1 of 29

CRWP.3611.2014

Nilesh C. Ojha, Age : 37 years,

Advocate, R/o.Bhayander (East),
District Thane

C
ou

CRIMINAL WRIT PETITION NO.3611 OF 2014

rt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

Petitioner

ig
h

versus
1. State of Maharashtra through
Public Prosecutor, High Court, Bombay.

2. Smt.Justice Roshan Dalvi,

Judge, Bombay High Court.

3. Shri Shengle, PSI, Maharashtra Police.

ba
y

4. Shri D.V.Sawant, Registrar and

Prothonotary (Original Side),
Bombay High Court.

om

5. Shri O.D.Kakde, Advocate,

Nagpur.
6. Shri Sanjay Punamiya,
Mumbai.
7. Central Bureau of Investigation,
Mumbai.
8. Smt.Mohini Kamwani,
R/o.Vashi, Navi Mumbai.

Respondents

Mr.Nilesh C. Ojha, Petitioner in person present.

Mr.S.K.Shinde, Public Prosecutor with Mr.J.P.Jagnik, Additional
Public Prosecutor for Respondent-State.

::: Downloaded on - 14/11/2014 16:16:24 :::

2 of 29

CRWP.3611.2014

C
ou

rt

CORAM : MOHIT S. SHAH, CHIEF JUSTICE &

B.P.COLABAWALLA, J.
Date of Reserving the Judgment : 7 November 2014
Date of Pronouncing the Judgment : 11 November 2014
JUDGMENT - (Per : Chief Justice) :-

ig
h

Before indicating the prayers for which this Criminal

Writ Petition is filed, it will be necessary to refer to the facts noted by
this Court in Appeal (L) no.352 of 2014 and the orders passed by

2.

Mrs.Justice Roshan Dalvi.

The petitioner is an Advocate for Sanjay Punamiya,

ba
y

defendant no.1 in Suit no.175 of 2014. The suit is filed by the owner
of a 7,000 sq. ft. flat at Marine Drive, Mumbai, alleging that
defendant no.1 trespassed into the suit flat and fabricated documents

om

to show that he is granted lease in the suit flat on a monthly rent of

Rs.50,000/- per month only.
3.

The Plaintiff is the daughter of the owner of the building

claiming title of the entire building of which the suit flat is one of the
flats.

The Plaintiff's case in the suit is that Sanjay Punamiya

(Defendant no.1) trespassed upon the suit flat which was in

possession and occupation of Mr.Faizal Essa Alyousuf Al-Essa
(`Faizal'), who was the constituted attorney of Plaintiff's father. The
said Faizal had kidney transplant in January 2013 in Mumbai and
after recovering from the surgery, he left India for Kuwait on 6 May

::: Downloaded on - 14/11/2014 16:16:24 :::

3 of 29

CRWP.3611.2014

rt

2013 for rest. Defendant no.1 Sanjay Punamiya claims to have been
inducted as a tenant into the suit flat on the fifth floor of a building on

C
ou

Marine Drive admeasuring about 7,000 sq.ft. from Faizal on the basis

of alleged tenancy agreement dated 30 October 2012 for a rent of

Rs.50,000/- per month.
4.

In the said suit, the plaintiff filed Notice of Motion

no.313 of 2014 for interim orders. The Notice of Motion was listed

ig
h

for hearing before the Court of Mrs. Justice Roshan Dalvi on 7 May
2014. Justice Dalvi passed an order dated 7 May 2014 granting adinterim injunction against Sanjay Punamiya (defendant no.1) and

defendant nos.2 and 3 not to sell, alienate, encumber or create any

third party rights in the suit premises. Last two paras of the said order

om

ba
y

read as under:

43.
The acts of defendant No.1 and his Advocate
Nilesh Ojha (who has yet not filed his Vakalatnama)
detailed above is seen to be both scandalous and
defamatory. It constitutes contempt in the face of the
Court. This is a fit case where action for having
committed criminal contempt under the Contempt of
Courts Act should be initiated against them. However,
both defendant No.1 and Advocate Nilesh Ojha be first
allowed to show course against the action in contempt.
44. Issue notice upon both defendant No.1, Sanjay
Mishrimal Punamiya and Advocate Nilesh Ojha to
show cause, if any, why action under the Law of
Contempt of Court should not be initiated against
them.

::: Downloaded on - 14/11/2014 16:16:24 :::

4 of 29

CRWP.3611.2014

rt

Justice Dalvi also noted in the order that Defendant no.1 (Sanjay
Punamiya) was trying to avoid her Court as, in a similar case of

C
ou

trespass, she had passed an interim order for appointment of Court

Receiver.
5.

Order dated 7 May 2014 was passed by Smt.Justice

Roshan Dalvi under section 14 of the Contempt of Courts Act for

issuing notice to Sanjay Punamiya and the petitioner, Adv. Nilesh C.

ig
h

Ojha, to show cause why proceedings for contempt in the face of the
Court should not be initiated against them. On the basis thereof, the
Prothonotary & Senior Master of this Court (respondent no.4), issued

show cause notice no.787 of 2014 against Sanjay Punamiya and the
petitioner on 22 May 2014. Further, after considering the affidavits
of Sanjay Punamiya and the petitioner, Justice Roshan Dalvi passed

ba
y

order dated 23 June 2014 setting out the facts of the case as per the
requirements of section 14(2) of the Contempt of Courts Act. In view
of the prayer of the petitioner to transfer the case to another Court, by

om

the said order dated 23 June 2014, Justice Roshan Dalvi passed the
order for placing the matter before the Chief Justice for passing
directions as per section 14(2) of the Contempt of Courts Act for
placing the matter before another Judge.
6.

