The Judicial Officers Protection Act 1850

[Cites 17, Cited by 0]

Law Commission Report

The Judicial Officers Protection Act 1850

% LAW CO:w:IMIssION OF INDIA

ONE HUNDRED AND FOURTH REPORT

.ON

THE JUDICIAL OFFICERS'
PROTECTION ACT, 1850

-» v------C-1-c-n'------------A --- A A
4
¢

10th October, 1984

GOVERNMENT OF INDIA K
Ministry Of Law, Justice and Company Affairs

Con-igenda to the 104th Report on the "Judicial Oﬂicers

_\.l

Protection Act, l850"

In the contents page against chapter 4 for the title "Preliminary matters"
the title "Short Title and Extent" should be substituted.

In the 4th line of para 1.4 on page 1, the footnote ﬁgures "2-2" should
be substituted by the ﬁgures "2-3".

. On page 3, in footnote 2, the alphabet "s" should be added to the word

"Chapter".

. On page 6 in para 6.1 in line 5 above and at the end of the word

"adopted" the ﬁgure "4" should be inserted for the ﬁgure "3" and at
the end of the word "expresses" the ﬁgure "4a" should be inserted for the
ﬁgure "4". ' '

. In the footnote on page 6 a new footnote "4, See Paragraph 5.2, supra"

should be added, and the ﬁgure for the footnote "4", the ﬁgure "4a"
should be substituted. -

On Page 8, in sub-paragraph of para 8.5 in line 5 in item 3 the alpha-
bet "s" should be inserted reading the word "Section" as "Sections".

In appendix 1 on page 11 the ﬁgure "77" should be substituted by the
ﬁgure "78" in the heading.

Justice K. K. Mathew .
D. O. No. F. 2(8)/84-LC

New Delhi
Dated, the 10th October, 1984.

My dear Minister,

I am forwarding herewith the One Hundred and Fourth
Report of the Law _-Commission on "The Judicial Oﬂicers' Protection

.Act, l850". The subject was taken up by the Law Commission on

its own.

The Commission is indebted to Shri' P. M; Bakshi, Part-time
Member, and Shri A. K. Srinivasamurthy' Me-Secretary, for

their valuable assistance in the preparation of the Report.

With regards,
Yomfs sinoeteiy,
Sd'I- ,
4(K.I€.,
Shri J agannath Katéihatl. ,
Minister of Law,

T and Company '

New Delhi. V
Encl:------ 104th Report

CIL\PT!?§

CONT ENTS

INTRODUCTORY
HISTORY

THE PRESENT LAW
PRELIMINARY ;\'IATTERS

PERSONS ENTITLED TO PROTECTION AS JUDGES

PROCEEDINGS FOR WHICH PROTECTION IS AVAILABLE .

MINISTERIAL ACTS . . .
"GOOD FAITH". AND OTHER EXPRESSIONS
COMMENTS RECEIVED ON THE WORKING PAPER

MAIN RECOMMENDATION . .

APPENDICES

Appendix 1. Sectionv 76-78, Indian Penal Code .

Appendix 2. EngIi_~'I1 law as to the protection of Judges . . .

(i)

Page

....,

LllAPTliR I
INTRODUCTORY

1.1. Revision of the Judicial Oﬂicers' Protection Act, 1850, has been taken Need for _
up by the law Commission of its own, as a part of its function of simplifying :ﬁz'SX'cr:.°t
the law. The manner in which the Act is expressed has become out of date,
particularly as a result of subsequent legislative and other developriients that
have taken place in lndia, The Act therefore needs revision badly. The Act
was passed more than a century ago. Since then. no comprehensive review of its
provisions has been undertaken. The points that arise out of the Act are impor-

tant enough tc require serious consideration.

l.2. Stated broadly, the object of the,Act is two fold. It seeks to confer pro- Principle of
tection on persons performing judicial functions, and it is also designed to pro- the Act'
tect persons executing decrees and orders passed by the judiciary in exercise of
its functions. The ﬁrst seems to be the principal objective of the Act; the second
objective, of protecting the executive officers, may be regarded an ancillary to
the ﬁrst.

1.3. The Act lays down no new principle. Most common law countries The principle
confer substantial protection on their judges, even in respect of acts beyond their
jurisdiction, provided such acts be done honestly and on reasonable and probable
cause. However, though the principle is not controversial, several matters of
detail arise and it is desirable to consider the provisions of the Act at some length.
Before discussing the provisions of the Act in detail, it may be convenient to
give its history in brief.

