Delhi Judicial Service Association Tis Hazari Court, Delhi v. State of Gujarat and Ors.
(Sept.11, 1991)
Facts of Case
Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in effecting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened. On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and he withdrew constables posted in the CJM Court. In April 1989, the CJM filed two complaints with the Police against the Police Inspector and other Police Officials, Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the police to register a criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases. The Police Inspector reacted strongly to the CJM’s direction and he made complaint against the CJM to the Registrar of the High Court through the District Superintendent of Police.
On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM. On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case where the Police had failed to submit the charge-sheet within 90 days. During discussion the Police Inspector invited the CJM to visit the police station to see the papers and assured him that he would mollify the sentiments of the police officials.
At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM’s residence and he went to the Police Station. According to the CJM when he arrived in the Police Station he was forced to consume liquor and on his refusal he was assulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and Constable and that he was sent to Hospital for Medical Examination under handcuffs. A photographer was arranged to take his photograph which was published in the newspapers. The Police Inspector disputed these allegations and according to him the CJM entered his chamber at the Police Station in a drunken state, shouting and abusing him and since he was violent, he was arrested, handcuffed and sent to Hospital for Medical Examination. He himself wanted to be photographed and that is why the photographs were taken by the press photographer.
Guidelines
A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, Supreme Court issued the following guidelines –
(A) Before arrest intimation to the District Judge or the High Court– If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.
(B) In case of necessity only formal arrest– If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.
(C) After arrest intimation to the District Judge and High Court -The facts of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.
(D) Not taken to Police Station without prior order of District & Sessions Judge – The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.
(E) Immediate facilities – Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge.
(F)No statement, no panchnama, no medical test except in the presence of the Legal Adviser – No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, is available.
(G) No handcuffing– There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and’ handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.
The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a judicial officer.