Sanjay Punamiya filed Appeal (L) no.352 of 2014 before

the Division Bench of this Court challenging the aforesaid order dated
7 May 2014. On 9 July 2014, when Sanjay Punamiya sought to
tender an affidavit tendering unconditional apology and withdrawing
the allegations made in his complaint dated 5 May 2014 against

::: Downloaded on - 14/11/2014 16:16:24 :::

5 of 29

CRWP.3611.2014

rt

Justice Roshan Dalvi, the Division bench of this Court specifically

brought to his notice, through his counsel, the provisions of Section

C
ou

13(b) of the Contempt of Courts Act, 1971 that justification by truth

could be pleaded as a defence. However, Sanjay Punamiya stated in

the Court that he wanted to tender an unconditional apology and

withdraw the allegations. Sanjay Punamiya then tendered affidavit
dated 30 June 2014 before the Division Bench withdrawing the
allegations made by him in his complaint dated 5 May 2014 and

ig
h

tendering unconditional apology. Again similar affidavits were filed

by Sanjay Punamiya before the Division Bench on 24 July 2014 and 2
September 2014. By order dated 5 September 2014, the Division

Bench of this Court dismissed the appeal of Sanjay Punamiya and

also directed issuance of suo motu show cause notice under section 15
of the Contempt of Courts Act, inter alia, against Sanjay Punamiya

ba
y

and his Advocate (the present petitioner).

7.

In the said order, this Court has also noted that in the suit

om

when the Plaintiff relied upon affidavits of sixteen neighbours to

show that Defendant no.1 had trespassed into the suit flat, the
Defendant no.1 filed a criminal complaint against those neighbours in
the Court of Metropolitan Magistrate, Mumbai after the Plaintiff had
filed complaint of criminal trespass against Sanjay Punamiya. Sanjay
Punamiya made similar allegations against the Metropolitan
Magistrate also to get the complaint transferred from the Court of that
Metropolitan Magistrate.

::: Downloaded on - 14/11/2014 16:16:24 :::

6 of 29

When the said suo motu contempt proceedings reached

rt

8.

CRWP.3611.2014

hearing on 13 October 2014, while the other respondents in the said

Division Bench passed the following order:

C
ou

proceedings appeared, the present petitioner did not appear and the

ig
h

Learned counsel for respondent No.1 as well as

learned counsel for respondent Nos. 3 and 4 pray for
adjournment.
Respondent Nos.1,3 and 4 shall remain present on
the next date of hearing.

om

ba
y

As far as respondent No.2 Nilesh C. Ojha is

concerned, the report dated 10 October, 2014 of the
Prothonotary and Senior Master, prima facie, indicates
that respondent No.2 is evading service of notice of the
present proceeding. Hence, a bailable warrant in the sum
of Rs.25,000/- be issued against respondent No.2 to
secure his presence in the present proceeding on the next
date of hearing, which shall be 10 November, 2014.
When the present criminal writ petition was called out,

the Petitioner moved Notice of Motion (L) No.2449 of 2014 and

pleaded for cancelling the bailable warrant and assured that he would
appear in Court on the next date of hearing of the said suo motu
contempt proceedings.
9.

In the background of the aforesaid facts, we have to

consider the prayers made in the present Criminal Writ Petition which
may broadly be classified in the following categories :-

::: Downloaded on - 14/11/2014 16:16:24 :::

7 of 29

To challenge the show cause notice issued to the

rt

(A)

CRWP.3611.2014

Petitioner under section 14 of the Contempt of Courts Act,

C
ou

1971 on the basis of the order dated 7 May 2014 of Mrs. Justice

Roshan Dalvi (Respondent no.2) and for stay of the said show
cause notice no.787 of 2014;

[prayer clauses (vii), (viii) and (ix)]

To challenge/expunge the observations made by Mrs.

ig
h

Justice Roshan Dalvi in the aforesaid order dated 7 May 2014;

[prayer clauses (i) and (ii)]

To

direct

(B)

initiation

of

prosecution

against

respondent no.2 (Mrs. Justice Roshan Dalvi) under sections

341, 342, 504, 220, 167, 191, 193, 465, 466, 211, 471, 474,

ba
y

etc., of the Indian Penal Code.

To hold that respondent no.2 (Mrs. Justice Roshan Dalvi)

om

acted without jurisdiction while detaining the petitioner and

passing order by creating false evidence and forgery of Court
records.

To take suo motu cognizance of contempt of Supreme

Court's direction in D.K.Basu case to try and punish respondent

no.2 and Police Inspector (Respondent no.3).

To grant compensation of Rs.1 crore.