1.4. The Law Commission had. for ascertaining opinion on the subject, pre-- Working
pared and circulated' a Working Paper, inviting comments from interested per- 939°"
sons and bodies. The comments received on the Working Paper will be referred

to, at the appropriate place."-"

CHAPTER 2
HISTORY
2.1. Prior to 1850. in India, there was no comprehensive legislation relating l1:r°gi':iI<%1ia?f
to judicial immunity. A British statute, dealing with :1 very limited area of the Magistrates
subject provided as fol1ows':~ "Dd" Brmsh
' statute.

"And. whereas it is reasonable to render Provincial Magistrates, as well as
natives as British subjects, more safe in execution of their oﬂice; be it enact-
ed, that no action for wrong or injury shall lie in the Supreme Court, against
any person whatsoever exercising a judicial office in the Country Courts.
for any judgment. decree or order of the said Court, nor against any person
for any act done or in virtue of the Order of the said Court."

'Law Commission of India, Working Paper on the Judicial Ofﬁcers Protection Act, 1855.

' 'Chapter 9 infra.

3All comments reeeiv ed upto the date of signing this Report have been taken into account.
'Section 24, Statute 21 Geo 3 Ch. 70.

and the details.

View of Pri\'_\
Council as

to object of
British
statute.

Privy Council
Construction
of Statute
referred to
ahove.

Position
prior to
1 850.

Scope of
the Act
of 1850.

Scheme of
the Act,
and three
major
heads of
study.

2.2. I he Object ol that section ot the British statute: was to protect persons
cxercir~.in-g a judicial otiice for things done within their jurisdiction, though erro-
neously or irregularly done, leaving them for things done wholly without jurisdic-
tion. It was so held by the Privy Council?

2.3. The Privy Cottncil turthcr laid down' that the statute referred to above
«zprczecting Provincial Migistrates in India from actions for any wrong or in-
jury done by them in the exercise of their judicial offices) did not confer unlimited
protection cn Magistrate. It placed them on the same footing as English courts
of similar jurisdiction. The Privy Council saw no reason why Indian judges should
be "more or less protected than English judges of general and limited jurisdic-
tion under the like circumstances."

According to the Privy Council, to give them (Indian judges) an exemption
irom liability when acting bonaﬁde but without jurisdiction would be to place
them on 2 better footing than the English judges, and would leave the injured
individual wholly without remedy. The Privy Council further observed:--«

"For, English Judges, when they act wholly without jurisdiction, whether
they may suppose they had it or not, have no privilege; and the justice of
the peace, whether acting as such, or in their judicial character, in case of
summary conviction, have no other privileges than that of having notice
oi action, a limitation of time for bringing it, a restriction as to the venue,
the power of tendering amends, and of pleading the general issue. with
certain advantages as to costs."

2.4. Thus, prior to the passing of the Act of 1850. the protection for judges
in India existed only for acts within jurisdiction, as held by the Privy Council.
As will be pointed out later. the Act of 1850 has expanded the protection avail-
able to judges.

CHAPTER 3
PRESENT LAW

3.1. The Act of 1850 makes more deﬁnite provision as to the protection of
judges than the earlier law'. In the first place, it covers all julicial oﬂicers, by
enumerating them speciﬁcally. Secondly, it protects the judicial oﬁicers from
suits, not only for acts done or ordered to be done by them in the discharge of
their duties within the limits of their jurisdiction, but also for acts done beyond
I./tr» limits of their jurisdiction, provided that, in the latter case, the ofﬁcer, at the
time of doing the act or ordering it to be done, in good faith believed himself
to have such jurisdiction. Thirdly, the Act also protects persons acting in put-
suance oi the orders of a judicial oﬂicer, if acting in good faith, even if the judicial
olﬁcer had no jurisdiction to pass the particular order.

3.2. T he scheme of the Act is simple enough, Because of the legislative
practice in those days, the Act does not commence with the usual clause dealing
with its short title and territorial extent. The Act consists of only one section,
and its structure is not complicated.

1Section 24, Statute 21 G60 3 Ch. 70.

*CaIderv.Halket,(1840)2Moo Ind. App. 293 13 ER. 12; 3 M00. P.C. 28; (I835-1842) All
ER Rm. 306.

'Calder v. Halket, (1840) 3 M00 P.C. 28; 13 E.R. 2 M00. Ind. App. 293; 0835-1842) All B.R.
REP. 306. . _
'For the earlier law, see Chapter 2, supra.

...x

I-to-*.veve1, there is a possibility of detailed wtudy in regard to ('1) the persons
who receive the protection of the Act,' (ii) kind of proceedings for which
such protection is avai':able.2 and iii) the extent of the protection so available."

