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RAMESH CHANDRA v STATE - CRLMP Case No. 384 of 2003  RD-RJ 294 (12 January 2007)
S.B.CRIMINAL MISC. PETITION NO.384/2003
(Ramesh Chandra Vs. State of Raj.)
Date of order : : 12.1.2007
HON'BLE MR. KRISHAN KUMAR ACHARYA, J.
Mr.Karan Singh, for the petitioner.
Mr.Ashok Upadhyay, PP for the State.
By way of instant petition under Section 482 Cr.P.C., the petitioner seeks to quash the order dated 4.12.2002 passed by learned Additional Chief Judicial Magistrate, Pratapgarh whereby he has taken cognizance against the petitioner for offence under Section 353 IPC.
I have heard learned counsel for the parties and perused the relevant documents produced before me. It is submitted by learned counsel for the petitioner that no case for offence under Section 353 IPC is made out against the petitioner as there is no evidence to show that the petitioner has assaulted or used criminal force to prevent the public servant from discharging his public duty. Only some words were uttered before the Tehsildar, Pratapgarh and merely use of some words cannot be treated as assault or criminal force. Learned counsel for the petitioner has drawn my attention towards the FIR as well as statements of the witnesses and states that learned Judicial
Magistrate has not applied his mind while taking cognizance under
Section 353 IPC against the petitioner. The order passed by learned Magistrate is abuse of process of the court, therefore, the same may be quashed.
Learned Public Prosecutor has supported the order impugned and stated that when Tehsildar was discharging his public duty, accused-petitioner entered in his office and by making wrong allegations, he uttered so many words which amounts to prevent him from discharging his public duty. He further states that learned trial court was justified in taking cognizance under Section 353 IPC against the petitioner.
In alternate, he states that if the offence punishable under
Section 353 IPC is not made out, the essential ingredients of offence under Section 186 IPC is satisfied as he has obstructed a public servant from discharging his duty. Learned counsel for the petitioner states that no offence under Section 186 IPC is made out against the petitioner also.
I have considered the submissions advanced by learned counsel for the parties. Before proceeding further, it would be proper to refer the provision of Section 353 IPC which 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."
While going through the legal position as also evidence, it is clear that no case under Section 353 IPC is made out against the petitioner as he has not assaulted the public servant nor used any criminal force. Even taking the allegations made in the complaint on its face value it does not satisfy the essential ingredients of offence under Section 353 IPC.
Looking to all the facts and circumstances of the case and in the interest of justice, the order dated 4.12.2002 passed by learned ACJM, Pratapgarh is set aside. So far as the ingredients of offence punishable under Section 186 IPC is concerned, it is ordered that the learned Magistrate shall consider the matter whether offence under Section 186 IPC is made or not against the petitioner and also from this angle as to whether learned
Magistrate can take cognizance under Section 186 IPC on the police report or not, and pass order afresh after hearing both the parties.
With the aforesaid observations, this misc. petition is disposed of.
(KRISHAN KUMAR ACHARYA), J.
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