This court dismissed a writ petition challenging compensation awarded for wrongful arrest based on a judicial order, holding that judicial officers acting within jurisdiction enjoy immunity from civil liability even for erroneous orders absent malice.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937
WA.No. 1524 of 2014 () IN WP(C).19651/2013
AGAINST THE ORDER/JUDGMENT IN WP(C) 19651/2013 of HIGH COURT OF KERALA DATED 03-09-2014
APPELLANT(S)/PETITIONER:
P. SUJANAPAL AGED 59 YEARS, S/O.LATE SEKHARAN, PALANGADATH HOUSE AREEKKADU NALLALAM P.O, KOZHIKODU
BY ADVS.SRI.A.X.VARGHESE SRI.A.V.JOJO
RESPONDENT(S)/RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY SECRETARIAT THE THIRUVANANTHAPURAM, PIN -695001
2. THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031
3. B. VIJAYAN, ADDITIONAL SESSIONS JUDGE ADHOC-III PATHANAMTHITTA 689 645
R2 BY ADV. SRI.ELVIN PETER P.J. R1 BY SPL.GOVERNMENT PLEADER SRI.SUJITH MATHEW R3 BY SR.ADV.SRI.JAJU BABU ADV.SR.M.U.VIJAYALAKSHMI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.1.2016, ALONG WITH WA. 1821/2014 AND WA. 140/2015, THE COURT ON 25-01-2016 DELIVERED THE FOLLOWING:
'C.R'
THOTTATHIL B.RADHAKRISHNAN &
ANU SIVARAMAN, JJ.
----------------------------------------------W.A.No.1524 of 2014, W.A.No.1821 of 2014
&
W.A.No.140 of 2015
----------------------------------------------Dated this the 25th January, 2016
JUDGMENT
Anu Sivaraman, J.
These appeals are against the judgment in a writ petition. In their listed sequence, they are respectively by the writ petitioner; the third respondent, a judicial officer; and, the first respondent State of Kerala. The parties are referred to hereinafter in terms of their status in the writ petition.
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of the High Court to take disciplinary proceedings against the third respondent and also seeking compensation of Rs.10 lakhs on the plea that the third respondent judicial officer had, through his acts, failed to exercise his due judicial powers and duty and this has resulted in infringement of valuable rights of the writ petitioner under Article 21 of the Constitution of India and hence, the eligibility for the compensation claimed.
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appearing for the appellant in W.A.No.1821 of 2014, Sri.Sujith Mathew, learned Government Pleader appearing for the State and Sri.Elvin Peter P.J, learned counsel appearing for the High Court of Kerala.
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appellant has been infringed due to an action of a judicial officer, even if such action is in exercise of his judicial function, this Court under Article 226 of the Constitution of India is empowered to direct the Government to award adequate compensation to the wronged individual and to direct recovery from the officer who is guilty of the wrongful act. He would place reliance on the decisions of this Court in Vypeen Vishamadhya Koottakola Virudha Samithy v. State of Kerala and others [2005 (1) KAJ 547] to contend that the power to order payment of compensation is available to this Court under Article 226 of the Constitution of India. The decision reported in Maksud Saiyed v. State of Gujarat and others [(2008)(2) SCC (Cri) 692] is relied on to contend that a Magistrate is expected to apply his mind to the facts and law involved before ordering police investigation under Section 156(3) Cr.P.C. It is further held that summoning of an accused in a criminal case is a serious matter where the need of application of mind is to be emphasised.
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contend that Judges exercise sovereign judicial power and that judiciary represents the state and its sovereign power. It is further contended that the High Court has the duty and the responsibility to maintain discipline in the subordinate judiciary. It is further submitted that the Apex Court in Priyanka Srivastava and another v. State of Uttar Pradesh and others [2015(2) KLJ 491] held that the power under S.156(3) Cr.P.C warrants application of judicial mind. The decision reported in High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil and another [(1997)6 SCC 339] is also relied on in support of the proportion that the conduct of every judicial officer should be beyond reproach and that High Courts have to maintain constant vigil to weed out corruption in judiciary. The learned counsel also relied on decisions of the Apex Court holding that where mal practices are alleged, officers exercising quasi-judicial functions are not immune from disciplinary proceedings.
