Act of Judge when Acting Judicially - Section 77

Act of Judge when Acting Judicially - Section 77

India is a developing country, our “Make In India” movement has been influential on other countries as well. Growing business, more jobs improve the GDP of the nation, thus, making the present government feel more victorious. The government has prescribed various acts for the regulation of business such as The Constitution Of India 1949, The Indian Contract Act 1930, The Companies Act 2013, etc. 

In the Constitution of India part five article 77 expressly states guidelines that have to be followed for conducting business by the  Central Government. 

What is article 77?

Conduct of business of the Government of India

  1. All executive action of the Government of India shall be expressed to be taken in the name of the President.

  2. Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.

  3. The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.

This Article observes that if any type of executive action has to take place by the Government, it has to be expressly taken in the name of the President. Only such documents will be considered authentic which have been executed and instrumented on the name of the President, these documents can not be questioned. Only The President can and shall make rules for the transaction of the business of the Government of India and will allocate Ministers for the said business.

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Is article 77 bailable?

Till now, there hasn’t been any clear-cut proclamation in the Constitution regarding this matter. Bail may or may not be granted in this matter, based on the decree passed by the Court.

What is the punishment for the article 77 Case?

Negligence on anyone’s part can cause unwanted danger to not only the people but also to the Nation’s security. Central Government performing this kind of negligence can cause havoc in the nation’s economy. There is no remarkable punishment for this offence but with strong evidence, Court can pass a rigorous decree.

Is article 77 a cognizable offence or a non-cognizable offence?

A cognizable offence is defined as an offence where a police officer can arrest a person without a warrant. After the arrest has been made, the accused will be presented before the Magistrate within 24 hours. In this case, it is a non - cognizable offence as the government has to be very cautious in such matters. There is no punishment specified but the Court can levy a heavy fine or pass a severe decree if the accused is proved guilty.

How to file/defend your case for the article 77 offence? 

Defending or filing, in this case, can be a task to advocates. Article 77 is only a directory order and not a mandatory order. It certainly depends on the present Government to always keep this clause in mind but perhaps not follow it in execution at all. This can cause a hindrance in case. If the prosecution has strong and vital evidence through which it can be observed that this execution deliberately does not have the President’s name and the accused has a malice intention in this merger. The accused can be punished as the Court fits it mandatory.

Is article 77 a bailable or non-bailable offence?

As stated above, there are no rigid laws in this matter, the accused can be set free before the trial on bail if the Courts deem fit.

Any famous judgment w.r.t. article 77:

  1. Union Of India vs K.S. Krishnaswamy And Anr. on 29 April 2005: In Chitraleka R v. the State of Mysore, AIR 1964 SC 1823, a Constitution Bench of the Supreme Court, after concerning the judgment of the Supreme Court within the case reported in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317 held that the law is well settled now that Article 77 of the Constitution of India isn't mandatory but only directory in character. During this case, the clarification dated 11.5.2001 isn't expressed to be taken within the name of the President. And have decided to travel through the file produced by the learned Additional lawman to hunt out whether the clarification dated 11.5.2001 is in compliance with the necessity of Article 77 of the Constitution of India. On browsing the file, they found that aside from the Minister of State and therefore the Minister of Finance signed the proceedings, there's an endorsement namely, "Prime Minister approved", under the authentication of the Secretary Personnel/Director of the Prime Minister's Office. The said proceeding has come to be issued by the suitable authority namely, the Ministry, and Rule 3 of the govt. of India (Transaction of Business) Rules, 1961 issued under Article 77(3) of the Constitution of India enables such decision to be taken by the concerned Ministry. Accordingly, we conclude that the clarification dated 11.5.2001 is valid and its an executive action taken by the govt. of India in accordance with the principles framed under Article 77(3) of the Constitution of India.

  2. Major E. G. Barsay vs The State Of Bombay on 24 April 1961: The appellant and five other persons, three of them not being public servants, were charged with criminal conspiracy to dishonestly or fraudulently misappropriate or convert to their own use military stores and with dishonestly and fraudulently misappropriating an equivalent. The sanction for prosecution of the accused was given by a Deputy Secretary on behalf of the Central Government. The accused were tried by a special judge. the most evidence led was that of 1 L, a security officer, who had been asked to hitch the conspiracy and who had joined it with a view to possess the offenders apprehended. The Special Judge convicted all the accused persons. On appeal, the supreme court confirmed the conviction of the appellant and one other accused now dead and acquitted the other four accused persons holding that the evidence of L was corroborated in material particulars in respect of the appellant and one other accused only. The appellant contended:-

1. That the appellant who was subject to the military Act could only be tried by a Court Martial and thus the Special judge had no jurisdiction to undertake him,

2. That the sanction to prosecute was void because it wasn't expressed to be 196 made within the name of the President,

3. That the investigation by the Inspector of Police was illegal,

4. That there might be no legal charge of a conspiracy between accused who were public servants and accused who weren't, and

5. That L was a completely unreliable witness whose testimony got to be rejected totally and the little question of its corroboration arose.

Held, that the Special Judge had jurisdiction to undertake the appellant for the offences charged. The military Act doesn't bar the jurisdiction of criminal courts in respect of acts or omissions which are punishable under the military Act also as under the other law effective. The offences charged were triable both by the Special judge and by a Court Martial.

In such cases s. 125 of the military Act provides that if the designated officer decides that the proceedings should be before a Court Martial he may direct the accused to be detained in military custody. But within the present case, the designated officer had not exercised his discretion and therefore the Army Act wasn't within the way of the Special judge exercising his jurisdiction. Rule 3 made under s. 549, Code of Criminal Procedure for persons subject to law was applicable only to magistrates and to not a Special judge who isn't a magistrate within the meaning of r. 3. Besides, s.7 of the Criminal Law(Amendment) Act, 1952, provides that notwithstanding anything contained within the Code of CriminalProcedure or in "any other law" the offences laid out in s. 6(1) shall be triable by Special judges only. The words “any other law" included the military Act also. The offences that the appellant was convicted of were offences laid out in s. 6(1) and were exclusively triable by a Special judge. Held, further, that the sanction for the prosecution of the appellant was an honest and valid sanction. Article 77 of the Constitution which provides that each one of orders of the Central Government shall be expressed to be within the name of the President is merely directory and not mandatory. Where an order wasn't issued in strict compliance with the provisions of Art.77 it'd be established by extraneous evidence that the order was made by the suitable authority. within the present case, there was uncontroverted evidence which established that the order of sanction was made by the Deputy Secretary on behalf of the Central Government in the exercise of the power conferred on him under the principles delegating such power to him.


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The government always wants the best for the nation and its people. The President is the first citizen of India has always fabricated policies that are in favor of the nation. This clause is a mere direction to the extensive view of India’s growing large economy by preferring and promoting small businesses, labels made in India, etc. This clause will keep the present government in-check  as well as promote India to become self - sufficient or as exclusively quoted by our beloved Prime Minister  “ Atmanirbhar Bharat”

This remarkable article was drafted by Ms. Nishi Ved, a Fourth-year B.L.S.L.L.B. student, M.K.E.S. College of Law, Mumbai.
Offence Punishment Cognizance Bail Triable By
Act of judge when acting judicially Depends on Magistrate non-cognizable Bailable Any Magistrate
Offence Act of judge when acting judicially
Punishment Depends on Magistrate
Cognizance non-cognizable
Bail Bailable
Triable By Any Magistrate


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