2. Heard learned counsel for the petitioner and learned
Addl. SPP for the respondents and perused the material on
3. A perusal of the material on record will indicate that
Hulimavu, Akshay Nagar, Bengaluru-560 068. On 04.09.2021,
the local police authorities. In pursuance of the same, the
4. It transpires that subsequently, one of the police
Court in the case of K.Azeez and others vs. State of
2. Heard learned counsel for the petitioners
and learned HCGP for respondent No.1 and perused
the material on record.
3. In addition to reiterating the various
contentions urged in the petition, learned counsel
for the petitioners invited my attention to the
impugned complaint dated 15.08.2021 in order to
point out that necessary ingredients constituting the
offence punishable under Section 353 of IPC were
missing/absent in the complaint coupled with the
fact that the remaining offences are non-cognizable
offences, the impugned proceedings without seeking
necessary permission under Section 152(2) of
Cr.P.C. in relation to the non-cognizable offences
deserve to be quashed.
4. In support of his submissions, he places
reliance upon the judgment of the Apex Court in the
case of Manik Taneja and another v. State of
Karnataka and another reported in (2015) 7 SCC
423 and this Court in the cases of Athaulla Jokatte
and others v. The State of Karnataka and another in
Crl.P.No.6314/2022, Sailaja P.V.S. v. The State of
Karnataka and another in Crl.P.No.9452/2022 and
Shri Vijay Tata v. State of Karnataka in
Crl.P.No.9366/2018.
5. Per contra, learned HCGP submits that
there is no merit in the petition and the same is
liable to be dismissed.
6. In Manik Taneja's case supra, the Apex
Court held as under:
10. So far as the issue regarding the
registration of FIR under Section 353 IPC is
concerned, it has to be seen whether by
posting a comment on the Facebook page
of the traffic police, the conviction under
that section could be maintainable. Before
considering the materials on record, we
may usefully refer to Section 353 IPC
which reads as follows:
A reading of the above provision shows
that the essential ingredients of the offence
under Section 353 IPC are that the person
accused of the offence should have
assaulted the public servant or used
criminal force with the intention to prevent
or deter the public servant from
discharging his duty as such public
servant. By perusing the materials
available on record, it appears that no
force was used by the appellants to commit
such an offence. There is absolutely
nothing on record to show that the
appellants either assaulted the
respondents or used criminal force to
prevent the second respondent from
discharging his official duty. Taking the
uncontroverted allegations, in our view,
the ingredients of the offence under
Section 353 IPC are not made out."
7. The said judgment was followed by this
Court in Vijay Tata's, wherein it held as under:
3. Shri C.V.Nagesh, learned Senior
advocate, adverting to the complaint
lodged by one Shri Manjunath.B, Police
Inspector, CCB, Bengaluru, pointed out
that the contents of complaint are to the
effect that Mr. Zaid Khan and Mr.
Sirajuddin held a press conference in Press
club in Bengaluru on 12.12.2018 and in the
said press conference, they had allegedly
made certain uncharitable allegations
against Police officers, CCB, who were
investigating the offences in respect of a
Company called 'Ambident'; and stated
that their investigation had facilitated the
accused in the said case to obtain bail.
With the said allegations, instant complaint
has been lodged alleging offence
punishable under Section 353 of IPC in
Vidhana Soudha police station. He argued
that if the complaint is read in its entirety,
it does not disclose any offence punishable
under Section 353 of IPC. He placed
reliance on Manik Taneja and another v.
NC: 2025:KHC:7122
State of Karnataka and another1 and
submitted that the instant complaint does
not fulfill the ingredients of Section 353 of
IPC. Accordingly, he prays for allowing this
petition.
4. Shri A.S.Ponnanna, learned Additional
Advocate General argued in support of the
complaint.
5. I have carefully considered the
submissions of learned Senior Advocate,
learned Additional Advocate General and
perused the records.
6. Section 353 of IPC reads as follows:
"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." (emphasis
supplied)
7. In substance, what is alleged in the
complaint is that two persons namely, Mr.
