New
Delhi: Many times the clients says that the judicial officer knowingly passed wrong order
which is against the law to harass litigant
or save well wishers. The Judge may be bias with the client or
advocate and issue process to abuse the process of law. He also know that in
long term he will be acquitted . To punish such judicial officers who are
passing judgment with ill will and in prejudice attitude and their order seems
primefacie wrong then they also can be prosecuted
under IPC 219. It Should not be used against honest Judges . Many judges are honest
and they dont pass any order contrary to the law. Few exceptional judges are
thinking that they are above the law passing order against supreme court rulings. The advocates will not use this section,
so clients must prosecute as party in person. The advocates have interest of
other clients so they will not fight against judges community. Donot not use
indecent remark in pleading , applicant should proceed as per apex court
citations and remarks, else it will be contempt of court. Applicant must have
faith in judiciary to get justice . In India the judiciary is last hope for justice and Court is custodian of our fundamental rights. Supreme court judges don't allow injustice against constitution.
Supreme
Court of India
All India Judges'
Association And ... vs Union Of India And Others on 24 August, 1993
Equivalent citations:
AIR 1993 SC 2493, (1993) 2 CALLT 1 SC, JT 1993 (4) SC 618, 1993 (2) KLT 581 SC,
1993 LablC 2321, (1993) IILLJ 776 SC, 1993 (1) SCALE 26, (1993) 4 SCC 288, 1993
Supp 1 SCR 749
….The function
of the higher judiciary is limited to examining whether the means adopted
by the State legislature/government are constitutionally valid: Synthetics
& Chemicals Ltd. etc. v. State of U.P. and Ors. ……
…..The judicial service is not service in
the sense of 'employment'. The judges are not: employees. As members of the
judiciary, they exercise the sovereign judicial power of the State. They are
holders of public offices in the same way as the members of the council of
ministers and the members of the legislature. When it is said that in a
democracy such as ours, the executive, the legislature and the judiciary
constitute the three pillars of the State, what is intended to be conveyed is
that the three essential functions of the Stale are entrusted to the three
organs of the State and each one of them in turn represents the authority of
the State……
….Each case coming before the judge has its
own peculiarities requiring application of fresh mind and skill. The judge has
constantly to be a creative artist. His work, therefore, requires constant
thinking and display of talent. The exertions involved in the duties of the
judge cannot be compared with the duties of other services….
Supreme Court of India
K. Veeraswami vs Union Of India And Others on 25 July, 1991
Equivalent citations: 1991 SCR (3) 189, 1991 SCC (3) 655
........The decisions of this Court have unequivocally held that a Judge or Chief Justice of a High Court is a constitutional functionary, even though he holds a public office and in that sense, may be included in the wide definition of 'public servant'......https://indiankanoon.org/doc/1269046/IPC | Chapter XI | ||||||||||||||||
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Public servant in judicial proceeding corruptly making report, etc., contrary to law | |||||||||||||||||
Description | |||||||||||||||||
Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
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CITATIONS UNDER Miscarriage of
Justice & IPC 219
The expression "miscarriage of justice‟ is of wide amplitude. It has been defined as an error of justice meaning “errors in the interpretation, procedure, or execution of the law – typically, errors that violate due process, often resulting in the conviction of innocent people.”2 Wharton‟s Law Lexicon (9th Edition) defines "Miscarriage of Justice‟ as the failure of justice.Brian Frost, Errors of Justice, Nature, Sources and Remedies (Cambridge:Cambridge University Press, 2004) 3.
The Privy Council in Bibhabati Devi v. Ramendra Narayan
Roy AIR 1947 PC 19, defined the contours of the term "miscarriage of justice‟ as a departure from the rules that permeates all judicial procedure so
as to make the resulting proceedings not in the proper sense of the
word „judicial procedure‟ at all. The Court highlighted two
scenarios: one, where violation of law or procedure must be of such
erroneous proposition of law that if that proposition were to be
corrected, the finding could not stand; and the other, where the
neglect is of such principle of law or procedure, whose application
will have the same effect. Srinivas Ram Kumar v. Mahabir Prasad & Ors., AIR 1951 SC 177; and Union of India v. Ibrahim Uddin & Anr., (2012) 8 SCC 148.