3.3. Section 1 of the Act may be quoted in full: SECHOU ]~

"I. Non-liability to suit of oﬂicers acting judicially. for oﬂicial acts done in
good faith, and of Oyfcers 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 juris-
diction:

Provided that he at the time. in good faith, believed himself to have jurisdic-
tion to do or order the net complained of; and no officer of any Court or other
person. bound to execute the lawful warrant'; orders of any such Judge. Magis-
trate, Justicc of the Peace, Collector or other person acting judiciaily. 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".

3.4. Each of the three matters mentioned above' in our analysis of section I Importance
has an importance of its own. The ﬁrst, which relates to the persons entitled to ggpélggeof
protection, is important. because of the recent increase in the number of authori- Section 1.
ties performing quasi-judicial functions. The second---the kind of proceedings
enjoying pmtection----is important. because of certain emerging concepts of ad-
ministrative law, The third.--the extent of protectic-n~~~is also important, be-
cause of its cnncem with the state of mind and other elements which are the
essential criteria for availability of the immunity granted by the Act.

CHAPTER 4

SHORT TITLE AND EXTENT

4.1. Coming to the changes needed in the Act, we begin our examination Short

of the Act with the short title "The Judicial Officers Protection Act. 1850". In ;'r::n'(§'ed'?°
our opinion. this needs to be revised, The expression "Judicial officers" is not

quite apr~ropri:tte. By a layman, it may be taken as denoting only persons be-

longing to the lower judicial cadre of the State, but the Act is not conﬁned to

them. It extends to all persons who act judi«:ially---broadly speaking. "Judgcs".'

It woulrl be more appropriate to bring that idea in the forefront. The short

title of the Act should therefore be revised as "The Judges Protection Act.

1850".

We are separately" recommending adoption of the deﬁnition of "Judge" as
given in the Indian Penal Code.'

4.2. The next topic to be considered relates to the territorial extent of the Territorial
Act. At present, there is no provision in the Act deﬁning its territorial extent. extent'

'Chapter 5, infra.

'Chapter 6-7, infra.

"Chapter 8, infra.

'Paragraph 3.2, S'upr(I.

'Cf. section 19, Indian Penal Code.
'See, Paragraph 5.2, infra.
'Section 19, Indian Penal Code.

Need for ' i
change.

It appears that before independence, the Act was in ,force in all the Provinces
of (British) India, except the Scheduled Districts.' Subsequently, (i.e. after inde-
pendence), the Act was extended to the merged states', and Union Territories.'
However. the Act has not so far been extended by Parliamentary Legislation to
the area of Part B States, though, presumably, substantially similar legislation
may be in force in most of those areas.

4.3. There seems no reason why the Act should not be extended to the whole
of India except the State of Jammu and Kashmir, We see no constitutional diﬁi-
culty in doing so. The pith and substance of the Act seems to fall within the
subject of "Actionable wrongs", which is speciﬁcally included in the Concurrent
list in the Constitution.' Even if the Act is regarded as touching the subject of
"administration of Justice", that also is a matter which now falls within the Con-
current List? There should, therefore, be no objection to extending the Act
to the areas of former Part B States. In such matters, uniformity is desirable
and should be sought for. if there isno constitutional difﬁculty.

4.4. Accordingly, we propose that the Act should be extended to the whole
of India except the State of Jammu and Kashmir.

.3'

CHAPTER 5

PERSONS ENTITLED TO PROTECTION AS JUDGES

5.1. Turning, now, to the actual provisions of the Act, we ﬁnd that the per-

sons on whom protection is conferred by the Act are enumerated in section 1 I
as "judge, magistrate, justice of the peace, Collector or other persons acting judi- .
cially". Underlying the enumeration of all the persons in the section is the

central concept of "acting judicially". We ﬁnd that the same idea is expressed
brieﬂy, but more comprehensively, in section 77 of the Indian Penal Code,' which

confers on judges protection from criminal liability in respect of certain judicial .

acts.

5.2. The expression "Judge", and also the connected expressicn "court of

. Justice", are appropriately deﬁned in the Indian Penal Code.' By Section 19. of

the Penal Code (omitting the illustrations), the word "Judge" has been 'given
the following meaning: - '» -

"'19. The word "Judge" denotes .not only every person who is oiﬁcially de-

signed as a Judge, but also every person who is empowered by law to give, '
in any legal proceeding, civil or.criminal,»a- deﬁnitive judgment, or a judg-

ment which, if not appealed against, would be deﬁnitive, or a judgment which
if conﬁrmed by some other authority, would be deﬁnitive, or who is one
of a body or persons, which body of persons isempowered by law to give
such a judgment".