Zaid Khan and Mr. Sirajuddin had made
certain uncharitable comments against
Police officers. When the allegations
levelled in the complaint are examined in
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the light of language employed in Section
353 of IPC, it is clear that complaint does
not contain any allegation of assault or use
of criminal force to a public servant with
intent to prevent him from discharging his
duty. It is unfortunate that Police officers
have resorted to registering a complaint
without there being any ingredients
attributable to Section 353 of IPC. In Manik
Taneja, the Supreme Court of India has
held as follows:
"10. So far as the issue regarding
the registration of FIR under Section
353 IPC is concerned, it has to be
seen whether by posting a comment
on the Facebook page of the traffic
police, the conviction under that
section could be maintainable.
Before considering the materials on
record, we may usefully refer to
Section 353 IPC which read as
follows:
"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." A reading of the
above provision shows that the
- 11 -
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essential ingredients of the offence
under Section 353 IPC are that the
person accused of the offence should
have assaulted the public servant or
used criminal force with the
intention to prevent or deter the
public servant from discharging his
duty as such public servant. By
perusing the materials available on
record, it appears that no force was
used by the appellants to commit
such an offence. There is absolutely
nothing on record to show that the
appellants either assaulted the
respondents or used criminal force
to prevent that second respondent
from discharging his official duty.
Taking the uncontroverted
allegations, in our view, the
ingredients of the offence under
Section 353 IPC are not made out."
8. In the circumstances, it leaves no
doubt that the allegations in the complaint
do not conform to the attributes and
ingredients of Section 353 of IPC.
Resultantly, this petition merits
consideration and is accordingly allowed.
FIR No.59/2018 registered in Vidhana
Soudha Police station pending on the file of
I Additional Chief Metropolitan Magistrate,
Bengaluru and all further proceedings
thereon are quashed.
9. At this stage, Shri C.V.Nagesh,
learned Senior Advocate contends that
since this Court has taken a view that FIR
is bad in law and quashed the same, any
materials seized during the course of
investigation shall be returned. He is right
in his contention. In the circumstances,
respondents are directed to release any or
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all articles seized during the course of
investigation, forthwith.
10. In view of disposal of the petition,
I.A.No.1/2019 does not survive for
consideration and the same stands
disposed of.
No costs."
8. Subsequently, under identical circumstances
in Athaulla Jokatte's case supra, this Court held as
under:
"The petitioners are before this Court
calling in question proceedings in
C.C.No.1137/2020 registered for offences
punishable under Sections 143, 147, 148,
427, 353, 332, 188, 109, 120-B read with
Section 14 of the IPC and Sections 2(a)
and (b) of Prevention of Damage to Public
Property Act, 1984.
2. Heard the learned counsel, Sri. Lethif
B., appearing for the petitioners and the
learned HCGP, Smt. K.P. Yashodha,
appearing for respondent No.1 and have
perused the material on record.
3. The learned counsel appearing for the
petitioners would submit that the issue in
the lis stands covered by the judgment
rendered by the Coordinate Bench of this
Court in W.P.No.13328/2018, disposed on
18.06.2021. The learned High Court
Government Pleader would admit the
position that the issue stands covered by
the aforesaid judgment, wherein the Co-
ordinate Bench of this Court has held as
follows:
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"4. The case of the prosecution in brief
is as follows:
The Commissioner of Police, Mangalore
City promulgated the prohibitory order
from 6.00 a.m. to 6.00 p.m. of 08.12.2014
and prohibited assembling of five or more
persons in Mangalore city. The accused
persons violating such prohibitory order
organized procession consisting 2000
persons belonging to Hindu Organization.
When the complainant and his colleagues
tried to prevent the accused from
proceeding with the procession advising
that, that is likely to create communal
tensions, the accused obstructed the police
from discharging their duties, crashed the
barricades erected at the scene of offence,
damaged the police vehicles and caused
injuries to CWS.5 to 8.
5. On receipt of charge sheet, the
Magistrate by order dated 24.10.2016 took
cognizance of the offences punishable
under Sections 143, 144, 145, 147, 148,
153, 188, 332, 353 of IPC and Sections
2(a) and 2(b) of the KPDLP Act and
summoned the accused to face trial for the
said offences.
6. The petitioners seek quashing of
Annexures-A to Annexures-D on the
ground that the prime offence was under
Section 188 of IPC and Section 195 of
Cr.P.C. bars taking cognizance of such
offences, except upon the complaint as
required under Section 200 of Cr.P.C,
therefore the whole proceedings are
without jurisdiction.