Over the years, the expression "miscarriage of justice‟ has been looked into in a plethora of judicial pronouncements, including within its purview a multitude of violations and desecrations. Miscarriage of justice is what arises from misconception of law, irregularity of procedure, neglect of proper
precaution leading to apparent harshness of treatment or some underserved hardship to individuals Janata Dal v. H. S. Chowdhary & Ors. AIR 1993 SC 892; see also: T. N. Dhakkalv. James Basnett & Anr. (2001) 10 SCC 419.
In Ayodhya Dube & Ors. v. Ram Sumar Singh AIR 1981 SC 1415., the Supreme
Court held that lack of judicial approach, non-application of mind,
non-consideration or improper consideration of material evidence
inconsistencies with faulty reasoning such that amounts to
perversity amounts to grave miscarriage of justice.
A glaring defect in the procedure or a manifest error on a point of law is consequently a flagrant miscarriage of justice K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788.
If a judgment is unreasonable, based on an erroneous understanding
of the law and of the facts of the case, it occasions miscarriage of
justice. If a court‟s approach in dealing with the evidence is found
to be patently illegal, with findings recorded to be perverse, and the
conclusions arrived thereto contrary to the evidence on record, it
leads to miscarriage of justice.State Of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368; see also: Abrar v.State of Uttar Pradesh, AIR 2011 SC 354; Rukia Begum v. State of Karnataka, AIR 2011 SC 1585; and State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059.
Section 219, IPC deals with corrupt or malicious exercise of
power by public servants engaged in the discharge of judicial
function; criminalising corrupt or malicious making or
pronouncing of any report, order, verdict etc. by a public servant in
a judicial proceeding knowing it to be contrary to law. An offence
under this section is punishable with a maximum imprisonment of
7 years of either description, or fine, or with both.
4.41 This section is invoked only with respect to judicial
proceedings. Further, there must the judicial proceeding actually
commenced or pending, wherein a party claims relief against
another and seeks the decision of the court in regard thereto, and
there must be the making of real report or a real pronouncement of
an order, verdict or decision.Narapareddi Seshareddi (in re:), (1938) 39 Cr LJ 875. Where a report was submitted by
the police before any order under sections 112 or 145, CrPC was
made, it was held that the report did not fall within the scope of
section 219, IPC even if the same was corruptly or maliciously
furnished.Kodali Puranchandra Rao v. Public Prosecutor, A.P., AIR 1975 SC 1925; see also: Ram Narain, 1980 Cri LJn (NOC) 55 All.
While section 219, IPC is specific in application, extending
only to judicial officers, its following section 220 is more general
and applies to any person in an office which gives him the legal
authority to commit persons for trial or to confinement, such as a
magistrate or a police officer. The section criminalises corrupt or
malicious commitment for trial or confinement of any person by
such an officer magistrate or a police officer. The section criminalises corrupt or
malicious commitment for trial or confinement of any person by
such an officer knowing that in so doing he is acting contrary to
law. An offence under this section is punishable by a maximum
imprisonment of 7 years of either description, or fine, or with both.
Knowledge that confinement is contrary to law‟ is a question of fact
and not of law, and it must be proved in order to satisfy the
requirement of section 220, IPC.Narayan Babaji, (1872) 9 BHC 346.
This section addresses executive abuses in intentionally
illegally confining innocent persons. It is aimed at preventing
abuse of power by officers with the power to commit persons to
trial or confinement. One such instance, also relevant to the issue
under discussion, would be the power of police under section 41,
CrPC to arrest a person without warrant in certain cases, subject
to the requirement under Article 22(2) of the Constitution i.e. to
produce the person arrested before the magistrate within 24 hours.
A failure on the part of the police to comply with the foregoing
requirement without a reasonable cause would come under the
purview of this section, making the concerned officer liable for
punishment there under.
However, for the purposes of this section 220, IPC, unlawful commitment to confinement will not of itself warrant the legal inference of malice; it needs to be alleged and proved that the concerned officer corruptly and maliciously confined a person wrongfully.Sita Ram Chandu Lall v. Malikar Singh, AIR 1956 Pep 30; Narayan Babaji (1872) 9 BHC 346; Smt. Priya Dubey v. The State of Jharkhand, High Court of Jharkhand Order dated 13 November 2013 in Cr. M.P. No. 1146 of 2010.
Confining a person on suspicion but with the knowledge that
it is contrary to law invokes section 220, IPC.T.K. Appu Nair v. Earnest & Ors., AIR 1967 Mad 262.
