Whether prosecution for defamation can be initiated against Judge for comments made by him in Judgment?
case of Malay Kumar Ganguly (supra) established that the comments which
were made against him in the judgment delivered on 19 March 2004 were
defamatory and under such circumstances cognizance should have been taken
and process ought to have been issued. In the event the respondent no. 1 wanted
to invoke protection granted under the said statute, it could be tested whether
such comments are made in discharge of his judicial duty or function or not at
that stage.
43. In my opinion, comments forming part of a judgment per se would
constitute “words spoken” or “act committed” in discharge of judicial duty. There
is no allegation in the subject complaint that such comments were prompted or
motivated by any external factor, as was in the case of Ravi Shankar
Srivastava (supra). Sub-section (1) of Section 3 of the 1985 would thus prohibit any Court from entertaining any criminal or civil action for use of any expression
used in a judgment. So far as the provision of sub-section (2) of Section 3 of the
1985 Act are concerned, the power to institute civil criminal or departmental
proceeding has been preserved for the Central Government, State Government,
the Supreme Court of India, any High Court or any other authority. The
provisions of Sub-section (2) of Section 3 of the Act, constitute exception to the
provisions of subsection (1) of Section 3. The embargo under Sub-section (1) of
Section 3 of the 1985 Act is on a Court in entertaining any proceeding against a
Judge made in discharge of his official or judicial duty. But Sub-section (2)
thereof permits specified constitutional or statutory authorities to bring such
action, if permitted under the law. In such a proceeding, whether the acts
complained against had reasonable nexus with discharge of judicial or official
duty or function or not could be examined. But a private person is not authorised
under the said provision to initiate action against a Judge by instituting civil or
criminal proceeding in relation to any action taken in discharge of judicial duty.
As I have already observed, comments made in a judgment would ex facie
constitute acts done or words spoken in discharge of judicial duty. The judgment
of the respondent no. 1 itself has been sustained by the Hon’ble Supreme Court.
In the event the construction contemplated by Dr. Saha on the aforesaid
provision is accepted, such construction would render the provisions of Subsection
(1) of Section 3 of the 1985 Act otiose as the protection given therein in
such a situation would only be illusory. In view of the provisions of Sub-section
(1) of Section 3 of the Act, in respect of a complaint instituted by a private individual under Section 500 of the I.P.C. containing allegation that comments
made in a judgment constitutes offence under the aforesaid provision, a learned
magistrate would have no jurisdiction to entertain the same.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON’BLE JUSTICE ANIRUDDHA BOSE
C.R.R. No. 2755 OF 2011
KUNAL SAHA (Dr.)
Vs.
MR. GORA CHAND DEY JUSTICE (RETIRED) & ANR.
Citation;2016 CRLJ(NOC)126 Cal
Judgment On: 21.09.2012
ANIRUDDHA BOSE, J.:-
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