7. As rightly pointed out, Section 188 of
IPC is the main offence. The other offences
- 14 -
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flow from that. Section 195(1)(a) of
Cr.P.C. bars the Court to take cognizance
of such offence unless in accordance with
the procedure laid down therein. Section
195(1)(a) reads as follows:
"195. Prosecution for contempt of
lawful authority of public servants, for
offences against public justice and for
offences relating to documents given
in evidence
(1) No Court shall take cognizance-
(a)(i) of any offence punishable under
sections 172 to 188 (both inclusive) of the
Indian Penal Code, 1860 (45 of 1860); or
(ii) of any abetment of, or attempt to
commit, such offence; or
(iii) of any criminal conspiracy to commit
such offence,
except on the complaint in writing
of the public servant concerned or of
some other public servant to whom he
is administratively subordinate;"
8. Reading of the above provision makes
it clear that to take cognizance there
should be a written complaint and such
complaint should be filed either by the
officer issuing such promulgation order or
the officer above his rank. In the case on
hand, as per the complaint itself,
prohibitory order under Section 144 of IPC
was promulgated by the Commissioner of
Police and not the complainant.
9. Further Section 2(d) of Cr.P.C.
defines complaint as allegations made
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orally or in writing to the Magistrate
with a view to the Magistrate taking action
on such complaint under the Code. Only on
such complaint, the Magistrate can take
cognizance under Section 190(1)(a) of
Cr.P.C. Thereafter the procedure
prescribed under Section 200 of Cr.P.C.
has to be followed. Therefore the first
information report, charge sheet and the
order taking cognizance on such charge
sheet are without jurisdiction.
10. Then the question is Annexures-A to
D get vitiated only so far as the offence
under Section 188 of IPC. In para 8 of the
judgment in State of Karnataka v.
Hemareddy, the Hon'ble Supreme Court
held as follows:
"8. We agree with the view expressed by
the learned Judge and hold that in cases
where in the course of the same
transaction an offence for which no
complaint by a Court is necessary under
Section 195(1)(b) of the Code of Criminal
Procedure and an offence for which a
complaint of a Court is necessary under
that sub-section, are committed, it is not
possible to split up and hold that the
prosecution of the accused for the
offences not mentioned in Section
195(1)(b) of the Code of Criminal
Procedure should be upheld."
(Emphasis supplied)
11. Reading of the above judgment
makes it clear that if the offences form
part of same transaction of the offences
contemplated under Section 195(1) of
Cr.P.C, then it is not possible to split up
and hold that prosecution of the accused
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for the other offences should be upheld.
Therefore the entire complaint, first
information report, charge sheet and the
order taking cognizance are liable to be
quashed. The petition is allowed.
The impugned first information report,
complaint, the charge sheet and the
proceedings in C.C.No.3660/2016 are
hereby quashed."
4. For the aforesaid reasons, the
following:
ORDER
i. Criminal Petition is allowed.
ii. Proceedings pending in
C.C.No.1137/2020 before the II JMFC
Court, Mangalore, stands quashed qua the
petitioners."
9. The said position was reiterated by this
Court in Sailaja's case supra, wherein it held as
under:
"The petitioner is before this Court
calling in question proceedings in
C.C.No.5258/2020 registered for offences
punishable under Sections 353 and 506 of
the IPC pending before the Chief Judicial
Magistrate, Bengaluru Rural District,
Bengaluru.
2. Heard the learned counsel, Sri. Lethif
B., appearing for the petitioner and the
learned High Court Government Pleader
Sri.K.S.Abhijith, appearing for respondent
No.1 and have perused the material on
record.
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3. The learned counsel appearing for the
petitioner would submit that the issue in
the lis stands covered by the judgment
rendered by the Coordinate Bench of this
Court in Crl.P.No.9366/2018, disposed on
10.01.2019. The learned High Court
Government Pleader would admit the
position that the issue stands covered by
the aforesaid judgment, wherein this Court
has held as follows:
"7. In substance, what is alleged in the
complaint is that two persons namely, Mr.
