Kundan S/O Khanderao Dhande vs Vasudeo S/O Nivrut Fegde And Anr
2016 Latest Caselaw 6320 Bom

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                                              1




                                                                          
                                
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                  
                                                   
                           BENCH AT AURANGABAD

                      CRIMINAL APPLICATION NO. 4527 OF 2016




                                                 
              Kundan S/o Khanderao Dhande 
              Age : 45 years, Occ : Agri., 
              R/o Nimbhora (Bk), Tq. Raver, 
              Dist. Jalgaon. 




                                         
                                                           ..APPLICANT 
                       -VERSUS-
                             
              1.       Vasudeo S/o Nivruti Fegde 
                       Age : 50 years, Occ : Service Bailiff, 
                            
                       R/o Civil Court, Raver, 
                       Tq. Raver, Dist. Jalgaon.

              2.       The State of Maharashtra 
                       Through Police Station, Nimbhora, 
      


                       Tq. Raver, Dist. Jalgaon. 
                                                  ..RESPONDENTS
   



                                    ....
              Mr. L.V. Sangeet, advocate for Applicant 
              Mr. S.W. Munde, APP for Respondent/State. 





              Mr. P.S. Pawar, advocate for respondent no.1. 

                                    CORAM : S.S. SHINDE & 
                                            SANGITRAO S. PATIL, JJ.

Dated : October 25, 2016 ...

ORAL JUDGMENT (PER SANGITRAO S. PATIL, J)

The applicant has prayed for quashing of Criminal Proceeding bearing

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S.C.C. no.614 of 2013 arising out of F.I.R. bearing C.R. No.4 of 2013 pending before the

Judicial Magistrate, First Class, Raver, Dist. Jalgaon for the offences punishable under Sections 353 and 186 of the Indian

Penal Code (for short, "the I.P.C.".

2. The case of respondent no.1 (i.e.

the informant), in short, is that he being a

bailiff attached to the Court of Civil Judge, Junior Division at Raver visited the land of

the applicant situate at village Vivara (Kh), Tq. Raver, Dist. Jalgaon for executing the decree subject matter of Execution

Petition No. 34 of 2004. When he started to

affix the boundary marks, after measuring the land, the applicant rushed to that spot, shouted at the respondent no.1 and did not

allow him to execute the decree. Since the applicant obstructed respondent no.1 while executing the decree, respondent no.1 lodged report against the applicant in Police

Station, Nimbhora for the abovementioned offences. The investigation followed and the statements of the witnesses were recorded. After completion of the investigation, the applicant came to be charge-sheeted for the abovementioned offences.

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3. The learned counsel for the applicant submits that even if the contents

of the F.I.R. are accepted as they are, the same do not constitute the offence under Section 353 of the Indian Penal Code since

there is no mention that the applicant either assaulted or used criminal force against respondent No.1. Therefore, the applicant was

not liable to be prosecuted for the said

offence. He further submits that as far as the offence punishable under section 186 of

the I.P.C. is concerned, as per Section 195(1)(a)(i) of the Code of Criminal Procedure (for short "the Code"), the Court

cannot take cognizance of any offence

punishable under Sections 172 to 188 (both inclusive) of the I.P.C. unless there is a complaint in writing of the public servant

concerned or of some other public servant to whom he is administratively subordinate. He further submits that the alleged incident took place on 16.01.2013 while the F.I.R. has

been lodged on 06.02.2013. This delay has not at all been explained. In the circumstances, he prays that the abovementioned criminal proceeding may be quashed and set aside.

4. As against this, the learned A.P.P.

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appearing for the respondent no.2/State submits that the applicant obstructed

respondent no.1, who is a public servant, while he was discharging his duty as a bailiff by not allowing him to execute the

decree. According to him, the respondent no.1 could not affix the boundary marks and deliver possession of the land to the decree

holder as per the said decree. According to

him, the contents of the F.I.R., prima facie, disclose the offence under section 353 of the

I.P.C. He, therefore, prays that the application may be rejected.

5. Section 353 of the Indian Penal Code

reads as under :-

"353. Assault or criminal force to

deter public servant from discharge of his duty.-Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person

from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

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6. From the bare reading of section 353

of the I.P.C., it will be clear that the assault or criminal force, as defined in sections 351 and 350 respectively of the

I.P.C. is an essential ingredient to constitute the said offence. As per the Explanation given under Section 351 of the

I.P.C., mere words do not amount to an

assault. In the present case, it is alleged that the applicant shouted and therefore,

respondent no.1 could not execute the decree.

The alleged shouting of the applicant is not stated to be coupled with any other gesture.

Consequently his shouting cannot be termed as an assault. Admittedly, no physical force has

been used by the applicant against respondent no.1. If that be so, the ingredients of the

offence punishable under Section 353 of the I.P.C. cannot be said to have been prima facie disclosed from the F.I.R.

7. As per Section 195(1)(a)(i) of the Code, no Court shall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the I.P.C. except on the complaint in writing of the public servant concerned or of some other public servant to

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whom he is administratively subordinate. The complaint is defined in Section 2(d) of the

Code, which reads as under :-

"2(d) "complaint" means any allegation

made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has

committed an offence, but does not include a police report.

Explanation.-A report made by a police officer in a case which discloses, after investigation, the

commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complaint."

8. In the present case, undisputedly, respondent no.1 has not filed complaint before the learned Magistrate. He has filed

the F.I.R. That F.I.R. was investigated by the Police and after completion of investigation, the applicant has been charge- sheeted for the abovementioned offences. When

the offences under Sections 186 and 353 of the I.P.C. are stated to have arisen out of the same incident, it was not possible to separate them since the facts were indivisible. Therefore, it was necessary for the learned Magistrate to consider the

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provisions of Section 195(1)(a)(i) of the Code and considering the specific bar

contained therein for taking cognizance of the offence under Section 186 of the I.P.C., to refuse to take cognizance of the charge-

sheet for the abovementioned offences in the absence of the complaint in writing, as defined in section 2(d) of the Code. The

learned Magistrate had no jurisdiction to

take cognizance of the said offences. The learned Magistrate has committed a grave

error of law in taking cognizance of the abovementioned offences by totally ignoring the provisions of Section 195(1)(a)(i) of the

Code.

9. So far as the question of delay is concerned, it being a mixed question of law

and facts, we are not inclined to entertain it at this preliminary stage.

10. As stated above, no offence is

disclosed against the applicant punishable under section 353 of the I.P.C. For taking cognizance of the offence under section 186 of the I.P.C., the complaint by respondent no.1 before the learned Magistrate was essential. The learned Magistrate has wrongly

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taken cognizance of the abovementioned offences in absence of such complaint. In the

circumstances, the criminal proceeding instituted on the basis of the abovementioned charge-sheet would not be maintainable.

However, it would be open for respondent no.1 to approach the learned Judicial Magistrate, First Class and subject to the limitation

provided in Section 468 of the Code, file

complaint for the offence under section 186 of the I.P.C., if he so desires.

11. With the above observations, we allow the application and quash and set aside

the criminal proceedings bearing S.C.C.

no.614 of 2013 pending before the learned Judicial Magistrate, First Class, Raver, Dist. Jalgaon.

12. The application is disposed of in the above terms.

(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)

...

SGA