[Prayer clauses (iii) to (vi)]

::: Downloaded on - 14/11/2014 16:16:24 :::

8 of 29

As far as the Plaintiff's prayers in Group-A above are

rt

10.

CRWP.3611.2014

concerned, they are all directed against the judicial order dated 7 May

C
ou

2014 passed by the Single Judge who is arraigned as Respondent no.2

in this criminal writ petition. This order dated 7 May 2014 was

passed in a Notice of Motion in the suit pending on the original side

of this Court. If at all an appeal is maintainable against such an order,
the Petitioner's remedy would be to challenge the said order in appeal.
If no appeal is maintainable, the Petitioner's remedy would be to
However, present writ petition is not

ig
h

approach a higher court.

maintainable for challenging the judicial order passed by Single Judge

of this Court. On this short ground alone, the petition is required to

be dismissed insofar as prayers (i), (ii) and (vii) to (ix) in this criminal
writ petition are concerned.

As far as prayers in Group-B are concerned, the

ba
y

11.

Petitioner is seeking criminal prosecution of a Judge of this Court in

respect of her acts when she was discharging judicial functions as a

om

Judge of this Court. Section 3(1) of the Judges (Protection) Act, 1985
grants protection to a Judge in following terms:
"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."

::: Downloaded on - 14/11/2014 16:16:24 :::

9 of 29

rt

CRWP.3611.2014

Section 4 of Judges (Protection) Act, 1985 provides saving clause,

C
ou

which reads as under :

ig
h

"4. Saving : The provision of this act shall be in

addition to, and not in derogation of, the provisions of
any other law for the time being in force providing for
protection of Judges."

Section 77 of Indian Penal Code (`IPC') also provides the following

protection to Judges :

ba
y

"77. 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."

12.

It is thus clear that in view of the aforesaid statutory

om

provisions, no Court shall entertain or continue any civil or criminal

proceeding against 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.
Prayers (iii) to (vi) in the criminal writ petition pertain to the acts
committed, things done or words spoken by Smt.Justice Dalvi when
acting in the discharge of her judicial function. On this short ground
alone, in view of the protection granted by Section 3(1) of the Judges
(Protection) Act, 1985, this criminal writ petition is liable to be
dismissed as not maintainable in respect of aforesaid prayers.

::: Downloaded on - 14/11/2014 16:16:24 :::

10 of 29

rt

CRWP.3611.2014

13.

Moreover, Section 77 of IPC also specifically provides

C
ou

that 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. A perusal of the orders
passed by Smt.Justice Dalvi in Notice of Motion No.313 of 2014 on 7
May 2014 as well as on 23 June 2014 make it clear that the Single
Judge was acting in her capacity as a Judge of this Court and was thus

ig
h

acting judicially in exercise of the power which is, or which in good

faith, she believed to be given to her by law.

Regarding temporary detention of the Petitioner,

Smt.Justice Dalvi made following observations in the order dated 7

om

ba
y

May 2014 :

"4. When this application was sought to be made by

Mr.Dwarkadas on behalf of the plaintiff, one Advocate
O.D.Kakde, who was instructed by another Advocate
Nilesh C. Ojha, interrupted Mr.Dwarkadas to state to
Court that a complaint has been made against this Court
by defendant no.1 and hence this Court must recuse
herself.
5.
The Advocate for defendant No.1 tendered a copy
of the complaint to Court which is dated 5th May 2014
and sent/received by the addressees on 5th May 2014. It
makes false, defamatory and contemptuous statements
against the Court and two other officers of this Court.
6.
The allegations and statements in the complaint
show the complainant having been approached with an
offer for corrupting the court from his acquaintance
since 11th March 2014. It shows how the complainant

::: Downloaded on - 14/11/2014 16:16:24 :::

11 of 29

CRWP.3611.2014

C
ou

rt

met that acquaintance on 12th March 2014 and

thereafter had meetings on various dates in the month of
March with regard to his allegations of corruption.
Despite these meetings and his case of corruption, the
complainant never made any complaint until 5th May
2014 after he was served the notice of the Plaintiff's
application for ad-interim relief on 2nd May 2014.

ig
h

7.
The complaint/application shows two enclosures one is copy of the plaint in this Court, the other is copy
of "the cell details amongst the applicant and some of
the non applicants". The Court called upon Advocate
Kakde to show Enclosure-2 to the complaint. He sought
to search for the record. He stated that the copy of that
enclosure is not with him and took instructions from
defendant no.1 to state that it would be brought from his
residence.

om

ba
y

8.
The Advocate has not filed any Vakalatnama. He
has not obtained the NOC of the previous Advocates.
He has made inappropriate allegations. The Court,
therefore, directed a Police Officer to accompany the
Advocate and/or defendant no.1 whilst they sought to
obtain Enclosure-2 to the complaint and to report back
to Court. They were directed not to leave the court
without the police officer. The Court detained them
until
they
obtained
Enclosure-2
to
the
complaint/application, which would be the only
evidence, if any, to corroborate the allegations therein.
The Court thus detained defendant no.1 and his
Advocate under the provisions of the initial part of
Section 345 of the Code of Criminal Procedure.
9.
Counsel on behalf of the plaintiff made the
necessary application which shall be considered
presently. Whilst that was being made, Advocate
Kakade on behalf of defendant no.1 tendered to Court a
token of Vodafone being Token No.94 dated today - 7th
May 2014 showing the time 12:32:21 p.m. being an
application for obtaining a transcript of certain calls.