Zaid Khan and Mr. Sirajuddin had made
certain uncharitable comments against
Police officers. When the allegations
levelled in the complaint are examined in
the light of language employed in Section
353 of IPC, it is clear that complaint does
not contain any allegation of assault or use
of criminal force to a public servant with
intent to prevent him from discharging his
duty. It is unfortunate that Police officers
have resorted to registering a complaint
without there being any ingredients
attributable to Section 353 of IPC. In Manik
Taneja, the Supreme Court of India has
held as follows:
"10. So far as the issue regarding the
registration of FIR under Section 353 IPC is
concerned, it has to be seen whether by
posting a comment on the Facebook page
of the traffic police, the conviction under
that section could be maintainable. Before
considering the materials on record, we
may usefully refer to Section 353 IPC
which read as follows:
"353. Assault or criminal force to deter
public servant from discharge of his duty.--
Whoever assaults or uses criminal force to
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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.
"A reading of the above provision shows
that the essential ingredients of the offence
under Section 353 IPC are that the person
accused of the offence should have
assaulted the public servant or used
criminal force with the intention to prevent
or deter the public servant from
discharging his duty as such public
servant. By perusing the materials
available on record, it appears that no
force was used by the appellants to commit
such an offence. There is absolutely
nothing on record to show that the
appellants either assaulted the
respondents or used criminal force to
prevent that second respondent from
discharging his official duty. Taking the
uncontroverted allegations, in our view,
the ingredients of the offence under
Section 353 IPC are not made out."
8. In the circumstances, it leaves no
doubt that the allegations in the complaint
do not conform to the attributes and
ingredients of Section 353 of IPC.
Resultantly, this petition merits
consideration and is accordingly allowed.
FIR No.59/2018 registered in Vidhana
Soudha Police station pending on the file of
I Additional Chief Metropolitan Magistrate,
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Bengaluru and all further proceedings
thereon are quashed."
4. A perusal at the complaint and also
the summary of charge sheet does not
disclose that the petitioner has neither
caused injury to the person or property of
the complainant nor committed criminal
intimidation attributable to Section 506 of
the IPC.
5. In the light of the facts obtaining in
the case at hand and the order passed by
the Coordinate Bench of this Court supra,
which covers the case at hand on all its
fours, I deem it appropriate to pass the
following:
ORDER
i. Criminal Petition is allowed.
ii. Impugned proceedings pending in
C.C.No.5258/2020 before the Chief Judicial
Magistrate, Bengaluru Rural District,
Bengaluru stands quashed.
Consequently, I.A.No.1/2022 stands
disposed."
10. In view of the aforesaid facts and
circumstances and the material on record which
indicate that apart from the fact that no ingredients
attracting Section 353 had been made out, in the
absence of necessary permission from the Magistrate
in relation to the remaining non-cognizable offences
as mandated under Section 155 (2) Cr.P.C., I am of
the view that the continuation of the impugned
proceedings qua the petitioner would amount to
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abuse of process of law warranting interference by
this Court in the present petition.
11. In the result, the following:
ORDER
i) The criminal petition is allowed.
ii) The entire proceedings in C.C.No.141/2023
pending before Principal Senior Civil Judge and
JMFC, Puttur, Dakshina Kannada, arising out
of FIR in Crime No.61/2021 registered by
respondent-Police, qua the petitioners, are
hereby quashed."
6. The Apex Court in the case of Mahendra Kumar
Sonker vs. The State of Madhya Pradesh - Criminal
Appeal No.52/2012, in relation to Section 353 of IPC, held as
under:
1. The present appeal calls in question the
judgment dated 14.10.2009 passed by the High
Court of Judicature at Jabalpur, Madhya Pradesh in
Criminal Appeal No. 1949 of 2007. By the said
judgment, the appellant's conviction under Section
353 of the Indian Penal Code, 1860 (for short
'the IPC') and sentence of six months simple
imprisonment and fine of Rs. 1,000/- imposed by the
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Special Judge, Sagar has been confirmed. Aggrieved,
the appellant is in Appeal.
2. Originally, the appellant along with his wife
Mamta stood trial. While the appellant was charged
for offences under Sections 7, 13(1)(d) read with
13(2) of the Prevention of Corruption Act, 1988 (for
short 'the Act') as well as Sections 201 and 353 of
the IPC, his wife Mamta was charged under Section
353 and 201 of the IPC.
3. We are, in this appeal, concerned only with
the conviction of the appellant under Section 353 of
the IPC. The appellant has been acquitted of other
charges and his wife Mamta has been completely
acquitted including for the offence under Section
353 of the IPC. Accordingly, only those aspects of
the facts which have a bearing on the present appeal
are set out hereinbelow.
