Can an FIR be filed against a sitting judge?

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Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: First information report (FIR), Criminal Procedure Code, Prevention of Corruption Act, Judges (Protection) Act of 1985

Mains level: Various laws and statutes related to judicial appointments and functioning


Context

  1. Can the police or any investigating agency file a first information report (FIR) against a sitting High Court or a Supreme Court judge and even the Chief Justice of India?

K. Veeraswami case

  1. A majority judgment delivered by a five-judge Constitution Bench of the Supreme Court, in this case, answers the above question
  2. The majority held that no criminal case shall be registered under Section 154 of the Criminal Procedure Code (an FIR) against a judge of the High Court, Chief Justice of the High Court or a judge of the Supreme Court unless the government first “consults” the Chief Justice of India
  3. The justification given was that the CJI’s assent was imperative as he was a “participatory functionary” in the appointment of judges
  4. The majority in the Constitution Bench classifies a judge as a “public servant”
  5. The Veeraswami case specifically dealt with the Prevention of Corruption Act in judiciary, but the majority judgment had extended its ambit to “any criminal case”

How important is CJIs opinion?

  1. Due regard must be given by the government to the opinion expressed by the Chief Justice
  2. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered
  3. If the CJI allows the FIR to be registered, the government shall, for the second time, consult him on the question of granting sanction for prosecution
  4. Consultation with the CJI while registering a criminal case against a judge, whether of the High Court or the Supreme Court, has been made mandatory to protect the independence of judiciary

What if CJI himself is the accused?

  1. The verdict held that if the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court

Procedure for other judicial officers

  1. The Supreme Court has also laid down guidelines for the arrest of a judicial officer of the subordinate judiciary
  2. This has been done by the Delhi Judicial Service Association versus State of Gujarat judgment of the Supreme Court
  3. The court held that a judicial officer “should be arrested for any offense under intimation to the District Judge or the High Court”
  4. The immediate arrest shall only be a “technical or formal arrest”, after which it should be immediately communicated to the District and Sessions Judge of the district concerned and the Chief Justice of the High Court
  5. The arrested judicial officer shall not be taken to a police station without the prior orders of the District Judge and no statements shall be recorded from him or her except in the presence of a counsel
  6. He or she will not be handcuffed

Exemptions provided to Judges

  1. Section 3 of the Judges (Protection) Act of 1985 protects judges and former judges of the Supreme Court and the High Courts from “any civil or criminal proceedings” for any act, thing or word committed, done or spoken by him in the course of their judicial duty or function
  2. No court shall entertain such complaints
  3. Section 77 of the Indian Penal Code exempts judges from criminal proceedings for something said or done during judicial duties

Option available to government

  1. The government can initiate criminal proceedings against a sitting or former judge of a superior court under subsection (2) of Section 3 of Judges (Protection) Act, 1985
  2. This can be done if it can produce material evidence to show that a judgment was passed after taking a bribe
Judiciary Institutional Issues
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