::: Downloaded on - 14/11/2014 16:16:24 :::

12 of 29

CRWP.3611.2014

C
ou

rt

The Advocate stated that the statement of call details

shall be produced later. The Advocate tendered the
receipt of Vodafone bearing Mobile No.9820502288.
The Advocate has also written two other mobile
numbers on the token and on a chit given to the Court
along with token.

ig
h

10. It is clear that what is stated to be annexed to the

complaint/ application of defendant No.1 is non-existent
and could not be produced upon the Court's query to
show any corroboration of the statements in the
application/complaint.

ba
y

11. The Court saw that the application being made by

the plaintiff is sought to be thwarted. The Court cannot
be a privy to such abuse of process of law. The Court
informed defendant No.1 and the Advocate, who has not
filed any Vakalatnama, that the Court shall hear the
application. Of course, the Court would also hear
Advocate O.D.Kakade."
The aforesaid justification given by Single Judge for detaining Sanjay
Punamiya and his Advocate (present Petitioner) would clearly

om

indicate that the Single Judge believed, in good faith, that she had the
power given to her by law under the first part of Section 345 of the
Code of Criminal Procedure, 1973 to detain Defendant no.1 and his
Advocate (present Petitioner) until they obtained the documents upon
whom Defendant no.1 had relied in his complaint dated 5 May 2014
by showing it as enclosure-2.
14.

However, the Petitioner appearing in person relied upon

the provisions of sub-section (2) of Section 3 of Judges (Protection)

Act, 1985, which reads as under :

::: Downloaded on - 14/11/2014 16:16:24 :::

13 of 29

CRWP.3611.2014

Additional Protection to Judges :

(1)

...

...

C
ou

...

rt

"3.

ig
h

(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."

It is obvious that the Petitioner himself does not hold any office or
position referred to in sub-section (2) of Section 3 of

15.

(Protection) Act, 1985.

Judges

Learned Public Prosecutor Mr.Shinde relied upon the

ba
y

judgment of a Division Bench of this court in E.S.Sanjeeva Rao Vs.

Central Bureau of Investigation, Mumbai and others 1. This Court
examined the provisions of Section 77 of IPC and Sections 3 and 4 of

om

Judges (Protection) Act, 1985. The Court explained the distinction

between the provisions of sub section (1) of Section 3 of the Judges
(Protection) Act, 1985 on the one hand and provisions of sub section
(2) of Section 3 of the said Act on the other and held that the
prosecution cannot be launched on the basis of an act, such as
delivery of a judgment delivered by a Judge in the course of his
official duty.

But Government can initiate criminal proceedings

under sub section (2) of Section 3 of Judges (Protection) Act, 1985 on

the basis of material which could show that the judgment which was
given, was based on extraneous considerations after accepting bribe
1 2013-ALL.MR. (Cri)-933

::: Downloaded on - 14/11/2014 16:16:24 :::

14 of 29

CRWP.3611.2014

rt

and if such complaint had been filed, the officer could not have asked

C
ou

for protection under Section 3(1) of the Judges (Protection) Act, 1985.
16.

It is also pertinent to note that Section 197 of Code of

Criminal Procedure, 1973 (`Cr.P.C.') provides that when any person

who is or was a Judge or Magistrate, 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

ig
h

such offence except with the previous sanction of the appropriate

Government i.e. the appointing authority. The appointing authority of
a High Court Judge is the President of India.

In case of

K.Veeraswami Vs. Union of India2, the Supreme Court has held that
President of India shall not grant sanction to prosecute a Judge of the
High Court, Chief Justice of High Court or Judge of the Supreme

ba
y

Court, if the Chief Justice of India is of the opinion that it is not a fit
case for grant of sanction for prosecution of the Judge concerned. It
would, of course, be obvious that if President of India is not inclined

om

to grant any such sanction in the first place, there would be no need
for the President of India to consult the Chief Justice of India in the
matter.
The Supreme Court observed as under :
Any complaint against a Judge and its investigation
by the CBI, if given publicity will have a far reaching
impact on the Judge and the litigant public. The need
therefor, is a judicious use of taking action under the
Act. Care should be taken that honest and fearless
2 (1991)3-scc-665

::: Downloaded on - 14/11/2014 16:16:24 :::

15 of 29

CRWP.3611.2014

ig
h

C
ou

rt

judges are not harassed. They should be protected.

