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Can an FIR be filed against a sitting decide?

Can an FIR be filed against a sitting decide?

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Can the police or any investigating agency file a first files speak (FIR) against a sitting Excessive Court or a Supreme Court decide and even the Chief Justice of India?

The inquire used to be time and again asked by Justice Arun Mishra in a Structure Bench hearing on November 10. Justice Mishra used to be time and again heard telling imply Prashant Bhushan that it is contempt to impart that the FIR within the medical college bribery case straight involves the Chief Justice of India. “It is a ways contempt to impart that the FIR names the CJI. Can there be an FIR against a sitting decide of a kindly court docket? That is no longer the process,” Justice Mishra seen. So, what’s the process? The resolution is stumbled on within the bulk judgment delivered by a 5-decide Structure Bench of the Supreme Court within the Okay. Veeraswami case.

 

Stipulated pointers

The majority held that no legal case shall be registered below Portion 154 of the Prison Scheme Code (an FIR) against a decide of the Excessive Court, Chief Justice of the Excessive Court or a decide of the Supreme Court unless the authorities first “consults” the Chief Justice of India. The justification given used to be that the CJI’s assent used to be imperative as he used to be a “participatory functionary” within the appointment of judges.

The Veeraswami case specifically handled the Prevention of Corruption Act in judiciary, however the bulk judgment had prolonged its ambit to “any legal case”.

“Due regard wish to be given by the authorities to the thought expressed by the Chief Justice. If the Chief Justice is of thought that it is no longer a fit case for proceeding below the Act, the case shall no longer be registered,” the bulk judgment held.


 

The decision held that if the the Chief Justice of India himself is the actual person against whom the allegations of legal misconduct are got, the authorities shall consult any a selection of decide or judges of the Supreme Court.

If the CJI lets within the FIR to be registered, the authorities shall, for the 2d time, consult him on the inquire of granting sanction for prosecution.

The Veeraswami judgment holds that “it shall be wanted and acceptable that the inquire of sanction be guided by and based fully on the advice of the Chief Justice of India”. The majority within the Structure Bench classifies a decide as a “public servant”.

Consultation with the CJI whereas registering a legal case against a decide, whether or no longer of the Excessive Court or the Supreme Court, has been made wanted to guard the independence of judiciary.

Similarly, the Supreme Court has also laid down pointers for the arrest of a judicial officer of the subordinate judiciary.

Fully a formal arrest

The Delhi Judicial Carrier Association versus Instruct of Gujarat judgment of the Supreme Court used to be the made of the notorious remedy meted out to the Nadiad Chief Judicial Justice of the Peace by a pair of Gujarat police officials. It had the country’s unprejudiced and judicial bodies in an uproar, compelling the Supreme Court to enviornment directions of the process to be adopted whereas appealing a judicial officer. Basically, the court docket held that a judicial officer “wish to be arrested for any offence below intimation to the District Mediate or the Excessive Court”.

The rapid arrest shall most efficient be a “technical or formal arrest”, after which it wish to be straight communicated to the District and Intervals Mediate of the district spirited and the Chief Justice of the Excessive Court.

The arrested judicial officer shall no longer be taken to a police draw without the prior orders of the District Mediate and no statements shall be recorded from him or her other than within the presence of a counsel. She or he is perchance no longer handcuffed.

Portion three of the Judges (Safety) Act of 1985 protects judges and dilapidated judges of the Supreme Court and the Excessive Courts from “any civil or legal proceedings” for any act, part or discover committed, performed or spoken by him all the draw by draw of their judicial responsibility or feature. No court docket shall entertain such complaints.

Portion seventy seven of the Indian Penal Code exempts judges from legal proceedings for one thing acknowledged or performed for the length of judicial duties.

Nonetheless, the authorities can initiate legal proceedings against a sitting or dilapidated decide of a kindly court docket below sub share (2) of Portion three of Judges (Safety) Act, 1985 if it might probably win enviornment subject proof to uncover that a judgment used to be handed after taking a bribe.

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