1Section 3, Laws, (Local Extent) Act, 1874 (15 of 1874).

'Merged States (Laws) Act, 1949 (59 of 1949).

'Union Territories (Laws) Act, 1950 (30 of 1950).

'Constitution, Seventh Schedule,' Concurrent List, entry 8.

"Constitution, Seventh Schedule, Concurrent List, entry llA. _ .
'See Appendix 1. _ -__
"Sections 19-20, Indian Penal Code. -- ,

settivri 20 of the lndian Penal Code tomitting the illustration) deﬁnes
a Court of Justice, as under:----

'lo, 'I he words "Court or Justice" denote Ll Judge who is empowered
by luv." to act iudicirtlly alone or Ll body of Judges which is etttpoxx-ctctl b_\
law to act judicially as a body, when such Judge or body is acting _itttlici-
wiry"
Li. ' .

5.4. L' the deﬁnitions of the expressions "Judge" and "Court of Justice" (as
given in the Penal Code) are incorporated in the Act under discussion'. it would
be possible to improve the (lr;tt't§ng of this part of sectioti 1 of the Act. by adopt-
ing the language of section 77 of the Penal Code. Section 77 is the substantive
provision conferring on judges, protection in regard to criminal liability.'

On this basis, this part of section 1 of the Act under consideration can be
revised as under:-----

"N0 Judge shall be liable to be sued in any Civil Court for anything
winch is done by him, when actling judicially in the exercise of any power
which is given. to him by law, or which in good faith he believes; to be given
to him by law."

5.5. Bctote proceeding to consider the other issues arising out of section
I of the Act, (that is to say, the issues which relate to the nature of the protected
acts and various other conditions of judicial immunity), some words may be
in order about quasi-judicial authorities. According to doctrines of constitutional
and arlmiiiistrative law, these authorities are regarded as bound by the rules of
natural justice, and consequentially amenable to judicial control exercised by
High Courts under article 226 of the Constitut'on. The extent of permissible
judicial control is. of course, a question primarily relntablc to that article. For the
present purpose, the precise issue to be considered is this: to what extent is judi-
cial immunity from liability (conferred by the Act under consideration) available
to such quasijudicial authorities?

5.6. The question passed above assumes practical importance. because these
authorities have a very wide range. At the one end of the scale are statutory
tribtmals which operate almost like courts. These tribunals are vested with the
function of ﬁnding facts and applying the law, in a formal manner and after
following the procedure prescribed for a civil court."

At the other end of the scale are administrative authorities who, though they
are bound to act quasi-judicially and to follow the rules of natural justice. do
not perform any judicial function as such.

ln between the two, there is a vast variety of authorities. Where there is
no judicial immunity (because the authorities concerned are not "courts") nor
is statutory protection given by a special provision. the presiding officers of such
authorities would presumably be liable in the same circumstances as other pu-
rely executive officers.'

1Cf. Paragraph 8.5, infra.

'3See Appendix 1.

3Cf. Wade, Administrative Law (1977), pages 641-642.
'Cf. Wade, Administrative Law (1977), page 642.

2 - I3 M ofLI & CA/ND/84

Section 20,
Indian Penal
Code.

Possible
re-draft of
.rt 01'
Section I.

Authorities
other than
judges.

Range of
authorities.

'-J1

Effect 9f ' '5.'/. It vvotifd are/Ear that the proposed redrat: of this part' of section 1, deal-
fgm iv-g with get: _ ,,.,.:ti...vn :n qtjea-.ips.= meet the ends of -~
justice. On '.;"--.€' one hand, it V-:0'-.;id cover all those whose function is to give a
"deﬁn.'tive judginent".' At the same time. the proposed re-draft will not be un-
duly wide. as authorities not entitled to give it deﬁnitive judgement would be

excluded.

Incidentally we find" that in the context of the law of contempt, the matter
has been discussed academically in England, and it has been pointed out that _
two rival iCSIS could be thought of. namely, (i) the source of authority "test", and g
(ii) the "f'.'nci.ic-n" test. The test which we are proposing is principally based on
the functions' vested in the authority concerned. , A

.1"...