If the confinement of a person is itself contrary to law, regardless of the legal
authority of the officer to confine, it would be an offence under
section 220, IPC Afzalur Rahman & Ors. v. Emperor, AIR 1943 FC 18.
Excess of his legal powers of arrest by a police officer invokes the requirements of acting corruptly or maliciously or the knowledge that he was acting contrary to law under section 220, IPC. However, where the arrest is legal, there can be no guilty
knowledge “superadded to an illegal act”, such as it is necessary to
establish against the accused to justify a conviction under section
220, IPC.Vide: Amarsingh Jetha, (1885) 10 Bom 506. See also: Beharry Singh, (1867) 7 WR (Cr) 3.
Interpreting the expression „maliciously‟ as it appears in section 220, IPC, the Court observed that unlawful confinement to put pressure on the person confined to come to terms with a person in whom the accused is interested amounts to „malice‟.Sita Ram Chandu Lall v. Malkiat Singh, AIR 1956 Pep 30.
The expression „corruptly and maliciously‟ was also interpreted to
include wrongful confinement for the purpose of extortion.Vide: Mansharam Gianchand and Anr. v. Emperor, AIR 1941 Sind 36. In this case a Sub-inspector who wrongfully confined certain persons on charges of gambling to extort money on threat of prosecution that he knew to be false, was held guilty under
section 220, IPC
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Commitment for trial or confinement by person having authority who knows that he is acting contrary to law | |||||||||||||||||
Description | |||||||||||||||||
Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Jurisdiction Case No.3659 of 2019
In
CRIMINAL MISCELLANEOUS No.4117 of 2018
“…It must be remembered that it is the duty of every member of the legal fraternity to ensure that the image of the judiciary is not tarnished and its respectability eroded. The manner in which proceedings were taken by the learned Judge in relation to the writ petition disposed of by a Division Bench exposes a total lack of respect for judicial discipline. Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions. The virtue of humility in the Judges and a constant awareness that investment of power in them is meant for use in public interest and to uphold the majesty of rule of law, would to a large extent ensure self-restraint in discharge of all judicial functions and preserve the independence of judiciary. It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we "suffer form self inflicted mortal wounds". We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels…” https://indiankanoon.org/doc/179627686/
The law covering Patna High Court MJC No.3659 of 2019 dt.02-09-2019 the field has been
dealt with very recently in the case of Kamini Jaiswal Vs. Union of India,
reported in (2018) 1 SCC 156, but the case closer to the present controversy,
for the purpose of understanding the fundamental principles of the authority to
exercise jurisdiction by a Judge of the High Court, was more succinctly dealt
with in the case of State of Rajasthan Vs. Prakash Chand and others, reported
in (1998) 1 SCC 1, 57.
Whereas we concede that a Judge has the inherent power to act freely upon his
own conviction on any matter coming before him, but it is a principle of the
highest importance to the proper administration of justice that the Judge must
exercise his powers within the bounds of law and should not use intemperate
language or pass derogatory remarks against other judicial functionaries,
unless it is absolutely essential for the decision of the case and is backed by
factual accuracy and legal provisions.
58. It is educative to quote the views of Benjiman cardazo, the
great Jurist in the behalf:
"The judge, even
when he is free, is still not wholly free. He is not to innovate at pleasure.
He is not a knight-errant roaming at will in pursuit of his own ideal of beauty
or of goodness. He is to draw his inspiration from consecrated principles. He
is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
He is to exercise discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to 'the primordial necessity
of order in the social life.' Patna High Court MJC No.3659 of 2019
dt.02-09-2019 It must be remembered that it is the duty of every member of
the legal fraternity to ensure that the image of the judiciary is not tarnished
and its respectability eroded. The manner in which proceedings were taken by the learned
Judge in relation to the writ petition disposed of by a Division Bench exposes
a total lack of respect for judicial discipline. Judicial authoritarianism is
what the proceedings in the instant case smack of. It cannot be permitted under
any guise. Judges must be circumspect and self-disciplined in the discharge of
their judicial functions. The virtue of humility in the Judges and a constant
awareness that investment of power in them is meant for use in public interest
and to uphold the majesty of rule of law, would to a large extent ensure
self-restraint in discharge of all judicial functions and preserve the
independence of judiciary. It needs no emphasis to say that all actions of a
Judge must be judicious in character. Erosion of credibility of the judiciary,
in the public mind, for whatever reasons, is the greatest threat to the
independence of the judiciary. Eternal vigilance by the Judges to guard
against any such latent internal danger is, therefore, necessary, lest we
"suffer form self inflicted mortal wounds". We must remember that the
Constitution does not give unlimited powers to anyone including the Judge of
all levels. The societal perception of Judges as being Patna High
Court MJC No.3659 of 2019 dt.02-09-2019 detached and impartial referees is the greatest strength of
the judiciary and every member of the judiciary must ensure that this
perception does not receive a setback consciously or unconsciously.