The Act is not basically defective in its application to
judiciary. All that is required is to lay down certain
guidelines lest the Act may be misused. This Court
being the ultimate guardian of rights of people and
independence of the judiciary will not deny itself the
opportunity to lay down such guidelines. It is
accordingly directed that no criminal case case
shall be registered under Section 154 of Cr.P.C.
against a Judge of the High Court, Chief Justice of
High Court or Judge of the Supreme Court unless
the Chief Justice of India is consulted in the matter.
Due regard must be given by the government to the
opinion expressed by the Chief Justice of India. If
the Chief Justice of India is of opinion that it is not
a fit case for proceeding under the Act, the case
shall not be registered.

om

ba
y

There shall be similar consultation at the stage of

examining the question of granting sanction for
prosecution and it shall be necessary and
appropriate that the question of sanction be guided
by and in accordance with the advice of the Chief
Justice of India. It is necessary that the Chief
Justice of India is not kept out of the picture of any
criminal case contemplated against a Judge. He
would be in a better position to give his opinion in
the case and consultation with the Chief Justice of
India would be of immense assistance to the
government in coming to the right consultation.
Undoubtedly, respect for the judiciary and its public
credibility and dignity has to be maintained in order to
ensure respect for the Judges in public and also for the
decisions rendered by the Judges. ... In order to
adequately protect a Judge from frivolous
prosecution and unnecessary harassment the
President will consult the Chief Justice of India
who will consider all the materials placed before
him and tender his advice to the President for
giving sanction to launch prosecution or for filing

::: Downloaded on - 14/11/2014 16:16:24 :::

16 of 29

CRWP.3611.2014

17.

ig
h

C
ou

rt

FIR against the Judge concerned after being

satisfied in the matter. The President shall act in
accordance with advice given by the Chief Justice
of India. If the Chief Justice is of opinion that it is
not a fit case for grant of sanction for prosecution
of the Judge concerned the President shall not
accord sanction to prosecute the Judge. This will
save the Judge concerned from unnecessary
harassment as well as from frivolous prosecution
against him. Similarly in the case of Chief Justice of
India the President shall consult such of the Judges of
the Supreme Court as he may deem fit and proper and
the President shall act in accordance with the advice
given to him by the Judge or Judges of the Supreme
Court.

In Anil Kumar and others Vs. M.K.Aiyappa and

another3, the Supreme Court has examined the question of sanction

ba
y

for prosecution of a public servant in the context of provisions of

Sections 156(3), 190, 200 and 202 of Cr.P.C. and has held that where
jurisdiction is invoked on a complaint filed in terms of Section 156(3)

om

or Section 200 of Cr.P.C., the Magistrate is required to apply his mind

and cannot refer the matter under Section 156(3) against a public
servant without a valid sanction order. The Supreme Court has also
held in the said decision that requirement of sanction is a precondition for ordering investigation under Section 156(3) of Cr.P.C.
even at a pre-cognizance stage. When it was contended before the
Supreme Court that in case of prosecution under Prevention of
Corruption Act, 1988, absence of sanction will not vitiate any finding,
sentence or order passed by a Special Judge unless a failure of justice
has in fact been occasioned thereby, the Supreme Court observed that
3 (2013)10-SCC-705

::: Downloaded on - 14/11/2014 16:16:24 :::

17 of 29

rt

CRWP.3611.2014

such a provision (Section 19(3) of Prevention of Corruption Act, 1988) does

C
ou

not mean that the requirement to obtain sanction is not a mandatory

requirement. The Court then held as under :

"Once it is noticed that there was no previous sanction,

as already indicated in various judgments, the

ig
h

Magistrate cannot order investigation against a public

servant while invoking powers under Section 156(3) of
Cr.P.C. The above legal position, as already indicated,
has been clearly spelt out in State of Uttar Pradesh Vs.

Paras Nath Singh4 and Subramanium Swamy Vs.

ba
y

Manmohan Singh and another5.

In view of the above settled legal position, no Judge can

be prosecuted without a prior sanction, whether the alleged offence is

om

punishable under the provisions of Prevention of Corruption Act,

1988 or under the Indian Penal Code or under any other law.

18.

The Petitioner contended that the Supreme Court has laid

down the law for grant of deemed sanction and that since the
Petitioner had submitted an application to the President of India on 21

4 (2009)6-SCC-372
5 (2012)3-SCC-64

::: Downloaded on - 14/11/2014 16:16:24 :::

18 of 29

rt

CRWP.3611.2014

May 2014 to prosecute Respondent no.2 herein, there is deemed

Swamy Vs. Manmohan Singh and another.

C
ou

sanction as per the decision of Supreme Court in Subramanium

The argument is misconceived.

The Petitioner's

application to the President of India is in respect of the same alleged

offences for which the Petitioner has sought directions in the present

ig
h

writ petition. All those alleged offences are punishable under Indian
Penal Code. Section 6 of IPC lays down that through out the IPC,
every definition of an offence shall be understood subject to the

exceptions contained in the Chapter entitled General Exceptions,

though those exceptions are not repeated in such definition.

In

Chapter-IV General Exceptions, Section 77 provides that nothing

ba
y

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. Secondly, in Subramanium Swamy case, the

om

Supreme Court was not concerned with the provisions of Section 3 of

Judges (Protection) Act, 1985. Thirdly, the observations made by the
Supreme Court in Subramanium Swamy case were concerning the
offences falling under the provisions of Prevention of Corruption Act,
1988 and not relating to the offences which are subject matter of
present petition.
19.

At the hearing, the Petitioner relied upon the following

decisions in support of the contention that no sanction would be

required for prosecuting a Judge.

::: Downloaded on - 14/11/2014 16:16:24 :::

19 of 29

Anowar Hussain Vs. Ajoy Kumar Mukherjee and

rt

20.

