Report No. 42
2.11. Section 19.-
According to section 19, every person "who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment" is a judge. Both the expressions "legal proceeding" and "definitive judgment" have presented some difficulty in interpretation and require to be considered.
2.12. Meaning of "legal proceeding".-
In Madras case1, the question arose whether the President of a Union Board, while Accepting or rejecting nomination papers at elections to Taluk and Union Boards, was a judge within the meaning of section 19 of the Indian Penal Code, so that sanction under section 197, Criminal Procedure Code,2 was necessary for his prosecution for defamatory statements made in connection with those proceedings. It was contended that "legal proceeding" in section 19, Indian Penal Code, is the same as a "judicial proceeding" as defined in the Code of Criminal Procedure, and, therefore, sanction was not required. The High Court hel.-
"as 'judicial proceeding' is an expression used in other parts of the Indian Penal Code, we are not at liberty to say, unless absolutely driven to it, that 'legal proceeding' is exactly equivalent to 'judicial proceeding and that the legislature carelessly used two different expressions to convey exactly the same idea; nor is the definition of 'judicial proceeding' in the Criminal Procedure Code necessarily applicable to that expression when used in the Penal Code. If we confine ourselves to section 19, Indian Penal Code, 'legal proceeding' therein is obviously a proceeding in which a judgment may or must be given, a judgment being not an arbitrary decision but a decision arrived at judicially. In my opinion, 'legal proceeding' in section 19, Indian Penal Code, means a proceeding regulated or prescribed by law in which judicial decision may or must be given.3"
The Court accordingly decided that the president of a Union Board, when accepting or rejecting a nomination, is giving a definitive judicial decision in a legal proceeding, and is therefore a "Judge" within the meaning of section 19.
What constitutes a "legal proceeding" has been considered in other judicial decisions, though they do not relate to the Code. Thus, the meaning of this term appearing in section 171 of the Companies Act, 1913 (which barred "suits or other legal proceeding" against a company in liquidation without leave of the Court) was discussed before the Federal Court4, the question being whether it included proceedings for the recovery of tax. The Federal Court observe.-
"Clearly it is not a proceeding in an ordinary court of law. But we see no reason why in British India no 'legal proceeding' can be taken otherwise than in an ordinary court of law or why at proceeding taken elsewhere than in an ordinary court of law, provided that it be taken in a manner prescribed by law and in pursuance of law or legal enactment, cannot properly be described as a 'legal proceeding'. If it be considered that the effect of the income-tax authorities putting the machinery of section 46, Income-tax Act, in motion for the collection of arrears of income-tax is to bring into operation all the appropriate legal enactments relating to the collection of land revenue in the province concerned, it is, in our judgment, very difficult to say that they are not taking a 'legal proceeding'." In an Allahabad case5, the question what constitutes a "legal proceeding", within the meaning of section 24 of the Trade Mark Act, 19406, was considered. Under section 46(2) of the Act, any person aggrieved by an entry made in the register without sufficient cause could appeal to the High Court. The High Court state.-
"A proceeding cannot be held to be 'legal proceeding' simply because it is taken in a High Court, because there is no ban on a High Court being invested with jurisdiction over proceedings which are not 'legal proceedings'."
In the view of the High Court, proceedings for cancellation or alteration of the registration of a registered trade mark are of the same nature as proceedings for registration, which are departmental proceedings, and not "legal proceedings". On the other hand, proceedings for enforcement of the right conferred by the registration of the trade mark, or to prevent its infringement, or for punishment for the falsification of the register or for falsely representing the trade mark as registered, were held to be proceedings which are invariably to be taken in a court of law and are undoubtedly "legal proceedings", in that they are proceedings to enforce the law in one way or the other.
In a Bombay case7, the question arose whether the expression "legal proceedings" in section 48(2)(ii) of the Bombay Sales Tax Act, 1953 (which, while repealing the Bombay Sales Tax Ordinance, 1952, saved "legal proceedings" under the Ordinance), was confined to proceedings in a court or covered assessment proceedings also. It was held that "legal proceeding", in its normal connotation, can only mean a proceeding in accordance with law, and there can be no doubt that an assessment proceeding under the Sales Tax Act is such a proceeding.
