.
It was stated, “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.”
The Court concluded that the proceedings were unsustainable given Section 1 of the Judicial Officers’ Protection Act, 1850 and Sub-section 1 of Section 3 of the Judges (Protection) Act, 1985.
These provisions protect judicial officers and Judges from being criminally prosecuted or sued under civil laws for acts done in their judicial capacity. While the former provision protects judicial acts done in good faith, the latter is an absolute protection for acts done by judges in the course of their official or judicial duties.
In view of the same, the case moved against the Judicial Officer and others was dismissed with costs of Rs 10,000.As the petitioner was a police officer, the Chief Justice ordered that the costs be recovered from his salary.
The writ petition before the High Court sought a quash of two orders passed by a Sub-Divisional Judicial Magistrate. The first order required the petitioner-police officer to show cause as to why a dead cow (the subject of a criminal case) was disposed of without informing the court. The second sought to institute contempt proceedings against him for his actions and issued a show cause notice against him requiring him to justify his act.
While imposing costs, the Chief Justice clarified that the petitioner could still approach the appropriate appellate court challenging the orders passed by the Magistrate if necessary. However, the judicial officer who issued the order could not be impleaded by name, the Court emphasized.