2013 Supreme(Raj) 1400
RAJASTHAN HIGH COURT AT JAIPUR BENCH
R.S.Chauhan, J.
Vivek Arora - Appellant
Versus
Shyam Lal Malavat - Respondent
S.B. Cr. Misc. Petition No. 2187 of 2013.
Decided On : 1-07-2013
Advocates:
For the Petitioner:PC. Jain, Advocate.
For the Respondent: Javed Choudhary, Public Prosecutor for State.
The limitation period for taking cognizance of an offence is determined by the more severe punishment prescribed for the offences alleged.
Headnote:
CRIMINAL LAW - COGNIZANCE - LIMITATION - SC/ST (PREVENTION OF ATROCITIES) ACT - PROTECTION TO PUBLIC SERVANTS - JUDICIAL OFFICERS' PROTECTION ACT, 1850 - JUDGES (PROTECTION) ACT, 1985 - INVESTIGATION BY POLICE BEFORE PROCEEDING IN THE MATTER.
Fact of the Case:
The petitioner, a former SDM, was accused of verbally abusing and humiliating a complainant and his wife, who had come to his office to submit a representation. The petitioner claimed that the cognizance taken by the Magistrate was barred by limitation and that he was protected by various laws, including the Judicial Officers' Protection Act, 1850 and the Judges (Protection) Act, 1985.
Finding of the Court:
The Court held that the cognizance taken by the Magistrate was not barred by limitation as the offence under the SC/ST (Prevention of Atrocities) Act carried a punishment of five years, which was more than the three-year limitation period under Section 468 Cr.P.C. The Court also held that the petitioner was not protected by the Judicial Officers' Protection Act, 1850 or the Judges (Protection) Act, 1985 as the alleged acts were not done in the discharge of his official duty. The Court further held that the Magistrate was not required to send the complaint for further investigation by the police before proceeding in the matter.
Issues: 1. Whether the cognizance taken by the Magistrate was barred by limitation? 2. Whether the petitioner was protected by the Judicial Officers' Protection Act, 1850 or the Judges (Protection) Act, 1985? 3. Whether the Magistrate was required to send the complaint for further investigation by the police before proceeding in the matter?
Ratio Decidendi: 1. The limitation period for taking cognizance of an offence is determined by the more severe punishment prescribed for the offences alleged. In this case, the offence under the SC/ST (Prevention of Atrocities) Act carried a punishment of five years, which was more than the three-year limitation period under Section 468 Cr.P.C. Therefore, the cognizance taken by the Magistrate was not barred by limitation. 2. The Judicial Officers' Protection Act, 1850 and the Judges (Protection) Act, 1985 protect judges and other judicial officers from being sued in civil courts for acts done in the discharge of their official duties. However, in this case, the alleged acts were not done in the discharge of the petitioner's official duty. Therefore, he was not protected by these laws. 3. The Magistrate is not required to send a complaint for further investigation by the police before proceeding in the matter. However, the Magistrate may do so if he believes that it is necessary for the proper investigation of the case.
Final Decision: The Court dismissed the petition, holding that the cognizance taken by the Magistrate was not barred by limitation, that the petitioner was not protected by the Judicial Officers' Protection Act, 1850 or the Judges (Protection) Act, 1985, and that the Magistrate was not required to send the complaint for further investigation by the police before proceeding in the matter.
JUDGMENT
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 Section 323, 504, 354/149 IPC and for offence under Section 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 Section 200 Cr.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 IPC are punishable with less than three years of imprisonment. According to Section 468 Cr.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 Section 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 v. 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.
4. Heard learned counsel for the petitioner, considered the case lav. cited at the Bar, and perused the impugned orders.Section
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