According to these decisions, "legal proceeding" is one which is authorised or prescribed by law, or which is taken in pursuance of a law or a legal enactment. It is not synonymous with a "judicial proceeding", or with a proceeding in a Court. Though in this view the scope of the expression may seem to be very wide, when read with the additional requirement in section 19 regarding the power to give a "definitive judgment", it gets restricted and the expression comes very near a judicial proceeding or a proceeding in which a jural relation is determined.
1. Abboy Naidu v. Kanniappa, AIR 1929 Mad 175.
2. The definitions in the Indian Penal Code apply to the Code of Criminal Procedure also.
3. Sarvothama Rao v. Chairman, AIR 1923 Mad 475 was cited.
4. Governor-General-in-Council v. Shiromani Sugar Mills, AIR 1946 FC 16 (21): 1946 FCR 40.
5. Ram Rakhpal v. Amrit Dhara Pharmacy, AIR 1957 All 683 (701), para. 38.
6. The relevant portion read.-
"in all legal proceedings relating to a registered trade mark, the original registration of the trade mark shall, after the expiration of seven years etc., be taken to be valid unless such registration was obtained by fraud etc."
7. Abdul v. State of Bombay, AIR 1958 Bom 279.
2.13. Meaning of "definitive judgment'.-
In considering the true scope and content of the expression "definitive judgment,", judicial decisions on the interpretation of the word "judgment" will be helpful. The question whether the order of a Magistrate rejecting an objection to the initiation of a criminal proceeding against a public servant on the ground of want of sanction under section 197, Criminal Procedure Code, was a "judgment" for the purposes of section 205 of the Government of India Act, 1935, came up before the Federal Court2, and that Court observed.-
"In India, in the Code of Criminal Procedure, the word 'judgment' is used to indicate the termination of the case by an order of conviction or acquittal of the accused. The word is not defined in the Criminal Procedure Code, but that interpretation was put on the word in Emperor v. Maheshwara Kondayya, ILR 31 Mad 543, The view appears to have been approved by Sulaiman J. in Hari Ram Singh's case. AIR 1939 FC 43: 1939 FCR 159...In our opinion, the term 'judgment' itself indicates a judicial decision given on the merits of the dispute brought before the Court. In a criminal case, it cannot cover a preliminary or interlocutory order."
In a Bombay case1, the High Court opined that a "definitive judgment" meant a final judgment. The Supreme Court, while deciding2 that a Commissioner holding an inquiry under the Public Servants (Inquiries) Act, 1860, was not a "court" for the purposes of the Contempt of Courts Act, 1952, referred to in section 3 of the Evidence Act and sections 19 and 20 of the Indian Penal Code and observed.-
"The pronouncement of a definitive judgment is thus considered the essential sine qua non of a court, and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons, it cannot be predicated that he or they constitute a court."
Referring to the tests of finality and authoritativeness, the Supreme Court reiterated its view expressed in an earlier case3:
"It is clear from that, in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement."
It would thus appear that while deciding the question whether a body of judges is a court, the emphasis is upon the requirement of definitive judgment and this principle would apply also in construing the word 'judge'.
1. Emperor v. Shankar Sayaji, AIR 1938 Born 489.
2. Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66 (70), para. 14: (1955) 2 SCR 955.
2.14. Test of exercise of judicial power of the State.-
Recently, in connection with the interpretation of the expression "Court", another test has come into prominence, namely, whether the body about which the question has arisen is or is not entrusted with the "judicial power" of the State. Thus, in an appeal before the Supreme Court1, the question for consideration was whether the nominee of the Registrar of Cooperative Societies was a court within the meaning of section 195, Criminal Procedure Code. Holding this section to be inapplicable, the Supreme Court observed.-
"After carefully considering the powers conferred and the source of authority of the nominee, we have no doubt that the nominee exercising power to make an award under section 96 of the Maharashtra Co-operative Societies Act, 1960, derives his authority, not from the statute, but from investment by the Registrar in his individual discretion. The power so invested is liable to be suspended and may be withdrawn. He is therefore not entrusted with the judicial power of the State; he is merely an arbitrator authorised within the limits of the power conferred to adjudicate upon the dispute referred to him."
