Law and You > Criminal Laws > Indian Penal Code > Judicial Acts (Ss. 77 and 78 IPC)
In this article, we shall discuss protection given to judicial acts by judge when acting judicially in good faith.
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Chapter IV of the IPC, entitled ‘General Exceptions,’ which includes sections 76 to 106, exempts certain individuals from criminal liability. An accused’s act or omission, even if prima facie falls within the terms of a section defining an offense or prescribing punishment for it, is not an offense, if it is covered by any of the exceptions listed in chapter IV. In this article, we shall study provisions of Section 76 of the Code. Before proceeding further in this article, I’ll suggest you to read article on the Mistake of Law and Mistake of Fact. General Exceptions (Sec. 77 and 78) relates acts of Judges and Courts (Judicial Acts),
The principles enunciated in Chapter 4 are in fact rules of evidence carrying either conclusive or rebuttable presumptions. They deal with the circumstances which preclude the existence of ‘Mens rea’. They are the principles “Condition of non imputability” or “condition of exemptions from criminal liability”. If the existence of facts, or circumstances bringing the case within any of the exemptions is proved, negatives the existence of ‘Mens rea’ necessary to constitute the offence and thereby furnishes a ground for exemption from criminal liability.
A person can take the defense only when he acts in good faith and with good intention and believes that his act is justified by law. According to Black’s law dictionary, the word “justified” means “the act done on adequate reason sufficiently supported by credible evidence, when weighed by the unprejudiced mind, guided by common sense and by correct rule of law”.
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Section 77 IPC:
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.
Provisions contained in this section is analogous to the what has been addressed in the Judicial Officers Protection Act 1850.Under this section a Judicial officer is protected for acts bona fide done in exercise of judicial power. Thus, according to the section a Judge is exempted not only in those cases in which he proceeds irregularly in the exercise of a power which the law gives him, but also in cases where he exceeds his jurisdiction in good faith and has no lawful powers. For example: a judge who sentences a prisoner to death (even wrongly) is not responsible for his death by hanging. The act of judge is exempted under the code from criminal liability where the judge is not charged of the crime committed. As the acts show absence of mens rea i.e., guilty mind.
Case Laws:
In Albert v. Levin, (1981) 1 All ER 628 (D.C.) case, the Court held that under Section 77 a Judge is exempted not only in those cases in which he proceeds irregularly in the exercise of power which the law gives him, but also in cases where he, in good faith, exceeds his jurisdiction and has no lawful powers.
In Megh Raj vs Zakir Hussain, (1875) ILR 1 All 280 case, the High Court of Allahabad has held that no person acting judicially is liable for an act done or ordered to be done in the discharge of his official duty within the limits of his jurisdiction and in such a case the question of acting in good faith does not 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.
In A K Chaudhary v. State of Gujrat, 2006 CrLJ 726 (Guj) case, the Court held that the Judicial officers Protection Act provides protection of two broad categories of acts done or ordered by a judicial officer in his judicial capacity. In the first category falls the acts which are within the limits of his jurisdiction. The second category encompasses the acts which are not within the jurisdiction of the judicial officer, but are done or ordered by him, believing in good faith that he had jurisdiction to do or order them.
In Surendra Kumar Bhatia v. Kanhaiya Lal, AIR 2009 SC 1961 case, the Court held that a Collector who exercises powers of enquiry and award under the Land Acquisition Act, 1894 is not acting judicially because he is not a judge. He is not entitled to the protection of section 77.
In Megh Raj vs Zakir Hussain (1875) case, the High Court of Allahabad has held that ‘no person acting judicially is liable for an act done or ordered to be done in the discharge of his official duty within the limits of his jurisdiction and in such a case the question of acting in good faith does not 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.
In ES Sanjeeva Rao v. CBI, Mumbai, 2012 CrLJ 4053 (Bom) case, the ‘Regional Provident Fund Commissioner while passing order under section 7-A of 1952 Act is entitled to get protection as envisaged under section 77 of IPC, 1860 and section 3(1) of Judges (Protection) Act, 1985.
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Section 78 IPC:
Act Done Pursuant to the Judgment or Order of Court:
Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
For example: A, an officer of the court, arrested B, following the court’s order. Here, A has committed no offence.
This section is a result of section 77 of the IPC. This section provides protection to officers acting under the authority of a court’s decision or order of a Court of justice. The section states that if an act is committed at the time of the imposition of a decision or order of a court, it will not be considered an offence, even if the court does not have jurisdiction to pass such a decision. However, the act must be done believing in good faith that the court has such jurisdiction. Under this section, one can plead a mistake of law as a defence.
In Kapur Chand vs State (1976) In pursuance of an order of the Magistrate, the accused (husband) had withdrawn the property of his wife from her control without her consent. It was held that the husband had not committed any offence as he was protected under section 78 of the IPC
Difference Between Section 77 and Section 78:
Section 78 differs from section 77 on the question of Jurisdiction. In Section 78, the officer is protected in carrying out an order of a court which may have no jurisdiction at all, if he believed that the court had jurisdiction; whereas under section 77 the judge must be acting within his jurisdiction to be protected by it.
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Conclusion:
Provisions contained in this section is analogous to the what has been addressed in the Judicial Officers Protection Act 1850.Under this section a Judicial officer is protected for acts bona fide done in exercise of judicial power. Thus, according to the section a Judge is exempted not only in those cases in which he proceeds irregularly in the exercise of a power which the law gives him, but also in cases where he exceeds his jurisdiction in good faith and has no lawful powers.