CRWP.3611.2014

C
ou

others - AIR-1965-SC-1651 :-

In this case, the officer was holding two offices - one as

an executive officer as a Sub Divisional Officer and other as a judicial
officer as a Sub Divisional Magistrate. The officer ordered arrest of
the Plaintiff but the proceedings were closed without trial.

The

Plaintiff sued the officer for damages for false imprisonment. The

ig
h

Supreme Court held that in view of his admission that he had not
taken cognizance as a Magistrate of the offence alleged against the
Plaintiff before ordering his arrest, and his main defence that he had

acted under the direction of his superior executive officer, he must be

held to have acted in his executive capacity and not in discharge of
his duties as a Magistrate and hence was not entitled to protection

ba
y

under Judicial Officers' Protection Act, 1850. The case is, therefore,
clearly distinguishable as in the present case, Respondent no.2 was
acting only as a Judge of this Court and not in any executive capacity.

om

Moreover, the judgment clearly lays down that the Act grants large
protection to Judges and Magistrates acting in the discharge of their
judicial duties.
21.

Raman Lal Vs. State - 2001-Cri.L.J.-800

This was a case where the allegation against an

Additional Judge of Gujarat High Court was that the Additional Judge
along with a Police Officer and others was alleged to have hatched a
conspiracy to falsely implicate a shop owner in Rajasthan and when
the shop owner submitted to their demands, he was discharged. The
Court held that there was no connection between the official duty and

::: Downloaded on - 14/11/2014 16:16:25 :::

20 of 29

CRWP.3611.2014

rt

the offence. Therefore, no sanction was required. In that case, the

prosecution was not in respect of any act committed by the Judge

C
ou

when acting judicially in the exercise of any power given to him by

law. The act attributed to the Judge had nothing to do with the
discharge of his official duty as a Judge.
22.

B.S.Sambhu Vs. T.S.Krishnaswamy AIR-1983-SC-64

In this case, the Respondent, an Advocate, was

ig
h

representing a party which moved an application for transfer of the

suit from the Court of the Appellant-Magistrate to another Court. The
District Judge called for the remarks from the Appellant-Magistrate

regarding certain allegations which were made in the transfer

application. The Appellant submitted his remarks wherein he called
the advocate as rowdy, a big gambler and a mischievous

ba
y

element. The letter was read out by the District Judge in open Court.
The Respondent filed a complaint against the Appellant-Magistrate
alleging defamation under Section 499 of IPC. The question raised

om

was whether the Court could take cognizance of the offence alleged
against Appellant-Magistrate in absence of proper sanction as
contemplated in Section 197 of Cr.P.C.

The learned Magistrate

hearing the complaint negatived the contention of the AppellantMagistrate that the sanction was necessary.

The High Court

confirmed that view. In appeal, the Supreme Court confirmed the

above concurrent views.
The letter written by the Appellant-Magistrate was not a
judicial order but a communication sent to the District Judge which
was read out by the District Judge in the open Court.

::: Downloaded on - 14/11/2014 16:16:25 :::

21 of 29

rt

CRWP.3611.2014

In the instant case, the Petitioner's grievance is about a

C
ou

judicial act committed and judicial order passed by the Second

Respondent and, therefore, Section 3(1) of the Judges (Protection)

Act, 1985 would clearly apply.
23.

Bidhi Singh Vs. M.S.Mandyal and another

1993-CR.L.J.-499

ig
h

In this case, the Respondent was a Sub Divisional

Judicial Magistrate at the relevant time when the Appellant was a
Head Constable who escorted some under trial prisoners for their

production in the Court. On seeing that the under trial prisoners were
brought before him hand-cuffed, the Respondent-Magistrate lost his
temper and abused the Appellant by uttering words non-sense and

ba
y

bloody fool. The Appellant filed a complaint in the Court of Chief

Judicial Magistrate alleging that the Resopondent Magistrate had
intentionally insulted the Appellant and had given provocation to him,

om

knowing that it was likely to cause the complainant to break public

peace.

The Chief Judicial Magistrate issued summons to the

Respondent under Section 504 of IPC and the Respondent challenged

said order in criminal revision before Additional Sessions Judge. The
Sessions

Judge

held

that

the CJM could not have

taken

cognizance of the comkplaint in the absence of a proper sanction

under Section 197 of Cr.P.C. and proceedings were quashed. The
High Court held that use of the above words by the RespondentMagistrate cannot be said to be one attributable to him while acting
or purporting to act in the sicaharge of his official duty. However,

::: Downloaded on - 14/11/2014 16:16:25 :::

22 of 29

CRWP.3611.2014

rt

the High Court declined to interfere with the order passed by the
Sessions Court and dismissed the criminal miscellaneous petition on

C
ou

the ground that the action complained of had become stale by lapse of
time and also because in respect of the same incident, the
Respondent-Magistrate had made a reference to the High Court for

initiation of contempt proceedings against the Appellant-Complainant

and his witnesses. The complaint by the Head Constable against
Respondent-Magistrate was filed after the Respondent made a

ig
h

reference to the High Court.