- V in " CHAPTER 6

PROCEEDINGS FOR WHICH PROTECTION IS AVAILABLE ' J

Ilf|';'3l'('V£'.l'It'T|i if. for that purpose also. the simpler provision I21 section 77, Indian
Pena'. Code. is adopted.' Section 77 expresses' (in much briefer language) all

Section I . 6.}. The substantive provis'on is section 1 ./earlier half and the proviso) of
j :;3"g,£'i£J_ the Act -'7l'i('i~fI' consideration, which deals with the nature of the protection given
to the p~'-rrsons concerned, can now be taken up. It appears that it would be an _i

_- that this part of section I of the Act under consideration tries to express.
~Ppc _ ; v . 6.2. it may be desirable to analyse a few aspects of the Act of 1850 which
aﬂ';'@;'.::'d is under consideration. Under the Act of 1850; the protection applied to" acts done
§v;t_ 'L _T . within jurisdiction,irrespective of questions of good faith; but the protection does
*"" j A not apply to acts done without jurisdiction, if the act is 'not done in good faith.
This will be apparent from the conditions for claiming the protection,-analysed
in the next paragraph. -

The protection afforded to a judicial oﬂicer under the Act requires that (1)
he was acting judicially, (ii) that he made the order in discharge of his judicial
duties. and (iii) that either the action was within the limits of his jurisdiction or
(if it was without jurisdiction) that, in good faith, he believed himself to have juris-
diction to do or order the act complained of. This is fairly clear on a reading' of

section 1.
0.3. The adoption of section 77. Indian Penal Code, which we have suggest-
; 'ffmt, F E~'¢,. _of ed above, "-7 will not make a substantial difference in this regard. But it will
' 5°°"°"'77' .C.¢I.'tain_ly state the law in a simpler and heater form. ' A A _ I
Mp:u_1'_ not '6.4. It may be mentioned that the Act under consideration requires that the
-1"". ' - act imist have been done in discharge of "judicial" duty. Although a large num-

ber of rulings on the expression "judicial". exist in this context,' they are mostly
focussed on the facts of each case, and do not necessitate anytextual' amend-
ment.

'See paragraph 5.2. Supra.
'Cf. Sections I9-20, Indian Penal Code.

"Lowe & Rowlings, "Tribunals and the Lavils Protecting,Administration of Justice"
(Autumn l982) Public Law 418, 438, 439.

'See Appendix I.

5See Paragraph 3.3, supra. for the text of section I.
"Paragraphs 5.2, and 6.], supra.

7See also paragraph 3.3, supra.

aI_yer_, Torts (1975), page 46, Chapter 2, par; 16.

«.1

0.5. inc €."~iDICSSlOl1 "j,arisji-tion" as used in the Act under consideration Meaning 0'
. _ ,, , { , _ . , g f . _ W 3 "jur1sar.:::nr.
as-e.~, nu. n':r:,='lI1 tie power to do or order '[l'1€ tpaiticulai) ac. impaigned, but mcans
gcntgrall; tt:vIhmi!,_\ at th: jtnli«:i:;l oﬁiccr to act in the matter." Where 21' Sub-
(.ii'v'i'il'\'*I11ii M:«;€s:ti;itc, ol'.lC['> the arrest of a person for the offence of mischiel
Miiiltttll t:tl..?i:_. cognizance of the offence. the Sub-divisional Ofﬁcer is acting in
an executive capacity and is liatblc to pay damages for false imprisonment to the
persan as arrested.

CHAPTER 7
MINISTERIAL ACTS

7.1. So far, we have considered that part of section 1 of the Act under dis- Section_ '._
cussioii which relates to the immunity of judges. The latter part of the section $31,'!-ia1M',,':;'tsS:
confers protection on an oﬂicer of court and "other person" who executes any
warrant or order issued by the judge, which that oﬂicer or other person would be

bound to execute if within the jurisdiction of the person receiving the same.

' Here also, it appears preferable to adopt the similar language of section 78 of the
Indian Penal Code? That Section is concerned with the protection against cri-

minal liability for ministerial acts done in pursuance of the orders of a judge (as
deﬁned in that Code).

72. On this basis, the latter part of section' 1 could be revised as under:-~-- possible
" _ re-draft of
"Nothing which is done in pursuance of, or which is warranted, by the judge- ﬁgs?"

ment or order of a court of justice, if done whilst such judgement or order
remains in force, shall render a person liable to be sued in any civil court,
notwithstanding that the court may have had no jurisdiction to pass such
judgement or or er, provided the [.'E';'3G11 doing the act in good faith believes
that the court had such jurisdiction."

