1. The instant petition is for impugning the order dated 30th August, 2006 passed by Judicial Magistrate First Class, Bhander in Criminal Case No. 74/04, whereby the learned Magistrate, while rejecting the ground taken on behalf of the petitioner under section 197 of CrPC, has ordered to frame a charge against him for the offence punishable under section 420, 467, 468, 120B of IPC.

2. Shri Gupta, the learned counsel for petitioner, has assailed the impugned order on two grounds :

1. That, section 3 of Judges (Protection) Act; 1985, (hereinafter referred to as the Act) no civil or criminal proceeding can be initiated against the petitioner because he was functioning as Judge, while passing the impugned order dated 2.9.1996.

2. That, the alleged act has been done by the petitioner in the capacity of his being a public servant, hence without prior sanction of section 197 CrPC, cognizance cannot be taken against him. In support, he has drawn attention on an order of this Court passed in Balram Bar Prasad Choubey and another v. Aswani Kumar Yadav and another [2001 (II) MPWN 154 = 2001 (3) MPLJ 363].

3. Shri Sahani, the learned counsel for State has submitted that vide order dated 19th March, 2003, passed by this Court in MCrC No. 1326/ 03, this case was registered by the police.

4. Shri Nitin Mishra for respondent No. 2 has submitted that without following the provision prescribed under section 178 of MPLR Code, 1959 (hereinafter referred to as "the Code") the order dated 2nd September, 2006 was passed by the petitioner. The signatures of Sheeladevi were also forged. The forged act does not come within the purview of the official Act. He has placed reliance on a judgment of the apex Court in State of Kerala v. Padmanabhan Nair [1999 (5) SCC 690].

5. Admittedly, the disputed order of partition has been passed by the petitioner under section 178 of the Code and the order dated 2.9.1996 is appealable. Appeal No. 153/98-99 was also filed by the respondent No. 2 by which the order was set aside. While functioning and passing orders under the Code, Revenue Officer can be considered as a Judge as defined in section 2 of the Act and such orders passed by a Revenue Officer can be deemed to be a judgment. As observed by another Single Bench of this Court in the case of Balram har Prasad (supra), detailed discussion on the point is not required. In that case, mutation order was passed by Naib Tehsildar under the provision of the Code and the same as challenged in the complaint on the same grounds as it has been challenged in this case.

6. On perusal of the para 4 of the complaint dated 11th March, 1999 filed by respondent No. 2, it is alleged that her signatures were forged by co-accused Shyam Swaroop and Kamlesh and not by the petitioner. In view of this fact, the observation of the learned Judge at page 2 of the impugned order, that because the signatures were forged, it cannot be considered an official work of public servant appears erroneous with regard to the petitioner. A bare allegation against the petitioner as per the complaint is that he was involved in the conspiracy of the aforesaid co-accused. On perusal of the order dated 2nd September, 1996, it appears that the papers with regard to the admitted fact of the partition by all the parties including the respondent No. 2, were placed before him by the Revenue Inspector and on the report of Revenue Inspector and on such papers petitioner passed the order. As observed hereinabove, the forged papers were not prepared by him. In view of these facts passing an order by a competent officer under the provisions of the Code primafaciely cannot be accepted that he was also involved in the conspiracy. It is not disputed that the petitioner is a public servant not removable from his office save by or with sanction of the Government. In my considered opinion, the aforesaid act of the petitioner is having a direct nexus with the official duty of the petitioner/public servant in the capacity of suc