It is necessary to note that the High Court took the view

that the Presiding Judge is expected to maintain decorum in the

proceedings before him. He is expected also to act with restraint.
One would expect him to be sober, unruffled and temperate in

ba
y

language even when faced with a situation where those appearing

before him may tend to lose their composure.
quarrel with

While here can be no

this approach, we would like to express some

om

reservation in respect of underlying words in the following

observations made by the High Court ....

....

...

the

action

should be consistent with the dignity of the high pedestal on which

society places him, while he is discharging his duty as a Judge. In
this scheme of things any vituperative outburse on the part of the
Presiding Officer, howsoever grave the provocation to him, cannot be
countenanced as an action sustainable as one performed by him
while acting or purporting to act in the discharge of his official
duty.

::: Downloaded on - 14/11/2014 16:16:25 :::

23 of 29

CRWP.3611.2014

rt

In the facts of the present case, no such unparliamentary

upon by the Petitioner need not detain us.
24.

C
ou

words are attributed to the learned Judge. Hence, the authority relied

Muhammad Shafi Vs. Choudhary Qadir Bakhsh,

Magistrate, 1st Class AIR-1949-Lah-270

The question which was considered by the Full Bench of

Lahore High Court in this case was whether the Respondent

ig
h

Magistrate had committed contempt of Court.

The following

paragraph in the judgement would indicate that the High Court took
strong exception to the Respondent Magistrate using highly

unparliamentary words against another Magistrate and the Lawyer :

om

ba
y

5. There was, however, no occasion whatever for the

Magistrate to lose his temper completely, to jump up
from his chair and to begin shouting at the counsel who
had dared to secure such an injunction. The words used
by the respondent gather ominous significance when all
the surrounding circumstances are taken into
consideration. Mr.Manzur Qadir urged that while cases
are being argued in various Courts, an order is often
termed as a foolish order and that no serious notice is
ever taken of such an epithet. Mr.Manzur Qadir is
evidently referring to occasions when an order of a
subordinate Court is being challenged in an appellate
Court or in a Court of revision. In those circumstances
it is the duty of the counsel to point out all the defects
that exist in the order that he wishes to challenge. The
counsel may letigimately submit that the order is wrong,
foolish or even perverse. The atmosphere and the
circumstances, in which such submissions are made, are
completely different from the scene created in a Court
of law by Chaudhari Qadir Bakhsh by getting up from
his chair and by hurling insulting epithets at the counsel

::: Downloaded on - 14/11/2014 16:16:25 :::

24 of 29

CRWP.3611.2014

C
ou

rt

who had dared to obtain an injunction. In these

circumstances, the remark that this is a foolish order
passed by a foolish Sub-Judge and secured by a foolish
lawyer certainly amounts to contempt of the Court of
Mian Muhammad Salim.

In the facts of the present case, no such unparliamentary

words are attributed to the learned Judge. Hence, the authority relied

25.

ig
h

upon by the Petitioner need not detain us.

State of Uttar Pradesh Vs. Tulsi Ram and others

AIR-1971-All-162

In this case, the Plaintiff-Respondents were prosecuted for

offences punishable under Sections 148, 323, 324, 325 and 307 of IPC
in the Sessions Court. While one of the accused was acquitted by the
One of

ba
y

Sessions Court, four others were convicted and sentenced.

them came to be acquitted by the High Court. The High Court's order,
therefore, authorized the arrest of remaining three convicts whose
appeals were dismissed. The certified orders were sent to the Sessions

om

Court. The Sessions Court forwarded those orders to the Committing

Court, a judicial officer, for compliance. All that the judicial officer
had to do was to issue warrants of arrest against the three convicted
persons who did not surrender, so that the High Court's order may be
duly complied with.

The Committing Court, however, signed the

warrants of arrest of five persons including two accused who were

acquitted either by the Sessions Court or by the High Court. This was

so, in spite of the fact that the Magistrate's order itself authorized
issuance

of

warrants

against three convicts only.

The above

resulted into two Plaintiffs being arrested by the Police and being

::: Downloaded on - 14/11/2014 16:16:25 :::

25 of 29

CRWP.3611.2014

rt

hand-cuffed and taken from their village to the Police Station six
miles away and detained in the lock-up and released one hour

C
ou

thereafter. This was done on the day of important festival of Holi in

the presence of their relations, friends and fellow villagers. The two
Plaintiffs, therefore, filed a suit for damages against the Magistrate.

It was in the background of the above facts that

Allahabad High Court held that the Magistrate was not performing a

ig
h

judicial function but was performing purely a ministerial function to

see that the directions of the High Court were duly carried out. The
Magistrate was certainly not executing any order in signing the

warrants for those who had been acquitted. Hence, the Magistrate
was not protected by the Judicial Officers' Protection Act for signing
the warrants negligently. The High Court, therefore, passed a decree

ba
y

of damages against the Magistrate and set aside the decree for
damages against the State Government.

om

The facts stated hereinabove are too eloquent to be

compared with the facts in the present case.

26.