CHAPTER 8
"GOOD FAITH" AND OIHER EXPRESSIONS

d.l. One important point that must also receive attention in connection with Section 1;
section 1 oi' the Act is the question whether the belief of the person acting judici- Good mm
ally 'in good faith' must be based on reasonable inquiry. In other words, does
the f.'x_1."1T6Ssi()11 "good faith" here postulate due care and attention'? The point
was dicussed in detaii ii: a Calcutta case? -On the facts of the belief was held
to be both honest and reasonable. At the same time, it was pointed out that
there may be some difficulty as to the exact meaning of the expression "in good
faith" as amiezzring in section E. A question, it was said, may arise if it was
necessary to see whether there existed a reasonable cause for the belief of the
Magistrate, or whether it was suﬂicient if he himself thought that there was suﬂi-

cient cause.'

1Anowar Hussain v. Ajay Kumar, A.I.R. 1965 S.C. 1651, approving AIR. 1959 Assam 28.

"Appendix 1.
3Rohz'ni Kumar v. Nraz Mohammed, AIR. 1944 Cal. 4, 10 (Pal 1.).
'See also Collector of Sea Custom v. Chidambaram. (1876) I.L.R. 1 Mad. 89.

Suggestion
to adopt
deﬁnition
of "good
faith" in
Penal Code.

Deﬁnition
of "act".

Uniformity.

Proposal for
adopting
deﬁnitions
given in
Indian Penal
Code.

8.2. The diﬂiculty pointed out in the Calcutta case mentioned above' would
disappear if the deﬁnition of "good faith" as given in the Penal Code? is adopted
for the purpose of the interpretation of the Act under consideration also. Section
52 of the Penal Code reads as under:--

"52. Nothing is said to be done or believed in "good faith" which is done
or believed without due care and attention."

It is desirable that for the purposes of the Act under consideration also,
reckless belief should confer no immunity, It may be mentioned that a judge
acting without jurisdiction recklessly enjoys no immunity from criminal liabi-
lity.3

8.3. There is another useful deﬁnition contained in the Indian Penal Code-
deﬁnition of the expression "act"---which is worth adopting'. That expression is
used in the Act under consideration but is not deﬁned by the Act.

In the i'-ldlall Penal Code, two sections are relevant as deﬁning its scope.
Section 32 of the Indian Penal Code provides as under : --

"32. In every part of this Code except where a contrary intention appears
from the context, words which refer to acts done extend also to illegal omis-
sions."

Section of the same Code provides as under;--

The 'word 'act' denotes as well as a series of acts as a single act; the word
'oinissiotf denotes as well as series of omissions as a single omission."

8.4. The deﬁnitions contained in the Penal Code are useful. Moreover, some
uniformity is desirable in such matters, as regards civil and criminal liability,
unless a distinction is justified on some matter of principle.

On this logic, there a case for inserting, in the Act under considera-
tion, 2 provision to the eﬁect that words and expressions deﬁned in the Indian
Penal Code and used but not deﬁned in the Act have the meanings respectively
assigned to them in the Indian Penal Code.

So far as we could as.cer't»:tic., there are four expressions deﬁned in the Penal
Code, which 'would be useful for the purposes of the Act under consideration---

(lf Scctiorl 1i)----'Judg~:.' ('dC'ﬁYli"i with reference to 'Court of Justice')?
(2) Section 2C--'Cou.-*: of Justice' (used in the deﬁnition of 'Judge').'
(3) Section 32-33--'act'."

(4) Section 52--'goo<i faith'."

it would be useful if they are adopted into the Act under consideration,

1Paragraph 8.1, supra.

'Section 52, I.P.C.

3Section 77, I.P.C. (See Appendix 1).
'Sections 32-33, I.P.C.

Waragrapli 5.2, supra.

"Paragraph 5.3, supra.

7Paragraph 8.3, supra.

'Paragraph 8.2, SUP"!-

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CHAPTER 9

COMMENTS RECEIVED ON THE WORKING PAPER

9.]. in response' to the Working Paper circulated on the subject by the Law Comments
Commission, three comments have been received? Of these replies, one is from {ﬁ§°'vV§§,',k"§,'g
a High Court, which has no comments to offer? The second is from a High Court, Paper-
which agrees with the proposal put forth in the Working Paper." The third is also
from a High Court, which not only agrees with theproposal. but also adds that

the proposal will' go a long way towards giving protection to judicial ofﬁcers.

9.2. The proposals have thus been welcomed.

{ CHAPTER 10

MAIN RECOMMENDATION S

10.1. The main recommendations made in this Report may, for the sake of Main R_ecom--
convenience, be summarised as under:--»-- m°"d""°"'-

(1) The short title of the Judicial Oﬂicers Protection Act should be re-
vised to read as "The Judges Protection Act, l850"."'

