Act done by Judges and authorities acting under him | Overview Relevant Provisions under the IPC, 1860 for the  acts done by judges and the authorities acting under them Scope and Nature of the Sections Judge Acting Judicially Exercise of Power believed in Good faith to be given by Law Acts done pursuant to judgment or order of… Read More »

Act done by Judges and authorities acting under him | Overview Relevant Provisions under the IPC, 1860 for the acts done by judges and the authorities acting under them Scope and Nature of the Sections Judge Acting Judicially Exercise of Power believed in Good faith to be given by Law Acts done pursuant to judgment or order of Court The essay discusses the Act done by Judges and authorities acting under him. Some people are immune from the criminal law operation. Chapter IV of the...

Act done by Judges and authorities acting under him | Overview

The essay discusses the Act done by Judges and authorities acting under him. Some people are immune from the criminal law operation. Chapter IV of the IPC, entitled’ General Exceptions,’ which contains sections 76 to 106, exempts certain citizens from criminal liability. Acts done by judges and the authorities acting under them are justifiable acts and ultimately exempt an individual from criminal liability.

I. Relevant Provisions under the IPC, 1860 for the acts done by judges and the authorities acting under them

Section 77 of the Indian Penal Code, 1860: Act of Judge when acting judicially – 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.”

Section 78 of the Indian Penal Code, 1860: “Act done pursuant to the judgment or order of Court – 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 order remains in force, is an offence, notwithstand­ing 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 jurisdiction.”

II. Scope and Nature of the Sections

The purpose of the protection given to judges and their ministerial staff who execute the judges’ orders under these provisions is to ensure the independence of the judges and to enable them to carry out their duties without fear of the consequences.

Protection is public policy-based. Ministerial staff refers to various officials attached to a court whose duty is to carry out mandates legally issued by judicial officers, i.e., judges or magistrates. For example, such officers are court clerks, bailiffs, ameenas, etc.

Protection of judges or judicial officers is based on the premise that they should be able to act in their decision-making process in a fearless, impartial and full sense of security. The aim is not to shield dishonest or unethical judges, but to protect the public from the risks to which the administration of justice would be subjected if the judicial officers involved are subject to investigation as to wrongdoing or litigation by those who might be offended by their actions.

In Anowar Hussain v. Ajoy Kumar Mukherjee [2], it was held that “It is in the public interest that no action can lie against a Judge for his judicial act. An aggrieved party cannot demand any explanation from the Judicial Officer for how the judgment was rendered.”

In Khanapuram Gandaiah v. Administrative Officer & ors [3], it was held that “No person, therefore, has the right, even under the Right to Information Act 2005, to seek reasons from a Judge as to why he had taken a particular decision in the matter which was before him. The judge is not obliged to give reasons, other than those given in his judgment or order disposing of the matter.”

The essentials to invoke Section 77 and Section 78 IPC are: (1) there was a judge, (2) he was acting judicially, (3) in the exercise of power believed in good faith to be given by the law,(4) acts done pursuant to judgement or order of the Court.

III. Judge

Section 77 protects a judge’s actions. Section 19, IPC, describes the term’ Judge’ as applying not only to an individual formally named as a judge but also to a person authorized by law to make a final decision in the proceedings. It also requires an individual who is one of a body of persons, and law empowers the body of persons to render such a conclusive decision.

The illustration to section 19 notes that a collector exercising authority in litigation under Act X of 1859 or a representative of a panchayat allowed to try and determine lawsuits under the Madras Code Reg VII of 1816 are judges.

A judge exercising jurisdiction over a charge on which he has only the power to commit to another court for trial is not a judge. For the intent of the Code, he will be a judge only when he exercises authority in a case or trial in which he has the power to make a final judgment.

It was held in Brajnandan Sinha v Jyoti Narain [4] that “The right to pronounce a definitive judgment is considered the sine qua non of a Court.” It was held that “A mere fact-finding body or authority, like a commissioner appointed under the Public Servants (Enquiries) Act, 1850, would not be a judge or a court of justice.

Similarly, a Collector who exercises powers of enquiry and award under the Land Acquisition Act of 1894 does not qualify for protection under s 77 of the IPC as he does not carry judicial function.”

Acting Judicially

The next important element of section 77 is that not only should it be an act of a judge but it should also be performed by him during the exercise of his judicial powers. Only actions are done by him ‘as behaving judicially’ shield a judge.

In Rachapudi Subba Rao v. Advocate General, Andhra Pradesh[5], The petitioner filed a claim in respect of a building for the declaration of title. His suit was rejected by the additional subordinate judge. The petitioner issued a legal notice alleging that the judge’s judgment in the suit was delivered with bad faith, among other things. He also claimed that the judge did not act in good faith when presiding in court, rather he abused his authority with malice.

