This article is written by Kavya Lakshmi, Intern at Legal Vidhiya.
INTRODUCTION:
The Indian penal code is designed to cover all substantive aspects of criminal law. The Indian penal code was enacted on 6th October 1860. The main objective of this code is to provide a general penal code. The IPC is divided into 23 chapters, which consist of 511 sections. It not only covers the crimes, punishments, and offences against the state, body, public, etc. but also provides general exceptions.
Chapter IV of the Indian Penal Code 1860, containing sections 76 to 106, deals with the general defences. When a person has committed an offence and is liable to be punished by law due to some special conditions specified under the law, he is excused from such punishment. This, the concept of exception from legal punishment is called a general exception.
In this case, when a person is accused of any offence, and wants to rely on an exception, then the burden of proving that circumstances of the case fall within the exception lies on the accused person. These exceptions are categorized into two types. They are:
1. Excusable exception
2. Justifiable exception
1. Excusable exception: These are the exceptions that excuse the person who committed a crime but can not be blamed for the committed crime. This includes mistake of fact, accident, insanity, infancy, and intoxication.
2. Justifiable exception: These exceptions are provided when the accused’s actions are legally justified. Judicial acts (sections 77 & 78) come under this exception.
JUDICIAL ACTS AND EXECUTIVE ACTS:
Judge: In general, judge means a person or a public official authorized to decide the case in a court of law. According to section 19 of the Indian penal code, the word judge not only denotes the person officially designated as a judge but also includes any person who is authorized by law to give judgment in any civil or criminal legal proceeding. It also includes the judgments that would be considered final if confirmed by another authority.
Section 77: Act of judge when acting judicially
This section protects the judge when he’s acting judicially. Section 77 of the Indian Penal Code states that “ nothing is an offence which is done by the judge when acting judicially in the exercise of any power, which is, or which in good faith the judge believes to be, given to him by law.
Section 77 protects the judge from criminal prosecution. It means that if the judge, while acting judicially or while discharging his functions empowered by law or discharging his duties which he believes to be given to them by the law in good faith, commits any offence, then the judge can take the defence.
To invoke the defence of the judicial act under section 77, the following conditions are to be satisfied.
- The act must have been done by a judge in the discharge of his official duty,
- The act done must be within his jurisdiction, and
- The act must be performed in good faith.
- In discharge of official duty: A person exercising his own judgement in judicial capacity is responsible to decide all questions of fact and matters of law. Such persons cannot be held liable for an error or mistake, whether it is related to fact or of law. This exemption is provided when the judge acts judicially. For example, a collector organizing a revenue related matter, or a magistrate who’s clearing on obstruction etc., are not considered to be acting judicially while performing these tasks.
- Within his jurisdiction: The acts of the judges are protected under this section only when it is done within their jurisdiction, whether the acts done are irregular or erroneous. Therefore, the judges acting beyond or without jurisdiction would not be protected.
- Good faith: Section 52 of IPC states that “nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. It means if an act is done with due care and attention, then it can be said that the act was done in good faith. Due care and attention means and implies a genuine effort to approach the truth. Simple belief by itself is not enough to prove good faith. For example, a police officer while doing a search cannot be said to have acted in good faith without complying with the provisions of CrPC.
Case law: In Meghraj vs Zakir, the Allahabad court held that ‘the person acting judicially cannot be held liable for an act done or ordered to be done in carrying out his official duty within the boundaries of his jurisdiction and in such a case the question, whether he acted in good faith doesnot arise. The question of good faith is irrelevant only when a judge acts without jurisdiction, but when there is jurisdiction, the immunity extends even to acts which constitute even an abuse of it.
However, the privilege of judges under section 77 does not extend to acts when a judge knowingly exceeds his authority or does something contrary to the law.
Section 78: Act done pursuant to the judgment or order of Court: Section 78 is wider than section 77 that is given to a judge.
This section states that “ nothing which is done in pursuance of or which is warranted by the judgement or order of, a Court of Justice, if done whilst such judgement or order remains in force, is an offence notwithstanding the court may have had no jurisdiction to pass such judgement or order provided the person doing the act in good faith believes that the court had such jurisdiction.”
In the opinion of Lord Hales ‘ the order of a Court, having a color of jurisdiction, though acting erroneously, is enough to justify the ministerial officer.
