VIVEK ARORA Vs. SHYAM LAL MALAVAT

JUDGEMENT

(1.) The petitioner Vivek Arora is aggrieved by order dated 5.7.2012 passed by learned Civil Judge & Judicial Magistrate (Jr. Div.), Nasirabad whereby the learned Magistrate has taken the cognizance against the petitioner for the offence under Sec. 323, 504, 354/149 Penal Code and for offence under Sec. 3(1 )(x) of SC/ST (Prevention of Atrocities) Act. The petitioner is also aggrieved by the order dated 7.2.2013 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Ajmer whereby the learned Judge has dismissed the revision petition filed by the petitioner and has upheld the cognizance order dated 5.7.2012.

(2.) The brief facts of the case are that while the petitioner was serving as S.D.M., Nasirabad on 23.6.2004, the complainant Shyam Lal Malavat and his wife, Ram Pyari Malavat (the Sarpanch), along with other persons, went to the petitioner's office in order to give him a representation with regard to the problem of water being faced by the villagers, and with regard to the illegal encroachment which have been made in the village. According to the petitioner, those persons not only entered his office but, also tried to tear the official files lying in the office, and disturbed the furniture lying in the office. Therefore, he lodged a FIR against the complainant Shyam Lal and others. However, according to the complainant, the petitioner and other persons available in the office not only verbally abused them, not only called their names with regard to their low caste status, but they also tore Rampyari's blouse. Therefore, they outraged her modesty. According to the complainant, he tried his levelled best to tell the entire incident to the police, but as the petitioner happened to be the SDM, he prevented the registration of a formal FIR against him and his employees. The complainant thereafter submitted a criminal complaint before the learned Magistrate. The learned Magistrate recorded the statement of Shyamlal under Sec. 200 Crimial P.C. and that of his witnesses under section 202 Cr.RC. Subsequently, by order dated 5.7.2012, the learned Magistrate took cognizance against the petitioner for the afore-mentioned offences. Since the petitioner was aggrieved by the order dated 5.7.2012, he filed a criminal revision before the learned Judge. However, by order dated 7.2.2013, the learned Judge dismissed the criminal revision and upheld the order dated 5.7.2012. Hence this petition before this Court.

(3.) Dr.P.C. Jain, the learned counsel for the petitioner, has raised the following arguments before this Court: firstly, the offence under Sections 323, 504 and 354/149 Penal Code are punishable with less than three years of imprisonment. According to Sec. 468 Crimial P.C., the limitation period for taking cognizance is three years. Although the incident took place in the year 2004, the cognizance was not taken till 2012. Thus the cognizance is hit by limitation: secondly, the petitioner was discharging his duties as a Judicial officer. Therefore, the benefit of protection contained in Sec. 197 Cr.RC. ipso facto should have been given to him; thirdly, the petitioner is equally protected by the Judicial Officers' Protection Act, 1850 ('the Act of 1850'. for short) and by the Judges (Protection) Act, 1985 ('the Act of 1985' for short). Therefore, the cognizance could not be taken against the petitioner as he happened to be discharging judicial function at the time of incident; lastly, relying on the judgment of Rajendra Kumar Vs. State and Ors. (S.B. Cr. Misc. Pet. No. 1224/2009 decided on 23.1.2013), the learned counsel for the petitioner has contended that when a complainant is filed against a public servant, ordinarily the court should send the complaint for further investigation to the police before proceeding in the matter. However, in the present case, the learned Magistrate has failed to do so.