498_final stage (Professional) 16 September 2013

Can you file a case against the judge if she is biased?

I recently heard from my lawyers that the lady judge in the court is very biased. She assume that husband is criminal and wife is saint. If that holds true and if the judge passes biased judgement including my conviction under 498a then how do I need to tackle it?? I have all the evidences which proves that I am being trapped.

Can you suggest/share any previous cases where judges were challenged by the defendants and dragged to the HC/SC???

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Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 16 September 2013

File a transfer petition u/s 408 of Cr.PC before DJ. Don't wait till the judgment of the case. you can file a complaint against the judge but without state govt. sanction, no court shall take cognizance of such offence as per section 197 of Cr.PC

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, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

Feel Free to Call if you want any assistance in Ghaziabad court from my side

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 16 September 2013

there are many cases in which the court held that protection available u/s 197 is available only when the alleged act done by public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing an objectionable act.(Rakesh kumar mishra v. State of Bihar) 2006 1 scc 557

SC: Accused public servants not protected by section 197 CrPC

The Supreme Court has ruled that a public servant cannot be given the protection of sanction under Section 197 CrPC if he is facing allegations of indulging in criminal offences.

A bench comprising Justices Arijit Pasayat (since retired), D K Jain and Mukundakam Sharma, while allowing the appeal of the state of Uttar Pradesh against the acquittal of an officer, Paras Nath Singh, by the trial court as well as by Allahabad High Court, noted in its 12-page judgment that forgery, criminal conspiracy, cheating and taking gratification cannot form part of official discharge of duty by a public servant.

Speaking for the Bench, Justice Pasayat noted in the judgment, ‘If on the facts therefore, it is prima facie found that the act or omission, for which the accused was charged, had reasonable connection with discharge of his duty, then the act must be held as official in which applicability of Section 197 of the Code cannot be disputed.’ ‘A public servant, however, is not entitled to indulge in criminal activities,’ he said.

He added, ‘That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B IPC sanctioned under Section 197 of the code is a condition precedent for launching the prosecution, is equally fallacious.’ The apex court also noted, ‘It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences.

Want of sanction under Section 197 of the code is therefore no bar.’ However, another bench of the SC headed by Justice Altamas Kabir has held the prosecution of some senior police officers of Maharashtra under the Maharashtra Control of Organised Crime Act (MCOCA), on the ground that the accused cannot be prosecuted without prior sanction from the police officer in the rank of Additional Director General of Police.

The eight accused police officers were part of a raiding party that allegedly caught one Himmat Nanda accepting a bribe of Rs three lakhs on behalf of Singh.

The special investigating team was set up by the special judge under JCP (Crime) Meera Borvankar.

After the SC verdict, no proceedings can be continued against the persons named by Singh under MCOCA despite their alleged involvement in organised crime.

The Bombay High Court had directed the special MCOCA judge to consider the complaint made by Mumbai ASI Nitindra Singh on August 19 2004 against 14 persons including eight senior police and government officials and members of the Anti-Corruption Bureau.

Allowing the appeal of Maharashtra government, the apex court bench headed by Justice Kabir ruled that both in case of a private complaint and a police report, sanction from ADGP was a must in view of the provisions of MCOCA which would have an overriding affect over the provisions of the CrPC.