Asif Khan Ishak Khan Pathan vs The State Of Maharashtra And ...
2018 Latest Caselaw 1257 Bom

                                                                       Appln3246-14.odt

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                CRIMINAL APPLICATION NO.  3246 OF 2014

         Asif Khan  s/o Ishak Khan Pathan,                ...    Applicant
         Age 35 years, Occu:  Agri.                              (Orig.Accused)
         R/o Asegaon, Tq. Gangapur,
         District Aurangabad. 
         VERSUS

1.       The State of Maharashtra
         Through Polcie Inspector, Begumpura
         Police Station, Aurangabad.

2.       Kailas Ramlal Kachwa,                            ...    Respondents 
         Age 26, Occu: Service,
         R/o B.No.2580, Police Cosntable
         Police Headquarets, Aurangbad
         District Aurangabad
Mr.  Khizer Patel Advocate for the applicant
Mr. S. J. Salgare, APP for the respondents State.
                                CORAM            :  T. V. NALAWADE  AND 
                                                    K. L. WADANE, JJ.
                                DATE:            : 30th July, 2018

JUDGMENT ( Per K. L. Wadane,J.):     

1. Rule. Rule made returnable forthwith. With the consent of the

parties, the application is taken up for final hearing.

2. The application is filed under section 482 of the Code of

Criminal Procedure for relief of quashing of first information report

bearing Crime No. I-73/2014 registered with Begumpura Police

Appln3246-14.odt Station, Aurangabad for the offence punishable under Section 353 and

332 of the Indian Penal Code.

3. During pendency of the application, charge-sheet is filed in

the matter. Applicant seeks permission to amend the application so as

to challenge the charge sheet. Permission granted. Amendment to be

carried out forthwith.

4. Respondent No.2/original complainant who is Police

Constable lodged first information report against the present applicant

on 05.05.2014, alleging that he was on duty up to 8.30 p.m. at Traffic

Branch and after the duty time was over, while he was going to his

home at 8.40 p.m. on his motorcycle alongwith his colleague friend Mr.

Katkar via Delhi Gate, the applicant who was riding scooty with lady

pillion rider, gave dash to their motorcycle. When the complainant

advised him to ride the vehicle properly, the applicant made allegation

against the complainant of insulting him and outraging modesty of his

wife and started quarreling with the complainant and assaulted the

complainant on his chick and also broken the name plate/buckle from

the uniform of the complainant. The applicant also threatened the

complainant that his relative is in Police department he took photo of the

Appln3246-14.odt complainant and his motorcycle. The friend of the complainant Mr.

Katkar intervened and tried to separate him and as there was mob of

public his friend informed the control room. The complainant noted the

Scooty No. MH-20 4179 and lodged complainant against the rider of the

Scooty i.e. applicant. With these allegations, offence as referred above

came to be registered against the applicant.

5. Heard Mr. Patel, learned counsel for the applicants and Mr.

Salgare, learned APP for the respondents state.

6. From the contents of the first information report it appears that

on 05.05.2014, at about 8.40 p.m. the applicant who was riding scooty

with lady pillion rider, gave dash to motorcycle of the applicant

Constable who was going home after his duty hours. When the

complainant asked the applicant to stop and advised him to ride the

vehicle properly, the applicant made allegation against the complainant

of insulting him and outraging modesty of his wife and started

quarreling with the complainant and assaulted the complainant on his

cheek and also broken the nameplate from the uniform of the

complainant. On the basis of such complaint, offences punishable under

section 353 and 332 IPC came to be registered against the applicant.

Appln3246-14.odt

7. In order to lodge a proper complaint, mere mention of the

sections and the language of those sections is not sufficient.

Particulates of offence committed by accused and role played by them

in committing that offence need to be stated. Section 353 I.P.C.

provides punishment for using assault or criminal force to deter public

servant from discharge of his duty. Section 332 deals with voluntarily

causing simple injury to public servant in discharge of his public

functions. The offence should have been committed against public

official when the official was discharging his official duties as a public

servant. So, it is to be established that the complainant was discharging

his official duties as a public servant at the time of alleged incident

committed by the applicant with which he is charged in the present

case. From the contents of First information itself, it appears that the

alleged incident took place at about 8. 40 p.m. when the complainant

was going to his home after his duty hours. Therefore at the relevant

time the complainant was not on duty and therefore he cannot be

treated as public servant performing official duty. He was neither on

duty nor in the office premise. The alleged incident or alleged act of

the applicant does not in any way created any obstruction while the

complainant was working and discharging his public duty. At the most

Appln3246-14.odt it can be said an offence of assault or petty quarrel. Therefore, prima

facie the complainant does not attract ingredients of section 353 and

332 of the Indian Penal Code and the does not constitute offence

alleged against applicant. Nothing can be achieved if criminal

proceedings are allowed to be continued against the applicant for the

alleged offence. Therefore, we found considerable force in the

argument of Mr. Patel, learned counsel for the applicant for quashing the

F.I.R. and charge sheet filed against the applicant.

8. In view of the above, in order to to prevent the abuse of

process of law, application is allowed.

9. First information report bearing bearing Crime No. I-73/2014

registered with Begumpura Police Station, Aurangabad and

consequential charge sheet filed against the applicant for the offence

punishable under Section 353 and 332 of the Indian Penal Code are

hereby quashed and set aside.

10. Rule is made absolute in the above terms.

(K. L. WADANE, J.)                                        (T. V. NALAWADE, J.) 

JPC