1. Ramarao v. Narayan, (1969) 1 SCJ 945 (953) (Reviews cases).
2.15. Suggestion for a different definition of "Judge" considered.-
The various judicial pronouncements summarised above show that the terms "judge" and "Court of Justice" as defined at present in the Indian Penal Code are somewhat elastic. We considered whether the amendment proposed by the Commission1 in section 195 of the Code of Criminal Procedure should be taken as a guide and section 19 of the Penal Code recast as follows.-
"The word 'Judge' denotes every person who is officially designated as a Judge or Magistrate, every presiding officer of a revenue Court, and every person acting under a Central, Provincial or State Act if declared by that Act to be a Judge for the purposes of this Code."
This would, no doubt, bring uniformity between the Penal Code and the Code of Criminal Procedure. But if the definition of "Judge" is thus narrowed down, the immunity conferred by section 77 of the Penal Code will not be available to some public servants who may now be regarded as giving "definitive judgments'. In our opinion, the protection under section 77 should continue to be wide as at present and no amendment that may be proposed in section 19 should affect that position. It is for this reason that we would prefer not to alter the tests laid down in section 19, though they might appear to be somewhat inprecise.
1. See 41st Report, paras. 15.99 and 15.100. Section 195(2) is proposed to be revised.-"(2) In clauses (a) and (b) of sub-section (1), the term "Court" means a civil, revenue. or criminal court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section."
2.16. Omission of first part of definition recommended.-
As a part of the definition, the reference to "every person who is officially designated as a "Judge" hardly serves any purpose and should be omitted. Any such person would certainly satisfy the test of having power to give definitive judgments in legal proceedings.
2.17. Illustrations to section 19.-
The four illustrations appended to section 19 appear to narrow down the scope of the section to some extent. Thus according to a Patna decision,1 a Magistrate is not a "Judge" when he has not seisin of a case, and this is emphasised by illustration (b). If the Patna view is correct, then it is certainly desirable to widen section 19, so as to expressly include Magistrates. There is no justification for making a distinction between Judges and Magistrates in this respect.
1. See Ramchandra v. K.E., 1925 ILR 5 Pat 110 (115): AIR 1926 Pat 214.
2.18. Committing Magistrates not "Judges" within section 19.-
Some difficulty is created by illustration (d) according to which "a Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge". A committing Magistrate, as such, is not eligible for the immunity conferred by section 77 of the Code, and it would be possible for any person, who suffers any injury as a result of what a Magistrate does in the course of commitment proceedings, to laundi a prosecution for such injury. Doubtless, in respect of some acts he may obtain immunity from other provisions of the Code. For example, a censure passed in good faith on the conduct of an accused or a witness by a committing Magistrate may fall under the seventh Exception to section 499, Indian Panel Code, and he may be immune from a charge of defamation. But he runs the risk of prosecution for other offences, if the ingredients of those offences are made out.
2.19. Position in civil law in India.-
It would appear that in Civil Law, committing Magistrates are as much entitled to immunity from suits for damages as trying Magistrates. The Judicial Officers' Protection Act1 provides that "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."
1. Section 1 of the Judicial Officer's Protection Act, 1850 (18 of 1850).
2.20. English law as to civil liability of Justices.-
According to the English law1 on the subject, immunity in civil cases would apply in regard to any proceeding before any court or tribunal recognised by law, the essential object being that Judges might exercise their functions free from any danger that they might be called to account for any words spoken in their official capacity. This has been ensured by the Administration of Justice Act, 1964,2 which makes elaborate provisions for the indemnification of justices of the peace. They are entitled to be indemnified out of local funds in respect of costs, damages etc., "if in respect of the matters giving rise to the civil proceedings or claim they acted reasonably and in good faith."
1. See Stephen History of Criminal Law, Vol. 1, pp. 225, 227.
2. See section 27(1).