The Andhra Pradesh HC convicted and sentenced the petitioner with imprisonment for a period of one month, for committing gross contempt of Court. The petitioner appealed to the Supreme Court. He reiterated before the Supreme Court that the judge had rendered a dishonest judgment and was guilty of serious misconduct in carrying out his duties, and the allegations made in the notice of’ bad faith’ and’ malice’ were true.

He also claimed that the notice he sent to the judge complied with s 80 of the 1908 Code of Civil Procedure (CPC) as he wanted to file a suit against the judge seeking damages. In spite of this, he claimed that the’ notice’ he sent was not scandalous, to avoid contempt of court.

Rejecting his contention, the Supreme Court held that “section 1 of the Judicial Officers Protection Act, 1850 offers an absolute immunity from civil liability for acts done by a judge in his judicial capacity and which are within his jurisdiction.

The question of ‘good faith’ arises only in cases where the acts may not be within his jurisdiction, but it was done by the judicial officer where he, in good faith, believed that he had jurisdiction. In respect of acts done which are within his jurisdiction, no enquiry will be entertained as to whether the act done or ordered to be done was erroneous or even illegal or was done or ordered without believing in good faith”.

He would be protected from civil liability in the instant case, as there was no dispute that the judicial officer concerned had jurisdiction. The appeal was dismissed and the sentence and conviction were upheld.

It was held in Suresh Kumar Sharma v. Durgalal Vijay & Ors [6] that “Proceedings initiated before Magistrate under chapter VIII of the Cr PC are of judicial character and the magistrate, therefore, is protected even if he, in good faith, acted without jurisdiction or with malice.”

Exercise of Power believed in Good faith to be given by Law

Protection under s 77 applies not only to actions of a judge in the practice of judicial authority given to him by law but also to activities performed by him in the absence of judicial authority that he claims in good faith has been granted to him by law.

Therefore, even if a judge acts beyond his authority, considering that he has jurisdiction under the bonafide conviction, even such acts are covered by this provision. Nevertheless, if a judicial officer’s conduct is motivated through malafides or unethical motivations, it shows a lack of good faith and therefore cannot be covered by s 77.

In State of Uttar Pradesh v Tulsi Ram & ors [7], the Magistrate ordered wrongful imprisonment, he was held liable and no defence was given.

In a case where a judicial officer was to sign warrants for the arrest of convicted persons but warrants were signed and issued on account of negligence even against acquitted persons, it was held that the judicial officer could not obtain protection or immunity. [8]

IV. Acts done pursuant to judgment or order of Court

Section 78 protects ministerial and other staff, as mentioned earlier, who may be required to execute court orders. If such immunity was not extended, then it would be impossible to execute or enforce court orders.

The defence applies even if the court order under which the person must act is, in fact, without or beyond jurisdiction, given that the person enforcing the order assumed, in good faith, that the court concerned had the property of other partnership firm parties.

In Sheo Narain v State of Rajasthan [9], the petitioner had received a civil order becoming a khatedar landowner. A case was consequently filed against him at the police station under ss 209, 210, and 420 of the IPC, alleging that he had concealed the fact that the land belonged to an individual from scheduled caste and had recorded the selling deed on the basis of which the decree was issued.

Rajasthan’s High Court quashed the FIR, claiming that a court decree made the petitioner a khatedar tenant. He would be covered under s 78 of the IPC until such a decision was set aside and no criminal complaint against him could be established.

Protection of section 78, however, cannot apply to the enforcement of a judge’s oral orders. It also does not protect a person if he exceeds a court’s power. In addition to the protections afforded by these provisions, the Supreme Court in Delhi Judicial Service Association, Tis Hazari Court v State of Gujarat [10]has given some instructions regarding the detention of judicial officers in the event of their participation in criminal proceedings.

The court issued directions that “if a judicial officer is to be arrested for any offence, it should be done under intimation to the District Judge or the judge of HC. If circumstances necessitate immediate arrest, a formal or technical arrest may be effected and the same be informed to the district judge and the chief justice of the high court.

On arrest, the judicial officer shall not be taken to the police station without prior order of the district judge”. The Supreme Court also ordered that “in all instances when a judicial officer is arrested, handcuffs should not be used.”


  1. KI Vibhute, PSA Pillai’s CRIMINAL LAW, 11th ed, 2012, Lexis Nexis.

[1] Blackstone’s Criminal Practice 2003, Peter Murphy (ed), Oxford, 2003, p 34.

[2] AIR 1965 SC 1651

[3] AIR 2010 SC 615

[4] AIR 1956 SC 66

[5] AIR 1981 SC 755

[6] (2011) ILR 1 MP 628

[7] AIR 1971 All 162

[8] (1970) All Cr LR 429

[9] (1999) 2 Crimes 169 (Raj)

[10] AIR 1991 SC 2176

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Updated On 30 May 2020 12:34 AM GMT
Ankita Mohanty

Ankita Mohanty

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