Brief Facts:
4. The complainant in the original corruption
case is one Babulal Ahirwar (PW-1). It appears that
on his complaint to the Collector about the
irregularities in the work of construction of the
Education Guarantee Building, the then President of
the Committee constituted for the purpose of
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construction, Santosh Ahirwar was removed from the
President's post.
5. The appellant, who was posted as Patwari in
Circle No. 89, Village Naryaoli, District Sagar had
been entrusted with the inquiry into a complaint
against the said Babulal Ahriwar to the effect that he
had made a false complaint against Santosh Ahirwar.
It transpires that the appellant, in the inquiry, found
the charge against Babulal Ahirwar to be false. When
Babulal Ahirwar sought a copy of the report from the
appellant, the case of the prosecution is that the
appellant demanded a sum of Rs. 500/- as illegal
gratification.
6. The said Babulal Ahirwar, on 28.06.2004,
filed a complaint with the Superintendent of Police,
Special Police Establishment Lokayukt, Sagar against
the appellant in this regard. An FIR was registered
under Section 7 of the Act and trap proceedings were
organized. O.P. Tiwari (PW-4) and M.K. Choubey
were co-opted along with the trap party which
consisted of Head Constable Niranjan
Singh, Constable Raj Kumar, Constable Shiv Shanker
Dube and Inspector N.K. Parihar. The case set up by
the prosecution was that they waited for the
accused-appellant and when he arrived at his house,
Babulal Ahirwar accosted him and handed over the
currency to the appellant and signaled to the trap
- 23 -
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party. The trap party arrived there to apprehend the
appellant.
7. We are directly concerned with what
transpired at this point since the only surviving
Section under which the appellant has been
convicted is Section 353 of the IPC. We will deal with
this aspect in detail a little later in the judgment.
8. Special Case No. 20 of 2005 was registered
against the appellant and his wife for the offences
mentioned hereinabove. The appellant and his wife
denied the charges and claimed trial. Prosecution
examined thirteen witnesses and the defence
examined three witnesses.
9. By the judgment of 05.09.2007, the learned
Special Judge, Sagar while acquitting the appellant
for offences under Sections 7, 13(1)(d) read with
13(2) of the Act and Section 201 of the IPC,
convicted him for the offence under Section 353 of
IPC and sentenced him to undergo simple
imprisonment for six months. Additionally, a fine of
Rs. 1000/- was imposed and the appellant's wife was
acquitted of all the charges.
10. Aggrieved, the appellant preferred an
appeal to the High Court which has since been
dismissed.
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11. Insofar as the charge under Section 353 of
the IPC was concerned, the allegation was that the
appellant in collusion with his wife with an intention
to obstruct the members of the trap team in
performing their public duty during the trap
proceeding, attacked them or exercised criminal
force on them. It is this part of the case which has
been believed by the courts below.
12. We have heard Mr. Siddharth Aggarwal,
learned senior counsel for the appellant and Mr.
Arjun Garg, learned counsel for the respondent
State.
CONTENTIONS:
13. Mr. Siddharth Aggarwal, learned senior
counsel contended that the courts below were not
justified in recording the conviction under Section
353 of IPC; that on the same evidence the wife of
the appellant, Mamta has been acquitted; that the
evidence of PW-1 Babulal Ahirwar, PW-4 O.P. Tiwari,
PW-8 N.K. Parihar, PW-9 Niranjan Singh read with
the evidence of PW-13 Dr. H.L. Bhuria, do not make
out a case for conviction under Section 353 of IPC
against the appellant and that none of the
ingredients required to maintain a conviction
under Section 353 of IPC have been established. Mr.
Arjun Garg, learned counsel for the State defended
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the conviction and prayed that no case for
interference with the concurrent conviction is made
out.
14. We have carefully considered the
arguments of the parties and have perused the
records of the case, including the original records.
15. At the outset, we extract hereinbelow
Section 353 of the IPC:
"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."
A perusal of Section 353 indicates that
whoever assaults or uses criminal force (a) to any
person being a public servant in the execution of his
duty as such public servant, or (b) with intent to
prevent or deter that person from discharging his
duty as such public servant, or (c) 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 the
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imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
16. It is important at this stage to notice the
definition of criminal force as defined in Section
350 of the IPC.