(2) The Act should be extended to the whole of India. except the State
of Jammu and Kashmir

{3} The provision in :he Act for the protection of Judges should be re-
vised" as under:----

"No Judge sliall be liable to be sued in any Civil Court for anything
which is done by him when acting judicially, in the exercise of any power
which is given to him by law, or which in good faith he believes to be
given to l-1

(4) As regard»; ministerial action taken in pursuance of Judicial acts,
the relevant provision of the Act should be revised so as to read as under : ----

"Nothing which is done in pursuance of, or which is warranted by, ,
the judgment or order of a court of justice, if done whilst such judgment
or .crder remains in force, shall render a person liable to be sued» in any
civil court, notwithstanding that the court may have had no jurisdiction

' to pass such judgment or order, provided the person doing the act in good
faith believes that the court. had such jiu"isd.iction."°

(5) A new provision should be inserted in the Act to the effect that words
'i and expressions deﬁned in the Indian Panel Code and used but not deﬁned
in the Act, have the meanings respectively asigned to them by the Code."

'Law Commission File No. F.2(8) 84-L.C. S.No. 2, 3 and 4.

215.11 comments received upto 18th August, 1984 have been taken into account.
"Law Commission File No. F.2(8)/84 L.C. S.No. 2.

'Law Commission File No. F.2(8)/84 L.C. No.3.

'Law Commission Fiie No. F.2(8)/84 L.C. S.No. 4.

7 C 'Paragraph 4.1, supra.

' "Paragraph 4.4, supra.

°Pa.ragraphs 5.4 and 6.1, supra.

"Paragraph 7.1, supra.

"Paragraph 8.5, supra.

r 0

10.2. The Judicial Oﬂicers' Protection Act, 1850 should be revised on the ACE 10 '=6

iincs re-sommendcd in this Chapter.

(J .P. CHATURVEDI)

"ember

aim. BAKSHD
Part-time Membez

revised.

(K.K. MATHEW)
CHAIRMAN

(DR. M. B. RAO)
Member

(VEPA P. SARATHI)
Part-time Member

'A.K. SRIMVASAMURIHY)

Member-Secretary

DATED : 10th October, 1984.

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.-U.'PE'\'DI'-

Si-zcrioris 75-'."!. I.\'DIA'.'? Pr::..+.L Cop:

Sections 76 to 78 ot the Indian Penal Code renal tine.

"S.:ction.s 76.----Nothing is an oﬂence. wliicli is done by it person nliu reason of a mist- e of fact and not by reason of it mistake himself to be. bound by law to do 5:.

is oi' who I1}-

t~.;' Jaw in }_!U'.'d ."ai'li believes _ "Scctimi 'I7~-Nothing is an olfence which is done by ;I Jud in the exercise of any power which. is. or ii-hich in __g_ood t'ai=I- I him bylaw. "' ' :.'c "hen .ieLing judicially ic -".:'.'c\=c- to be. given to _ "St-crimt 78.»-~Nothing which is done in pursuance of. or which is warran'ed by the iudgemeni or order ot'. a court of Justice. if done whilst sllltil |ll(il.'.C£iIi':lI' or order I€.'l'l'..'.Iill\ in force. is an otfence. notwithstainling the CL'-IIH ma} Ii-.r.-e iiild no ,-'Lii'isdi.-iion ta pass such judgement or order. provided the rersen doing the a . . ;;'».'--'.'-C! faith believe. iha: the Court had such jurisdiction."

APPENDIX 2 E.N'ﬁl.lSI-I l.A"' A'; TO THE PROTECTION (II .it l)(.iI'S English {aw as to the protection of Judges has had an interesting history. Origins' . . . . . . ,. . '15.' Position in in England. a distinction was Iby case law) mittie between \'lI|'l.:.'lt!I' and ll1.'L'.'fIt"Il' court g j in this context. For example. the View taken in the 19th century. in a case in which there 19"' "as an unsuccessful action against Mr. Justice Blackbiirn. was that' -- (-cnmry as In . . . . . . Superior 'This is a principle of our Iaw that no -.n.-ti:-i~ non! _ _ _ 1.5 tie iieuimt it iiidec _o_t' one (_'num_ of the superior courts'. for a judicial act though it be alleged to have done maiicioiislv and corruptl_v."

In the case of inferior courts. hnvicvcr. there were deci-i. uh uhich held the nrcsitiiiig . ﬂ> -, _ . , - -. - -. 3 , - Inferior o it.r.s li.ibli. nhere a_wrong has committed in excess of _jlIl'I.\(iILtIOl1. For example, judges C "1 were in such cases--»-i.e. tn matters beyond their jiirisiliction held personally liable for '°' 5' damages for false imprisonment and assau_It_even _where they had acted in good faith:

and oﬂicers exectiting their judgements were similarly liable'.