Saileajnand Pande Vs. Suresh Chandra Gupta

AIR-1969-Patna-194
In this case, a decree for damages for wrongful arrest for

four days was passed against the Magistrate. The Plaintiff's case was
that Defendant no.1, who was a certificate officer of Baghmara, in
order to coerce and put undue pressure upon the Plaintiff to pay the
certificate dues, sent him to hazat. This fact was not disputed in the

::: Downloaded on - 14/11/2014 16:16:25 :::

26 of 29

CRWP.3611.2014

rt

written statement but was tacitly admitted. The High Court found that
no reason was recorded in the order as to why this extaordinary and
under arrest.

C
ou

over zealous step was taken by the Magistrate to put the Plaintiff

The High Court also found that the action of the

Magistrate was highly deplorable as questionable and unlawful

method was adopted to achieve the object of realising the certificate
dues. The fact of not releasing the Plaintiff on bail for three days was
a part of this method and, therefore, the High Court held that such

ig
h

action should not be considered as exercise of judicial power which

was protected under Section 1 of Judicial Officers Protection Act,

1850, which read as under :

om

ba
y

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 ... ... ...
The facts of the present case are quite distinguishable as

indicated in paragraphs 4 to 11 of the order of learned Single Judge

and quoted in paragraph 13 hereinabove are quite different and,
therefore, the decision relied upon by the Petitioner is clearly
distinguishable on facts.

::: Downloaded on - 14/11/2014 16:16:25 :::

27 of 29

In view of the above discussion, we do not find any merit

rt

27.

CRWP.3611.2014

in the Petitioner's contention that the acts in question were not

C
ou

committed in the purported discharge of her duties by Respondent

no.2 as a Judge of this Court. The acts in question were very much
performed when Respondent no.2 was acting as a Judge of this Court.
In this view of the matter, in the facts of the present case, Respondent
No.2 would get protection under section 3(1) of the Judges
(Protection) Act, 1985 read with section 77 of the IPC, and no Court

ig
h

can entertain or continue any civil or criminal proceeding against

Respondent No.2 for any act, thing or word committed, done or
spoken by her when, or in the course of, acting or purporting to act in

the discharge of her official or judicial duty or function.

28.

That leaves only one prayer, being prayer (x) which reads

om

ba
y

as under :

"(x) To order installing of CCTV cameras in all courts

to avoid such incidences in future and to ensure fair trial
and proceedings for Judge, Advocates and litigants."

This is a much wider question to be decided by this Court on the

administrative side after considering all the pros and cons and after
considering the views of all the stake holders. If at all any writ
petition could be filed for such a relief, it would be a civil writ
petition. The Petitioner, however, appears to have deliberately chosen
to file present writ petition as a criminal writ petition for arraigning a
sitting Judge of this Court who has issued a contempt notice against
the Petitioner under Section 14 of the Contempt of Courts Act, 1971

::: Downloaded on - 14/11/2014 16:16:25 :::

28 of 29

CRWP.3611.2014

rt

and for thwarting the proceedings which the Petitioner is facing under
Sections 14 and 15 of the Contempt of Courts Act, 1971. These

C
ou

proceedings shall continue and the Petitioner cannot be allowed to

stall those proceedings on the ground of any such prayer which can be
considered only in the future, and in appropriate proceedings, which
may be filed by a person who may be found to be fit to carry the writ
of this Court.

For the reasons aforesaid, it is directed that in view of the

ig
h

29.

protection granted by Section 3(1) of the Judges (Protection) Act,

1985 and Section 77 of the Indian Penal Code, 1861, no Court in the

States of Maharashtra and Goa, Union Territories of Daman, Diu,

Dadra and Nagar Haveli shall entertain any prosecution or any
complaint under any provision of the Code of Criminal Procedure,

ba
y

1973, including under section 156(3) of Cr.P.C. for investigation

against a Judge of this Court or any judicial officer in respect of an
offence alleged to have been committed in the discharge or purported

om

discharge of official duty or judicial function by passing a judicial

order or by committing any act or omission or by doing anything or
by speaking any words in the Court precincts.
30.

Where the act constituting an offence is alleged to have

been committed by passing a judicial order or committing an act

within the Court precincts coupled with some other material and on
that basis the case falls under Section 3(2) of the Judges (Protection)
Act, 1985, as explained by this court in E.S.Sanjeeva Rao Vs. CBI,
Mumbai and others (supra), prior sanction of the Competent

::: Downloaded on - 14/11/2014 16:16:25 :::

29 of 29

CRWP.3611.2014

rt

Authority will be required to initiate prosecution. Once it is noticed

that there is no prior sanction, no Special Judge or Magistrate will

C
ou

have the jurisdiction to order an investigation against a Judge by

invoking section 156(3) of the Code of Criminal procedure, 1973. In
view of the above settled legal position, in such a case, neither a
Court of Sessions nor a Magistrate's Court shall take any steps under

section 156(3) of the Code of Criminal Procedure, 1973 even for the

31.

ig
h

purpose of recording statement of complainant or his witness.

Subject to the above directions, this criminal writ petition

32.

is dismissed.

The Registrar General shall circulate a copy of this

judgment to all the Sessions Judges and all the Magistrates in States

ba
y

of Maharashtra and Goa, Union Territories of Daman, Diu, Dadra and

om

Nagar Haveli.

(CHIEF JUSTICE)

(B.P.COLABAWALLA, J.)

MST

::: Downloaded on - 14/11/2014 16:16:25 :::