"350. Criminal force.- Whoever intentionally
uses force to any person, without that person's
consent, in order to the committing of any
offence, or intending by the use of such force to
cause, or knowing it to be likely that by the use
of such force he will cause injury, fear or
annoyance to the person to whom the force is
used, is said to use criminal force to that other."
As would be clear, what is required to
establish criminal force is intentional use of force to
any person without that person's consent in order to
the committing of any offence.
17. Section 349 of the IPC which defines force
is extracted hereinbelow :
"349. Force.- A person is said to use force to
another if he causes motion, change of motion,
or cessation of motion to that other, or if he
causes to any substance such motion, or
change of motion, or cessation of motion as
brings that substance into contact with any part
of that other's body, or with anything which
that other is wearing or carrying, or with
anything so situated that such contact affects
that other's sense of feeling: Provided that the
person causing the motion, or change of
motion, or cessation of motion, causes that
- 27 -
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motion, change of motion, or cessation of
motion in one of the three ways hereinafter
described.
First. - By his own bodily power.
Secondly. - By disposing any substance in
such a manner that the motion or change or
cessation of motion takes place without any
further act on his part, or on the part of any
other person.
Thirdly. - By inducing any animal to move,
to change its motion, or to cease to move."
18. Assault under Section 351 of the IPC would
mean whoever makes any gesture, or any
preparation intending or knowing it to be likely that
such gesture or preparation will cause any person
present to apprehend that he who makes that
gesture or preparation is about to use criminal force
to that person.
19. In this background, if we peruse the
evidence on record, insofar as the charge
under Section 353 of the IPC is concerned, it will
transpire that none of the ingredients required for
convicting a person under Section 353 of IPC were
attracted.
20. PW-1 Babulal Ahirwar, insofar as this part
of the event that transpired is concerned deposed as
under:
"6. ....The name and address was asked
from the accused and the accused was caught.
On being asked from the accused about the
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money he became uncontrolled and tried to run
from there. Taking advantage of the dark, the
accused threw away those notes.
7. With much difficulty the accused could be
won over. The wife of the accused also came at
that time and crowd had also gathered there.
Wife of the accused was striking her head on
the jeep....."
(Emphasis supplied)
21. PW-4 O.P. Tiwari has deposed as under:
"3. ....When we caught hold of the accused
he was not having money. The applicant then
told that the accused has thrown the money in
the dark. Thereafter the Inspector started
searching the money by starting the torch. The
Inspector found in the light of the torch, one 50
rupees note lying. Inspector Parihar took that
note up and gave it to me and asked me to
keep it. Other notes were also searched there
but notes could not be found there.
4. After that we tried to apprehend the
accused patwari and forced him to sit in the
vehicle to take him to police station Naryaoli but
the accused Patwari objected to it. In spite of
the objection taken by the accused anyhow the
accused was made to sit in the vehicle. At the
same time the wife of the accused arrived and
lay down before the vehicle. In such a condition
the vehicle was reversed and turned back and
we had to go to police station. When the vehicle
moved the wife of the accused started her head
striking with the bonnet of the vehicle. Other
persons present there, caught hold of the wife
of the accused and removed her from there only
then we people took the vehicle and started for
police station Naryaoli...."
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22. PW-8 N.K. Parihar has deposed as under:
"6. ....Therefore the trap team surrounded
the accused and tried to apprehend him. The
accused objected to it forcefully so they could
not catch him all of a sudden.
7. The accused had shouted so crowd had
assembled there. In the meanwhile the accused
took out the bribe notes from his pocket and
had thrown them. The accused was
apprehended. On searching the notes on the
ground only one note of Rs.50/- was seen which
panch witness Shri Tiwari picked up. Looking to
the opposition, we took accused to police
station Naryaoli where solution of sodium
carbonate was prepared, which was colouring
less....
xxx xxx xxx
9. ....I had given one application in regard to
the incident to Station House Officer Naryaoli,
photocopy of which is enclosed. On 30.6.2004 I
had filled MLC form for getting medically
examined the head constable Niranjan Singh,
myself & Rajkumar Sen, on which I had signed
which are P-22 to P-25 respectively. After that I
had handed over the case for investigation to
D.S.P. Shri Ranjan Tiwari."