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illegality in the Magistrate ordering investigation under Section 156(3) Cr.P.C. The bar provided in Section 195 Cr.P.C is only against the court taking cognizance of offences under Section 471 IPC otherwise than on a complaint of the court. The bar under Section 199 also operates only for taking cognizance of an offence under Section 500 IPC. It is further submitted that the case in hand cannot be treated as one of false imprisonment or malicious prosecution. A question of false imprisonment would arise only in cases where a person is committed to prison without the due process of law. In the instant case, there was a remand order issued by the Magistrate and the police was only acting in terms of the order. It is therefore contended that the order of awarding compensation was unwarranted in the facts of the case.
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contended that the embargo in Section 195 is only with regard to the court taking cognizance of the offence. In Mahesh Chand Sharma v. State of Uttar Pradesh and others [(2009) 15 SCC 519] the Hon'ble Supreme Court held that in spite of the bar under Section 195(1)(b)(ii) of the Cr.P.C, a private complaint in such a case was maintainable. Further, the decision in Rajendar Singh Pathania and others v. State (NCT of Delhi) and others [(2011) 13 SCC 329] was relied upon to contend that award of compensation under Article 226 of the Constitution of India for violation of fundamental rights can be made against the State or its servants only after a proper enquiry on the questions of fact alleged in the complaint. It is also stated therein that award of monetary compensation is permissible when that is the only practical mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers.
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in these proceedings and they have done so.
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same was held to be not illegal. The learned counsel also relies on the decision of the Hon'ble Supreme Court in P.C.Joshi v. State of U.P and others [(2001) 6 SCC 491] to contend that bona fide and erroneous exercise of judicial power would not amount to misconduct on the part of the Judicial Officer making him liable for disciplinary action. Relying on the decision reported in Ishwar Chand Jain v. High Court of Punjab and Haryana and another [(1988) 3 SCC 370] it is contended that judicial officers should not be proceeded against even in exercise of disciplinary jurisdiction unless wrong orders passed by them are found to be with corrupt motives. A Division Bench of the High Court of Andhra Pradesh in Khanapuram Gandaiah v. Administrative Officer, Ranga Reddy District
Courts and Others . [AIR 2009 AP 174] held that authorities discharging judicial functions are not covered under the Right to Information Act and that their actions while discharging such functions are protected under the Judicial Officers Protection Act.
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was used during the consideration of the said writ petition. It is also noted that in the remand report in respect of the petitioner's case, the Police officer had noted that the cause of action arose on 28.9.2010 in the High Court when a false document was produced. This Court, in Ext.P6, exercising powers under Section 482 Cr.P.C., after examining the materials produced, found that no such document was produced by the parties in Court. It was therefore found that the registering of the FIR based on such a complaint and the arrest and detention of the writ petitioner was unwarranted. It was also found that crime had been registered against the petitioner where one of the offences was under Section 500 IPC, oblivious of the fact that there is a clear bar under Section 199 of the CrPC. It was on these findings that the crime registered against the writ petitioner was quashed. The petitioner was also set at liberty to initiate legal proceedings if so advised.
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“The word “judge” denotes not only every person who is officially designated as a judge, but also every person,-
who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or
who is one of a body of persons, which body of persons is empowered by law to give such a judgment.”
17 . Section 20 defines the Court of Justice, which reads as
under:
“The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such judge or body of judges is acting judicially.”
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“152. LIABILITY OF THE OFFICERS OF SUPERIOR COURTS
A judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions. His exemption from civil liability is absolute, extending not merely to errors of law and fact, but to the malicious, corrupt, or oppressive exercise of his judicial powers. For it is better that occasional injustice should be done and remain unredressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of error, malice, or incompetence brought against them by disappointed litigants- “otherwise no man but a beggar, or a fool, would be a judge.” The remedy for judicial errors is some form of appeal to a higher court, and the remedy for judicial oppression or corruption is a criminal prosecution or the removal of the offending judge; but in neither case can he be called on to defend his judgment in an action for damages brought against him by an injured litigant. Nor is the Crown vicariously liable for his acts, as judicial error is not a tort. It is possible that there is liability under the European Convention on Human Rights.
