Sandesh S/O Nandkishor Sharma vs The State Of Maharashtra Through Pso Ps ...
2025 Latest Caselaw 4017 Bom

Bombay High Court

Sandesh S/O Nandkishor Sharma vs The State Of Maharashtra Through Pso Ps ... on 17 June, 2025

2025:BHC-NAG:5564




              Judgment

                                                                 410 revn128. 24



                                              1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                    CRIMINAL REVISION APPLICATION NO.128 OF 2024

              Sandesh s/o Nandkishor Sharma,
              age: 38 years, occupation: service,
              r/o 214, Housing Board Colony,
              Nandanvan, district Nagpur.         ..... Applicant.

                                      :: V E R S U S ::

              State of Maharashtra,
              through Police Station Officer,
              Police Station: Railway P.S.
              District Nagpur.                     ..... Non-applicant.

              Shri Aniruddha Jaltare, Counsel for the Applicant.
              Shri A.J.Gohokar, Additional Public Prosecutor for the
              Non-applicant/State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 12/06/2025
              PRONOUNCED ON : 17/06/2025

              JUDGMENT

1. Heard finally by consent of learned counsel Shri

Aniruddha Jaltare for the applicant and learned

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410 revn128. 24

Additional Public Prosecutor Shri A.J.Gohokar for the

State.

2. The present revision is filed by the applicant in

connection with Crime No.69/2009 registered with the

non-applicant/police station for offences under Sections

186, 332, and 353 of the IPC. The applicant preferred an

application below Exh.4 under Section 227 of the CrPC

for discharge which came to be rejected by learned

Additional Sessions Judge, Nagpur by order dated

8.7.2014.

Hence, this revision.

3. Brief facts necessary for disposal of the revision are

as follows:

The applicant is arraigned as an accused in the

crime in question on the basis of report lodged by

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410 revn128. 24

Rajendra Hemant Kujur serving as Police Officer in CBI

on an allegation that he received a complaint that the

applicant has demanded the gratification amount and

accepted the same. On the day of the incident, i.e.

22.4.2009, the applicant was proceeding by train to

Tirupati along with his family members and, therefore, he

along with other raiding party members and pancha

intercepted the applicant at the platform. At the relevant

time, the applicant has manhandled him and caused him

injury. Thus, the applicant has used criminal force to

restrain him from discharging official duty. On the basis

of the said report, the police registered the crime against

the applicant.

4. After registration of the crime, the investigating

officer has investigated the crime and after completion of

investigation, submitted chargesheet against the

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410 revn128. 24

applicant. The applicant filed an application for

discharge under Section 227 of the CrPC on the ground

that there is no sufficient and cogent evidence against

him to frame the charge. The prosecution concocted the

story to substantiate their case against the applicant. In

fact, no proper procedure is followed by the CBI Officer

to conduct the raid on an allegation that the applicant

has demanded and accepted the gratification amount.

The entire chargesheet nowhere discloses that the

applicant deterred them from discharging their duties

and thereby committed the offence. The ingredients of

the offence are not made out and no purpose would be

served by forcing the applicant to face the charge and,

therefore, the applicant has filed discharge application

and the same was rejected as the aforesaid.

.....5/-

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410 revn128. 24

5. Being aggrieved and dissatisfied with the same, the

present revision is preferred on the ground that learned

Judge below failed to appreciate the fact that the

ingredients of the offences, that the applicant has

deterred the "public servant" from discharging official

duty, itself are not made out and, therefore, the order

impugned in the revision deserves to be quashed and set

aside.

6. Learned counsel for the applicant reiterated the

contention that for framing of charge also there is no

prima facie material against the applicant. These

allegations are made only to substantiate the case of the

CBI alleging that the applicant has demanded and

accepted the bribe amount. In fact, no trap was laid to

ascertain facts that the applicant has demanded

gratification amount and accepted the same. As far as

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410 revn128. 24

offence under sec 353 of the IPC is concerned, nothing is

on record to show that the applicant has deterred the

"public servant" from discharging official duty by using

criminal force and, therefore, the applicant has made out

a case for discharge.

7. Per contra, learned Additional Public Prosecutor

for the State strongly opposed the application and

supported the order impugned in the revision and

submitted that at the stage of framing of charge,

evaluation of the evidence is not required. What is to be

seen is, whether prima facie case is made out to frame

the charge. The statements of the witnesses and injury

certificate sufficiently show involvement of the applicant.

Hence, the revision being devoid of merits is liable to be

dismissed.

.....7/-

Judgment

410 revn128. 24

8. Before entering into the merits of the case, it is

necessary to see considerations for considering the

application for discharge.

9. It is a settled principle of law that at the stage of

considering an application for discharge, the court must

proceed on the assumption that the material which has

been brought on record by the prosecution is true and

evaluate the material in order to determine whether the

facts emerging from the material, taken on its face value,

disclose the existence of the ingredients necessary of the

offence alleged.

10. The Hon'ble Apex Court in the case of State of

Gujarat vs. Dilipsinh Kishorsinh Rao, reported in MANU/

SC/1113 2023, adverting to the earlier propositions of

law in its earlier decisions in the cases of State of Tamil

Nadu vs. N.Suresh Rajan and ors, reported in (2014) 11

.....8/-

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410 revn128. 24

SCC 709 and The State of Maharashtra vs. Som Nath

Thapa, reported in (1996) 4 SCC 659 and The State of

MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC 338,

has held as under:

"10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu vs. N.Suresh Rajan and ors, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True

.....9/-

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410 revn128. 24

it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has

.....10/-

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410 revn128. 24

been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

11. Thus, the defence of the accused is not to be

looked into at this stage when the application is filed for

discharge.