(Emphasis supplied)
23. We have also perused the original record
insofar as the application given to the Station House
Officer is concerned, the translated portion obtained
officially reads as under:
"To
The PS In-charge
Sic Narayavali (Madhya Pradesh)
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Subject - Regarding the accused Mahendra
Kumar of trap.(Sic)
Shri Mahendra Sonkar was caught taking
bribes on 29/06/03 at 8 O'clock. He called out
to his wife. The woman clung to her husband
to free him. She put her head on the jeep sic
and grabbed the accused's hand and started
pulling him out of the jeep. The accused also
grabbed her hand so that he could escape from
the case by taking shelter of his wife. He also
threw bribe notes but only one note was
recovered in the trap sic. The accused created
a lot of ruckus which disrupted the work.
Please investigate this case.
Sd/-illegible 29.6.04
Sd/-illegible
29.6.04
(Shyam Bihari Mishra H.C.)"
(Emphasis supplied)
This document however does not appear to
have been exhibited.
24. We have also seen Exh.P-22 to Exh.P-25.
The translated portions of which read as under:
"Exh.P-22:
To
The Medical Officer,
District Hospital Sagar District
Sagar
Subject: Regarding medical examination of the
injuries sustained by Head Constable Niranjan
Singh, Special Police Establishment, Lokayukta,
Sagar Division, Sagar and submitting a report
During the trap proceedings dated 29-6-
2004 in Crime No.0/04 under Section
7, 13(1) 13(2) PC Act 1988, when accused
Mahendra Kumar Sonkar and his wife tried to
resist, Head Constable Niranjan Singh sustained
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the following injuries. Please examine and
submit a report.
1. Injury with swelling near the right eye
2. Injury with swelling on the ankle of the right
foot
Sd/-illegible
30.6.04
Ex P 22
PW8 21.11.06
(Satyendra Kumar Singh)
Special Judge and
First Additional Session Judge, Sagar
(Emphasis supplied)
Exh.P-23:
To
The Medical Officer
District Hospital
Sir,
It is requested that Mahendra Sonkar
accused of Crime No.0/04 and his wife opposed
the proceedings, as a result Inspector N.K. Sic
sustained injuries in the middle finger of left
hand causing swelling. Kindly examine and send
report.
Sd/-
30.6.24
Ex P23
PW8
21.11.06
Sd/-
(Satyendra Kumar Singh)
Special Judge and
First Addl Sessions Judge, Sagar
Exh.P-24:
Illegible
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NC: 2025:KHC:7122
Subject : Constable Rajkumar illegible
It is requested that in Case Crime No. sic 7,
13(1) D, 13(2) PC Act, Mahendra Kumar Sonkar
and his wife tried to sic avoid the proceedings and
resisted and hence the constable has suffered the
following injuries to examine & give the report.
1. Swelling in the wrist of the right hand
2. Small scratches on both hands
3. Many sic injuries
Sd/-illegible
30.6.04
Ex P24
PW8
21.11.06
(Satyendra Kumar Singh)
Special Judge and
First Additional Session Judge, Sagar
(Emphasis supplied)
Exh.P-25
Sic District
Subject: Constable Shivshankar sic In the
proceedings of Crime No.0/04 u/s 7, 13(1)D, sic PC
Act, accused Mahendra Kumar Sonkar sic and his
wife resisted in which constable sustained
following injuries. Examine and give the report.
1. There is swelling in the little finger of the right
hand.
2. There is pain in the chest and back.
Sd/-illegible
30.6.04
Ex P.25
P.628
21.11.06
(Satyendra Kumar Singh)
Special Judge and First
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NC: 2025:KHC:7122
Additional Session Judge, Sagar"
(Emphasis supplied)
25. PW-9 Niranjan Singh has deposed as under:
"2. ...After some time the non-applicant Patwari
came by his motorcycle and he contacted with the
applicant in front of his residence. The applicant gave
the amount of bribe to the accused Patwari. He took
it in his hand and placed it in the pocket of his shirt.
3. During this time constable Shivshanker and
Rajkumar suddenly tried to catch and the accused
patwari tried to run away and constable Shivshanker
and Rajkumar caught him. At the same time taking
advantage of the darkness, the accused threw away
the bribe money on the ground and the accused
began to swing and jerk ('jhooma-jhatki' as available
from the Hindi version). At the same time wife of the
accused came out of the residence and began to cry.