This Section gives protection to officers acting under the authority of a judgement or order of the Court of Justice I.e., this section protects the ministerial officers of Courts of Justice and other persons from criminal liability for what they do in execution of the orders or decrees of the Judge. For example, by order of Court, A an officer of court arrested B. Here, there is no offence committed by A.
It is established that a person can be afforded protection even when that court has no jurisdiction over a judgement or order, or who follows it. It also extends to any errors or inaccuracies, whether they be of fact or law, made in carrying out the judgement or order. But the person doing the act in good faith must believe that the court had such jurisdiction.
However, the protection under this section, cannot be extended to the execution of oral orders of a judge and also if a person exceeds the power given to him by the court.
Case law: In Thacoordoss nundi vs Shunkur Roy it was held thatofficers of court who arrest a judgment-debtor going to court in obedience to a summons, are not protected under this section 1.
In Anderson v . McQueen, the court held that the officers of court would not be protected if they illegally used force for the execution of decree 2.
- It may be noted that under section 77 the judge must act and discharge his duties within the jurisdiction to be protected but section 78 grants protection to the officer even when the court has no jurisdiction.
Judicial and executive acts under other laws:
The judges or judicial officers and the persons acting under the authority or order of a Court of law can also be protected by other laws, like under the law of torts and under the judicial officer’s protection act 1850.
- Judicial acts under the law of torts states that the judges can make a defence for the act done or words spoken by him while discharging his official duties. No action lies against him even if the acts or words are not done or spoken in the honest exercise of his office. It is stated under the justification of torts.
- Executive acts under the law of torts states that public official cannot be held liable for the enforcement of his duties or process of any law carried within the jurisdiction authorised by his authority. But the public official to claim this defence must act in a reasonable manner and within the jurisdiction.
In Clarke vs woods, it was held that officers will be liable when the process issued by the court has no jurisdiction. Persons who are acting under public officials or authorities are also protected under this. In India, the Judicial Officer’s Protection Act protects officers of the Court as well. Police officers are protected in the performance of their executive duties by express legislative enactments in India, like the various Police Acts.
In the case of Narasimha Shankar vs imam valad the court observed that the defendant(police) was acting in accordance to the lawful order given by his Superior authority and held that there is no claim that the defendant acted with malicious towards the plaintiff.
From the above case it is clear that, an officer shall not be liable for act processed according to law unless it is proved that he did the act out of malicious or bad intentions.
- Act XVIII of 1850 protects the judge, magistrate, justice of the peace, the collector, and the other persons acting judicially when the acts are done in discharge of their official duties, whether the acts are within or beyond the jurisdiction, but at the time of the act in good faith, he should believe that act done is within the jurisdiction.
CONCLUSION:
From the above topic it can be concluded that Judges cannot discharge their functions effectively and independently with the fear, that a suit may be brought against them by the parties for the acts they have committed during their judicial process. It also applies to the public officials and the other persons, working under the instructions of their senior authority. Therefore, it is necessary to protect the judicial and executive authorities from the acts done by them while discharging their judicial and executive functions in a good faith and within the jurisdiction. These general exceptions acts as a good defence for them.
References:
1. THE INDIAN PENAL CODE AND OTHER ACTS OF THE GOVERNOR GENERAL RELATING TO OFFENCES by SW . F AGNEW OF LINCOLN’S INN. , ESQ
2. THE INDIAN PENAL CODE AND OTHER ACTS OF THE GOVERNOR GENERAL RELATING TO OFFENCES by SW. F AGNEW OF LINCOLN’S INN. , ESQ
3. THE INDIAN PENAL CODE with COMMENTARY BY HAMILTON Criminal BARRISTER – AT-LAW, PRESIDENCY MAGISTRATE , BOMBAY ,
4. INDIAN PENAL CODE , ( ACT XLV . OF 1860 ) BY W. MORGAN AND A. G. MACPHERSON, ESQRS
5. https://www.writinglaw.com/judicial-acts-as-general-exception/
6. https://blog.ipleaders.in/general-exceptions-under-indian-penal-code/
7. The Indian Penal code, 1860.
8. THE ENGLISH AND INDIAN LAW OF TORTS . BY RATANLAL RANCHHODDAS, AND DHIRAJLAL KESHAVLAL THAKOR.
9. https://indiankanoon.org/doc/1702674/
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