In I848. the Justices Protection Act. was passed. protecting justices :icii'u_,- wimiii their juri.rdicri'mi, unless the plaintiff proved malice and want at" rcasonziblc and probable cause'. This statute. to some extent, brought the position of the justices tiearer to the position of the Judges of the superior courts.

_As to acts of Justices without jurisdiction. however. the statute of I848 gave no pro- tection".

I.'ntiI I975. the position in England appears to have been as under7:>-- Po"-"on unto 107'.

la) No action lies against any judge of a mpcrii.-r ¢.'u'.'lI'J in re.-.pcct oi' anything done or said by him in the exercise of his duties. no matter how malicious or wrongful-", or (probably) even if he is acring outside his jurisdiction. .

tb) Judges of other courts (inferior courts) are liable for acts outside jurisdiction.

The autlinrities stated tso far. i-I" course. only in rchnion -.o judge». of inferior courts). that ii judge was liable for exceeding his jurisdiction". -

'Fray v. Blackburn. (I863) I! & S 576. 578. l22ER 217 (Crompton J). '-'Emphasis added.

"See 0'C0nnor v. Issue, (1956) I All E.R. 5I3.

» 'Wade. Administrative Law (1977), pages 640-64-I. tscction I. Justices' Protection Act,I848. See new section 44, Protection of Justices. Act, I979. 'Section 2. Justices' Protection Act, 1848.

'See (a) L..~\. She. idan. "Protection of Justices" (I961) 14 Modern Law Rev. 267.

(b) D. Thompson "Judicial Immunity and the Protection of Justices" I 1958) 21 M.L.R'

517. >-

".4nder.ron v. Corrie (1895) I (2.13. 668 (C.A.) 'Calder V. HaIket,(l840)3 Moo, P.C. 28; 13 ER. 12 (l'.C.'); (i835-1842) All ER. Rep. 306 Palrnegz Crane, (1927) I KB. 804; Sammy-Joe v. G.}'. Mount Pleasant Post Oﬁice, (1966) 3 All. E.R. .

«nun -A (C) By virtue of the Justices Protection Act, 1948, a magistrate is -liable (i) for acts done outside his jurisdiction and (ii) for acts done within the jurisdiction which are carried out maliciously or without reasonable and probable cause. The bt.:rd.en of providing malice and Want of reasonable and probable Cause on the aglaintiﬁl In 1975, there came an important judgement of the Court of Appeal. The distinction betweensuperior and inferior courts seems to have been over-ruled by that decision of the Court or Appeal, 1975. According to the judgement of Lord Denning M.R. in that case"-

"Every judge of the courts of this land--from the highest to the lowest3----should be protected to the same degree, and liable to the same degree .......... ..What he does may be outside his jurisdiction----in fact or in law--»but so long as he honestly believes it to be Within his jurisdiction, he should not be liable."

According to this view, every judge, whether of a superior court or of an inferior court {including a Magistrate), is immune in respect of judicial acs done in an honest belief that the acts are within his jurisdiction. Although the judgements of members of the Court of Appeal give different reasons for the conclusion reached the Court of-Appeal seems to have been unanimous on the question of treating all judges alike. There seemed no I logic in leaning more heavily on magistrates or circuit judges, Duckly L.J. was satisﬁed that P, 'W the authorities established that there was no distinction made in principle".

This seems to be the better view, although some writers a_re_ca_utious enough to state that inferior Judges are liable for all acts done in excess of jurisdiction".

At the same time, it should be mentioned that by section 45 of the,Ju_sti'ces_ of Peace Act, 1979, an action is allowed against Justices for an act done \without ]llI'lSd.'CllOl1, where the conviction or order of the Justices has been quashed by the Hlgll Court 'See O'Connor v. Issac (1956) I All E.R. 513-527.

'Sirross v. Moore (1975) Q.B.D. 118: (1974) 3 All ER. 776, 785 (C.A.). 3Emphasis added. , 4Sirros v. Moore, (1975) Q.B.D. 118; (1974) 3 All ER. 776, 787, 788 (C.A.). 5Brazier, "Judicial Immunity" (1976) Public Law 397, 408.

"E3. Salmond Torts (1981), page 387.

MGIPCBE---S IV-----13 M of LI & CA/ND/84--16-8-85-625. V /, 4 yr---?'7'" w . ._,,-

7' 1 r ?

gwr Decision of W I975.

.i xi';

TN ."rqr V; 's I' Act of . j / 1979. -3 .1 E ,1 M' ,e

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The Judicial Officers Protection Act 1850