Enough crowds assembled at the spot of incident and
patwari was doing too much swing and jerk....
During the incident I had suffered injuries near
my right eye and at the ankle of the right leg. In this
regard my medical examination was also done at
District hospital Tili Sagar"
(Emphasis supplied)
26. We have also examined the evidence of Dr.
H.L. Bhuria PW-13, who recorded the injuries as
mentioned hereinabove and stated that the injuries
might have been caused with hard and blunt object.
(Emphasis supplied)
27. We have also carefully perused the defence
witnesses including the evidence of DW-2 Sitaram
Chourasia who generally states that three to four
persons came and there was pushing and shoving
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NC: 2025:KHC:7122
('dhakka mukki' as is evident from the Hindi
deposition) between the accused and those persons.
28. Having considered the oral evidence and
the medical evidence, we are constrained to conclude
that the prosecution has not established that the
appellant has assaulted or used criminal force
against the trap party. In fact, what transpires is that
when the appellant was apprehended there appears
to have been an attempt by the appellant to wriggle
out and in the process, jostling and pushing appears
to have happened, in the process of the appellant
trying to extricate himself from the arrest. None of
the ingredients of assault or criminal force have been
attracted.
29. Further, there is absolutely no evidence to
show that the accused used any hard and blunt
object. PW-13 Dr. H.L. Bhuria had deposed that the
injuries on PW-9 Niranjan Singh, PW-8 N.K. Parihar,
Constable Raj Kumar and Constable Shivshankar
might have been caused by hard and blunt object. In
view of the above, there is no evidence to indicate
that the accused assaulted or used criminal force on
the trap party in execution of their duties or for the
purpose of preventing or deterring them in
discharging their duties. In short, none of the
ingredients of Section 353 are attracted. The jostling
and pushing by the accused with an attempt to
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wriggle out, as is clear from the evidence, was not
with any intention to assault or use criminal force.
30. In fact, it will be interesting here to
contrast Section 353 of the IPC with Section 186 of
the IPC under which Section the appellant has not
been charged. Section 186 of the IPC reads as
follows.
"186. Obstructing public servant
in discharge of public functions.-
Whoever 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."
31. To take cognizance of Section 186, the
procedure under Section 195(1)(a)(i) of the Cr.P.C.
ought to have been followed. There is not even a
complaint by the officer against the appellant for any
offence having been committed under Section 186 of
the IPC.
32. In view of the above, we have no
hesitation in setting aside the judgment of the High
Court. The result would be that the appellant would
stand acquitted for the offence under Section 353 of
the IPC. The Conviction under Section 353 of the IPC
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NC: 2025:KHC:7122
and the sentence imposed are set aside. The appeal
is allowed. The bail bonds shall stand discharged."
7. In the instant case, material on record clearly
indicate that even before respondent No.2-complainant alleges
that the petitioner was guilty of the offence punishable under
Sections 332 and 353 of IPC by deterring respondent No.2
from performing his public duty or discharging his duty by use
of criminal force, the petitioner had already complained against
respondent No.2 and other police officials in relation to the
dispute between the builders and residents of the aforesaid
residential apartment complex.
8. It is, therefore, clear that the present complaint
lodged by respondent No.2 is in the nature of a counter blast to
the earlier complaint already given by the petitioner against
respondent No.2 and other police officials, which has been
escalated to the Deputy Commissioner of Police and the dispute
between the petitioner, residents as well as the builder
primarily related to the aforesaid residential apartment complex
in which respondent No.2 and other police officials were trying
to interfere.
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NC: 2025:KHC:7122
9. Under these circumstances and in the absence of
necessary ingredients constituting the offences punishable
under Sections 353 or 332 of IPC coupled with the judgments
of the this Court and the Apex Court referred to supra, I am of
the view of that continuation of the impugned proceedings qua
the petitioners would amount to abuse of process of law and
the same deserves to be quashed.
10. In the result, the following:
ORDER
i) The criminal petition is allowed.
ii) The entire proceedings in C.C.No.34303/2021
pending before IX Additional Chief Metropolitan
Magistrate at Bengaluru, arising out of FIR in
Crime No.213/2021, registered by respondent-
Police, qua the petitioner, are hereby
quashed.
SD/-
(S.R.KRISHNA KUMAR)
JUDGE
VM