12. What is to be seen is that, whether there is a

sufficient material to frame the charge. Even, strong

suspicion is sufficient to frame the charge.

13. The materials placed before the court if disclose

grave suspicion, framing of charge is justified.

.....11/-

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410 revn128. 24

14. Thus, what the court has to do is to sift the

evidence and to ascertain whether material is sufficient to

frame the charge. It is not necessary to see whether the

evidence on record would be sufficient to warrant

conviction.

15. With the above principle, if the material collected

during investigation is perused, it would show that as per

the allegations, the complainant who is the police officer

received information that the applicant has demanded

and accepted the bribe and, therefore, to conduct a raid,

he along with the other raiding party members had been

to Railway Station and shown him identity. At the

relevant time, the applicant manhandled him and caused

him injury and deterred him from discharging the official

duty. After registration of the crime, the complainant was

referred for medical examination. The injury certificate is

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410 revn128. 24

also collected. The history narrated before the Medical

Officer shows assault by somebody and the complainant

has received CLW 1/4 cm skin deep. The statements of

the witnesses are to the extent of manhandling the

complainant. Admittedly, the alleged incident occurred

at the railway platform, however the statements of

independent witnesses are not recorded.

16. The applicant is facing charge with an allegation

that by using criminal force, he deterred the public

servant and thereby committed the offence under

Sections 186 and 353 of the Indian Penal Code. Since

the applicant has been charged for committing offences

under Sections 186 and 353 of the IPC, the same Sections

are reproduced for reference:

"Section 186. Obstructing public servant in discharge of public functions. - Whoever

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410 revn128. 24

voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Section 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 to 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".

.....14/-

Judgment

410 revn128. 24

17. For a prohibited act to come within the scope of

the offence under section 353 of the IPC, such an act

must show that assault of criminal force was used to

deter public servant from discharging of his official duty.

Such an act cannot be a mere act of obstruction which is

an offence under Section 186 of the IPC. Something

more is required involving criminal force, or assault to

attract the offence punishable under Section 353 of the

IPC.

18. The Hon'ble Apex Court, in the case of B.N.John

vs. State of U.P. and anr, reported in

MANU/SC0020/2025 (SC) has dealt with this issue and

it is observed that for a prohibited act to come within the

scope of the offence under Section 353 of the IPC, such

an act must qualify either as an assault or criminal force

meant to deter public servant from discharge of his duty.

.....15/-

Judgment

410 revn128. 24

Obviously, such an act cannot be a mere act of

obstruction which is an offence under Section 186 of the

IPC. The offence contemplated under Section 353 of the

IPC is of a more serious nature involving criminal force,

or assault which attracts more stringent punishment that

may extend to two years. On the other hand, the offence

of obstruction covered under Section 186 of the IPC is

punishable by imprisonment, which may extend to three

months at the maximum.

A close examination of Section 353 of the IPC

would indicate that to invoke the aforesaid offence, there

must be use of criminal force or assault on any public

servant in the execution of his official duty or with the

intent to prevent or deter such public servant from

discharging his duty. It would be clear from a reading of

the provisions of Section 186 as well as Section 353 of

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410 revn128. 24

the IPC that Section 353 of the IPC is the aggravated

form of offence where criminal force or assault is

involved. Unlike in the case of Section 186 of the IPC

where voluntarily obstructing any public servant in

discharge of his official function is sufficient to invoke the

said section.

19. In the present case, what can be seen from a

perusal of the contents of the FIR, is that no such

allegation of assault or use of criminal force has been

made. The FIR is based on complaint of the Police

Inspector serving in CBI at Nagpur

20. Thus, considering the allegations, the offence

under section 353 of the IPC, on bare perusal of the FIR

and the statements of various witnesses, is not made out.

Under these circumstances, the applicant has made out a

case to discharge him from the said offence.

.....17/-

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410 revn128. 24

21. As far as the offence under section 186 of the IPC

is concerned, there is an allegation that the applicant

obstructed the public servant in discharging the public

functions. The definition given under Section 186 of the

IPC shows that whoever voluntarily obstructs any public

servant while discharging public functions shall be

punished with imprisonment of either description for a

term which may extend to three months, or with fine

which extend to five hundred rupees, or with both.

22. What is to be noted in the present case is that if

the applicant had actually used criminal force or

assaulted public servant, which would bring the said act

within the scope of Section 353 of the IPC, nothing

prevented the complainant from mentioning the same

before the Medical Officer during his medical

examination. The recital of the FIR nowhere shows that

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410 revn128. 24

he has either used any criminal force or deter the public

servant from discharging the official duty.

23. Thus, in absence of the ingredients, which would

constitute the offence, the contentions of learned counsel

for the applicant that there is no material to frame the

charge against him, in view of Sections186 and 353 of

the IPC, require to be taken into consideration.

24. After having sifted and weighed the evidence on

record, it is clear that, prima facie, offence is not made

out against the applicant and, therefore, material

collected by the prosecution, even if accepted, it would

not be sufficient to establish the case of the prosecution

and, therefore, the conducting of the trial against the

applicant would be an empty formality. I am, therefore,

of the view that the order impugned is liable to be set

aside.

.....19/-

Judgment

410 revn128. 24

25. In this view of the matter, I proceed to pass

following order:

ORDER

(1) The Criminal Revision Application is allowed.

(2) The order dated 8.7.2024 passed below Exh.4 passed

by learned Additional Sessions Judge-15, Nagpur in

Sessions Trial Case No.70/2023 is hereby quashed and

set aside.

(3) The applicant is hereby discharged of offences

Sections 186, 332, and 353 of the IPC.

Revision stands disposed of.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 18/06/2025 11:41:25