Judges of inferior courts possess same immunity as Judges of superior courts so long as they do not exceed their jurisdiction.
The Act enacts the common law rule of immunity of Judges and is somewhat wider in that unlike the common law rule it makes no distinction between judges of Superior Courts, Judges of inferior Courts and Magistrates. Every person acting judicially,
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whether high or low, has the same protection. The principle behind the Act is the same that it is in public interest that a person holding a judicial office should be in a position to discharge his functions with independence and without fear of consequences. The act came up for construction before the Supreme Court in Anwar Hussain v. Ajay Kumar (AIR 1965 SC 1651) and the following propositions follow from that case: (1) If an act done or ordered to be done by a judicial officer in the discharge of his judicial duties is within the limits of his jurisdiction, he is protected whether or not he has discharged those duties erroneously, irregularly, or even illegally, or without believing in good faith that he had jurisdiction to do the act complained of; (2) If such an act is without the limits of the officers jurisdiction, he is protected if, at the time of doing or ordering it, he, in good faith, believed himself to have jurisdiction to order it; (3) The expression “jurisdiction” in S.1 of the Act does not mean the power to do or order the act impugned, but generally the authority of the judicial officer to act in the matter; (4) The Act protects a judicial officer only when he is acting in his judicial capacity and not in any other capacity; and (5) if a judicial officer arrests a person 'recklessly and maliciously' not in discharge of the duties of his office as a Magistrate but on the ground that he acted under the direction of his superior officer, he can be said to be acting in an executive capacity and not in a judicial capacity and therefore, he is not protected under the Act.
(ILR 2010(1) Ker. 897), rendered by one of us (Justice Thottathil B.Radhakrishnan) the fundamental nature, functions and role of courts of justice and the judiciary was examined in the light of authoritative commentaries and precedents and observed that courts of justice are entrusted with the sovereign function of dispensation of justice and the role of the judiciary in a democratic set up is of prime importance for the enforcement of the rule of law. In Infoseek Solutions Vs Kerala Law Times, (2006(4) KLT 311), while considering the question
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whether a publisher has copyright over reports of judgments of court, this court held that a judge is empowered by law to give a definite judgment in any legal proceedings, civil or criminal, and that judgments are decisions of the Court, which is an institution and not of an individual. It is further held in paragraph 13 of the judgment as follows:
“ 13. ..... When the judiciary acts as the duly authorised societal agent of the State, it acts as the representative of the sovereign, namely, the people. The power to adjudicate, determine, apply the laws and to give the verdict is essentially the power of the Republic, being exercised through the judicial limb of the State, and made available through the Courts which are the institutions where the republic carries out its activities that it has to, through the judicial limb of the State.”
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erroneous exercise of jurisdiction was corrected by this Court under Section 482 Cr.P.C by the quashing of the FIR registered against the writ petitioner. He was also compensated for the detention suffered by him.
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would also be protected from any judicial proceeding in a case like the present one.
the Hon'ble Supreme Court in paragraph 7 of the judgment held:
“7. .... that there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The enquiry officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best, he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly.”
single Judge by the writ petitioner and on which reliance was placed were cases of wrongful imprisonment, police excess or compensation for wrongful acts or criminal neglect on the part of the State and its officers. Orders of compensation have been issued to the State directing the recovery from officers or those responsible for the exercise in question. In the instant case, the distinction is that the action complained of was a wrong exercise of power by a judicial officer. As stated earlier, no malice or bias of any kind was alleged against the judicial officer. What was alleged was a lack of proper application of mind. In the facts and circumstances of the instant case, we are of the opinion that no compensation would be payable to the
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petitioner on the allegation that he was forced to undergo imprisonment on the basis of a wrong judicial order. The order of the learned single Judge directing payment of Rs.25,000/- as compensation to the petitioner on account of his wrongful imprisonment is hereby vacated. The compensation due to the petitioner will be limited to Rs.50,000/- as ordered by the Human Rights Commission. W.A.No.1524 of 2014 is dismissed. W.A.No.1821 of 2014 and W.A.No.140 of 2015 are allowed. The judgment of the learned single Judge is vacated and the writ petition is dismissed. No costs.
