• Defense for presiding officer

An affected party got annoyed with an order of presiding-officer(PO).He nursed animosity towards PO ,.He didn't file any appeal against PO's order.Instead party started complaining and harassing him.Party sought sanction from government in vain.It even filed criminal complaints in the matter after 10 year for giving unfavourable ordert.This he did finding some clerical mistake.Learned Magistrate and session-court rejected his complaint.Now he has moved high-court under  garb of section 482 against session-order.High-court has issued a notice.PO has to file a reply.What defense presiding officer can take beside judge protection act?
Asked 2 years ago in Criminal Law from Bhopal, Madhya Pradesh
Without knowing the contents of complaint it would be difficult to draft the contents of a reply to the complaint. However the points to be considered are that a judgment of an officer presiding a  court can be questioned in an appeal before a superior court and can not be resolved through complaint. However if a bias or malafide intention on the part of PO can be attributed a complaint can  be made to the superintending court who can make inquiries and initiate disciplinary proceedings and take action as per service rules. I have not heard of any complaint being heard in open court. Therefore more details are required to assist you in drafting a proper reply.
H. S. Thukral
Advocate, New Delhi
516 Answers
125 Consultations
5.0 on 5.0
It is almost impossible to suggest about defense to be taken unless all documents including various complaints,orders,and petition U/S 482 etc. and the facts are not seen and examined thoroughly. The judicial order/judgment can not be challenged or questioned  by way of a complaint as for the same proper judicial process is provided under law may be by appeal /revision etc.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
Hi,
you have acted in Good faith as  a  P O. And  with the petition , definitely no case in it.
 The Judicial Officers’ Protection Act, 1850 contains only one section and is aimed at providing protection to the judicial officers acting in good faith in their judicial capacity. Sec. 1 of the 1850 Act,
as per  “Sec. 1--- Non liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders—No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction : Provided that he at the time in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.

       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., u/s. 77 IPC
 Acting in good faith has to be considered by referring to IPC  “Sec. 52 ‘Good faith’—Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.”. I feel there is lot of scope under IPC  if you read with the sec. 1 of the The Judicial Officers’ Protection Act, 1850

        The Judges (Protection) Act, 1985 give enough immunity  and protection when a PO act officially. 
The petition under 482 has to be dealt with the actual facts as the reason or cause of  the petition is an unsatisfactory order under prescribed law.  The trial courts have rejected the petition and it itself is an advantage  for the PO . There should be reply filed to bring the actual facts to the notice of the Honorable high court. 

The Po should also mention  and take a defense in his reply the continuous harassment  by the complaint since the unfavorable order by the PO. 
The learned magistrate did not find any material to take the cognizance of any offence and dismissed the complaint same as the sessions judge . This will be a good defense as no merit in the complaint and it is to harass and trouble the Respondent as well as the legal system.The petition is most  likely  to be dismissed as there is no merit in it.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
He can't give complaint after 10 years as it will bared by limitation otherwise he will have prove the reason for the delay caused with proofs.this is a good defence to the presiding officer
If he was aggrieved by the order he could have given an appeal and see. Without preferring appeal or review he stood only for complaining.that is his fault.
Presiding officer will get protection under judges protection act.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
judgment of an officer presiding a  court can be questioned in an appeal before a superior court
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
Dear Querist
read the below mention section
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.
(3A) 1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
NAGPUR: Coming to the rescue of an Akola resident, the Nagpur bench of Bombay high court has ruled that a person can't be prosecuted for an act done in good faith while discharging quasi judicial function. "Such a course, if permitted, would shake the confidence of authorities exercising judicial and quasi judicial functions, and expose them to unwarranted criminal actions," a division bench comprising Justices Avinash Lavande and Arun Chaudhari held."If criminal action is permitted against those exercising judicial or quasi judicial function, they would be exposed to vexatious criminal proceedings at the instance of disgruntled persons, who are aggrieved by the actions taken against them by such authorities. Such a course can never be permitted," the judges ruled while allowing a criminal application of district deputy registrar of cooperative societies Yogiraj Surve.He had challenged the FIR lodged by Nagpur businessman Pravin Thute at Ambazari police station and also proceedings in subsequent criminal case. Thute had taken a loan of Rs50,000 for business purpose from Nagpur Friends Urban Sahakari Sanstha Maryadit in 2003, but failed to refund it. Surve was posted at Nagpur at the relevant time and had initiated proceedings against Thute under the Maharashtra Cooperative Societies Act 1960 and issued recovery certificate on May 28, 2009. http://timesofindia.indiatimes.com/city/nagpur/Official-cant-be-prosecuted-for-exercise-of-powers-in-good-faith-HC/articleshow/18944436.cms
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
lawfully order of should have been challenge in superior court, filing complain is of no use & po is nicely protacted  under law if acted in good faith
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
If these are the facts of the case then it is strange and quite shameful that HC has issued notice to the PO. The aggrieved person had the right to file an appeal against the order of PO, which he did not exercise. PO cannot be punished for any clerical mistake.To call a judge or magistrate, in the absence of mala fide writ large on the record, to give an explanation as to why he passed a particular order, vitiates the concept of judicial independence which is the bedrock of our democratic structure. The party instead of challenging the unfavourable order of the PO chose to file a complaint against him. This itself shows that the complainant is a chronic litigant hell bent on harassing the PO. If a judge is being persecuted in this manner by the litigant aggrieved by his judicial finding then very soon we will have judges who will turn the pages of the case files in front of them with trembling fingers. The PO should contest the case fittingly in the HC.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
what was the Criminal complaint ,  under what section  against the PO ,he approached the magistrate. you have not mentioned about the nature of the complaint  he lodged against the PO? Under 482 Crpc  what he has prayed for in the High court?
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
its depend on the complaint filed by complainant against PO. without know the allegation it can not be possible to give best advise on that
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
Hello,
It is quite important to know what was the nature of the criminal complaint and under which sections it was filed to suggest possible defence besides recource to Judge Protection Act.

While replying to the notice from High Court please mention about the dismissal of the complaint by the Magistrate and the Judge at the Sessions.

Also call for records of the verdict the PO passed 10 years ago which would be clinching evidence and defence in support of the PO and the circumstances where such order was passed.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
He has not done anything as the complainant is not the real land owner it is given to the original land owner.so he is innocent this complaint won't affect him a way.the complaint stands dismissed by the magistrate and the judge.mention all these
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Without actually reading the petition of which you received notice from High Court, it is difficulty to answer.
Nahush Khubalkar
Advocate, Nagpur
44 Answers
4 Consultations
5.0 on 5.0
1. Criminal complaint asint the P.O. for his prder passed earlier will not lie,

2. His impugned orded can be challenged in higher courts and set aside,

3. However, the complaint is required to be seen for giving further advice.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0

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