R.S. Chauhan, J.

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 petitioners 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 Rampyaris 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 468 Cr.RC. is as under:

"468. Bar to taking cognizance after lapse of the period of limitation.-

(1) Except as otherwise provided elsewhere in this code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence .is punishable with imprisonment for a tern-exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may, the most severe punishment."

5. It is indeed, a settled position of law that while considering tin limitation period under section 468 Cr.P.C, the court is required to see the more severe or the most sentence imposed by law for the concerns offences. In the present case, the cognizance against the petitioner is taken not only for the offences under Secs. 323, 504 and 354/149 IPC, but is also taken for the offence under section 3(1)(x) of SC/ST Act. According to section 3(1)(x) of the SC/ST Act, the punishment is for offence mentioned above under IPC is for a period of less than three years, the fact remains that punishment under the provisions of SC/ST Act is of five years. Therefore, according to section 468(3) Cr.RC., one would have to take five years as period determining the period of limitation. According to Sec.468 Cr.PC. if the offence is punishable by a sentence longer than three years, then no period of limitation would not come in the way of the learned Magistrate in taking cognizance. Thus, the first contention raised by the learned counsel is unacceptable.

6. As far as benefit of section 197 Cr.RC. is concerned, suffice it to say that the protection is given to a Judge or Public Servant only to the extent that the act is carried out "in discharging of his official duty". However, the allegation against the petitioner, and others, is that they had verbally abused complainant and his wife, they had called them names with regard to their low caste status, that they had torn the blouse of the complainants wife. To say the least, such acts cannot be brought within the ambit of words "acting or purporting to act in the discharge of official duty". Moreover once a citizen tries to bring grievance to the notice of the Public Servant, the Public Servant cannot abuse them and then try to hide behind the fig leaf of protection under Section 197 Cr.P.C. Therefore, the second contention raised by the learned counsel for the petitioner is untenable.

7. Section 1 of the Act of 1850 is as under:

"1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders.-

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; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same."

8. A bare perusal of the provision clearly reveals that it protects a Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially from being sued in a Civil Court. Thus the protection does not travel to being tried by a criminal court. Obviously, the petitioner cannot invoke the protection under the Act of 1850. For, he is not being sued in a Civil Court for his judicial act, but is being tried by a criminal court for his non-judicial action.

Section 3 of the Act of 1985 is as under:

"3. Additional protection to Judges.- (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.

(2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge."

9. The said provision uses the words acting or purporting to act in the discharge of his official or judicial duty or function. These words are similar to the words used in section 197 Cr.P.C.. As mentioned above, the alleged acts done by the petitioner were not carried out "in acting or purporting to act in the discharge of his official duty". Hence the protection under the Act of 1985 is clearly unavailable to the petitioner.

10. In the case of Rajendra Kumar (supra), this court has opined as under:

"whenever any complaint received by the Court under Section 190(1)(a) Cr.RC. is being proceeded with by the Court under Chapter XV of the Cr.P.C. i.e. under the provisions of Section 200 and 202 Cr.RC. against public servant/servants wherein the allegations given rise to a reasonable belief that the same may have been filed in relation to an act committed by the public servant in the discharge/purported discharge of official duty, the Court shall generally resort to an inquiry/investigation by the police under Section 202 Cr.RC. before proceeding further in the matter."

(emphasis supplied).

11. However, it cannot be said that the said judgment lays down a universal principle. Once a discretion has been given to the Magistrate, the said discretion cannot be cribbed, cabined and confined.

12. A bare perusal of the impugned order dated 5.7.2012 clearly reveals that the learned Magistrate has not only considered the complaint filed by complainant, but has also considered the statement of the complainant and the statements of his witnesses. Therefore, he has applied his judicious mind. He has concluded that, prima facie, offences under Sections 323, 504, 354/149 IPC and offence under Section 3(1)(X) of SC/ST Act were made out. Merely because the learned Magistrate did not send the complaint for further investigation by the police, the action taken by the Magistrate, in recording the statement of the complainant and his witnesses under the provisions of sections 200 and 202 Cr.RC., cannot be faulted.

13. Similarly, the learned Judge in his order dated 7.2.2013 has discussed the legal position viz-a-viz Section 197 Cr.P.C. He has also noticed the fact that the petitioner had lodged a FIR against the complainant to having disturbed his official functioning. The learned Judge is certainly justified in concluding that in case the complainant had misbehaved or had ransacked the office of the petitioner, he shall face the legal consequences. Hence, the learned Judge had duly appreciated all the facts of the case.

14. Thus, for the reasons stated above, this Court does not find any merit in this petition. Accordingly, this petition is, hereby, dismissed Consequently, the stay application also stands dismissed.

Petition Dismissed.