Legal Provisions of Section 77 of Indian Penal Code, 1860.
Act of Judge when acting judicially:
The whole section can be divided into following two parts:
(i) Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which is given to him by law.
(ii) Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which in good faith he believes to be given to him by law.
Under the first part, a judge does not commit an offence when he does something in his judicial capacity while exercising a power which the law has given to him. Under the second part, it is not an offence for a judge to do something in his judicial capacity while exercising such power which in good faith he believes the law has given to him.
The first part of the section is applicable when a judge acting in his judicial capacity does something while exercising such a power which in fact has been given to him by law. The law empowers him to do something and he does that thing in his judicial capacity. In such circumstances he cannot be held liable for an offence.
There is no question of good faith under this part. On the other hand, under the second part the judge does not exercise a power which has in fact been given to him by law. He does something in his judicial capacity under such powers which he believes in good faith to be given to him by law.
The judge has to prove good faith under this part. It must be proved under this part that even though the judge in fact had no such power under law he in good faith believed that he had such power under which he acted in his judicial capacity. Only then is he protected under this part of the section. The proof of good faith may be a little difficult proposition.
The protection from criminal liability under this section is limited to a Judge only. But there is another Act by the name Judicial Officers’ Protection Act, 1850 which gives
protection from civil suits to a Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially. Section 1 of this Act states 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. A sitting or former judge is protected from civil and criminal liability under the Judges (Protection) Act, 1985 also.