Authenticity of the judicial process rests on public confidence and public
confidence rests on legitimacy of judicial process. Sources of legitimacy are
in the impersonal application by the Judge of recognised objective principles
which owe their existence to a system as distinguished from subjective moods,
predilections, emotions and prejudices. It is most unfortunate that the order
under appeal founders on this touchstone and is wholly unsustainable.
59. From the preceding discussion the following broad CONCLUSIONS
emerge. This, of course, is not to be treated as a summary of our judgment and
the conclusion should be read with the text of the judgment:
(1) That the administrative control of the High Court vests in the Chief
Justice alone. On the judicial side, however, he is only the first amongst the
equals.
(2) That the Chief
Justice is the master of the roster. He alone has the prerogative to constitute
benches of the court and allocate cases to the benches so constituted.
–--–---------------------–--–-----------–------
Seven Judge Constitution Bench of the Supreme Court has, in In The Matter Of: Under Article 143 ... v. Unknown, AIR 1965 SC 745, held that “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.” It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar's wife must be above suspicion, said Justice Krishna Iyer in Baradakanta Mishra V. Registrar of Orissa High Court, (1974) 1 SCC 374: (AIR 1974 SC 710). His Lordship further said “A rogue robe cannot hide behind the facade of contemptology. … We must turn the searchlight inward.” David Pannick, a renowned barrister, said “The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.'' I am sure you will be convinced as I am that Judges who indulge in corruption enjoy no immunity and are as much liable to be subjected to investigation and prosecution as any other ordinary citizen. I must say sadly that an impression to the contrary largely exists. Judges, who are, to quote Justice Krishna Iyer, “a rogue robe” and the bar which no longer have Nani Palkhiwala and H.M. Seervai, are responsible for the decay.
–--–---------------------–--–-----------–------
Seven Judge Constitution Bench of the Supreme Court has, in In The Matter Of: Under Article 143 ... v. Unknown, AIR 1965 SC 745, held that “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.” It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar's wife must be above suspicion, said Justice Krishna Iyer in Baradakanta Mishra V. Registrar of Orissa High Court, (1974) 1 SCC 374: (AIR 1974 SC 710). His Lordship further said “A rogue robe cannot hide behind the facade of contemptology. … We must turn the searchlight inward.” David Pannick, a renowned barrister, said “The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.'' I am sure you will be convinced as I am that Judges who indulge in corruption enjoy no immunity and are as much liable to be subjected to investigation and prosecution as any other ordinary citizen. I must say sadly that an impression to the contrary largely exists. Judges, who are, to quote Justice Krishna Iyer, “a rogue robe” and the bar which no longer have Nani Palkhiwala and H.M. Seervai, are responsible for the decay.
Supreme
Court of India
Indira Nehru Gandhi vs
Shri Raj Narain & Anr on 7 November, 1975 https://indiankanoon.org/doc/936707/ AIR 1975 SC 2299
541. Judges must, no doubt, be impartial and independent. They cannot, in a period of intensified socio-economic conflicts, either become tools of any vested interests, or function, from the bench, as zealous reformers propagating particular causes. Nevertheless, they cannot be expected to have not notions whatsoever of their own, or to have completely blank minds on important questions indicated above which, though related to law, really fall outside the realm of law. They cannot dwell in ivory towers or confine their processes of thinking in some hermetically sealed chambers of purely legal logic artificially cut off from the needs of life around to which law must respond. Their deferring individual philosophies, outlooks, and attitudes of vital questions, resulting from differences in life, will often determine their honest choices between two or more reasonably possible interpretations of such words as "amendment" or "constituent power" in the Constitution. But, on certain clear matters of principle, und
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