THOTTATHIL B.RADHAKRISHNAN JUDGE
ANU SIVARAMAN
JUDGE
vgs
3 issues framed by the court
Whether a judicial officer is liable to pay compensation to a citizen for an erroneous exercise of judicial power in the absence of mala fides.
Whether the learned Single Judge erred in directing recovery of quantum of compensation from the judicial officer concerned.
Whether the writ petitioner is barred by the Limitation Act from claiming compensation.
Colour shows how this judgement treated each authority
Vypeen Vishamadhya Koottakola Virudha Samithy v. State of KeralaReferred¶47
Vypeen Vishamadhya Koottakola Virudha Samithy v. State of Kerala and others [2005 (1) KAJ 547]
Maksud Saiyed v. State of GujaratReferred¶47
Maksud Saiyed v. State of Gujarat and others [(2008)(2) SCC (Cri) 692] · Who else cites this
State of Maharashtra v. Public Concern for Governance TrustReferred¶48
State of Maharashtra v. Public Concern for Governance Trust and others [(2007)3 SCC 587] · Who else cites this
High Court of Judicature at Bombay v. Shashikant S.PatilReferred¶48
High Court of Judicature at Bombay v. Shashikant S.Patil and another [(2000) 1 SCC 416] · Who else cites this
Priyanka Srivastava and another v. State of Uttar PradeshReferred¶48
Priyanka Srivastava and another v. State of Uttar Pradesh and others [2015(2) KLJ 491]
High Court of Judicature at Bombay v. Shirishkumar Rangrao PatilReferred¶48
High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil and another [(1997)6 SCC 339] · Who else cites this
State of Orissa v. Sharat Chandra SahuReferred¶56
State of Orissa v. Sharat Chandra Sahu and another [1996(6) SCC 435] · Who else cites this
State of Punjab v. Raj SinghReferred¶56
State of Punjab v. Raj Singh and another [(1998) 2 SCC 391] · Who else cites this
Mahesh Chand Sharma v. State of Uttar PradeshReferred¶56
Mahesh Chand Sharma v. State of Uttar Pradesh and others [(2009) 15 SCC 519] · Who else cites this
Rajendar Singh Pathania and others v. StateReferred¶56
Rajendar Singh Pathania and others v. State (NCT of Delhi) and others [(2011) 13 SCC 329] · Who else cites this
Madhu Bala v. Suresh KumarExplained¶65
Madhu Bala v. Suresh Kumar and others [(1997) 8 SCC 476] · Who else cites this
P.C. Joshi v. State of U.P.Applied¶66
P.C.Joshi v. State of U.P and others [(2001) 6 SCC 491] · Who else cites this
Ishwar Chand Jain v. High Court of Punjab and HaryanaExplained¶68
Ishwar Chand Jain v. High Court of Punjab and Haryana and another [(1988) 3 SCC 370] · Who else cites this
Khanapuram Gandaiah v. Administrative Officer, Ranga Reddy DistrictReferred¶69
Khanapuram Gandaiah v. Administrative Officer, Ranga Reddy District Courts and Others. [AIR 2009 AP 174] · Who else cites this
Abdulla K.M. Vs SecretaryExplained¶96
Abdulla K.M. Vs Secretary & ors (ILR 2010(1) Ker. 897) · Who else cites this
Infoseek Solutions Vs Kerala Law TimesExplained¶97
Infoseek Solutions Vs Kerala Law Times, (2006(4) KLT 311)
Anwar Hussain v. Ajay KumarExplained¶93
Anwar Hussain v. Ajay Kumar (AIR 1965 SC 1651) · Who else cites this
P. Sujanapal
State of Kerala
Registrar General, High Court of Kerala
B. Vijayan
B. Radhakrishnan
Anu Sivaraman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
