S.353 IPC | High Court Disposes Plea Against Enhanced Punishment In Maharashtra For Deterring On Duty Public Servant, Says Govt Committee Reviewing

The Bombay High Court recently disposed of a writ petition challenging the constitutional validity of enhanced punishment in Maharashtra for assault or criminal force to deter a public servant from discharging duty.

The Code of Criminal Procedure (Maharashtra Amendment) Act, 2017 enhanced the maximum punishment under section 353 from two years to five years and made the offence triable before the sessions court instead of a magistrate.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor disposed of the petition in light of state government resolution forming a committee to consider all aspects of section 353.

“Since all the aforesaid aspects appear to be under review at the government level itself as the same are being considered by the committee constituted under the Government Resolution dated 22nd February, 2023, no purpose would be served in keeping this Writ Petition pending before this Court, which is hereby disposed of with the liberty to the Petitioners to make an appropriate written representation setting out their grievances and making suggestions as well, to the committee through its Member Secretary” the court stated.

The petition, filed by a group named National Lawyers Campaign for Judicial Transparency and Reforms and five advocates, sought a declaration that the provision was ultra vires and unconstitutional.

Assistant Government Pleader (AGP) for the State of Maharashtra drew the court's attention to a Government Resolution issued on February 22, 2023. This resolution established a high-level committee, chaired by the Chief Minister, tasked with investigating various aspects of Section 353 of the IPC as it applies in the state of Maharashtra.

The committee comprises of the Deputy Chief Minister, the Minister of Parliamentary Affairs, leaders of the opposition in the Legislative Council and Assembly, as well as two members of Legislative Council and three other members of the Legislative Assembly. Additionally, the committee includes top officials such as the Additional Chief Secretary (Home), Principal Secretary (Law and Justice), and Principal Secretary (Home Special). The Principal Secretary (Home-Special) is the Member Secretary of the committee, with provisions allowing other relevant officers to participate in the deliberations as special invitees.

Given the ongoing review process conducted by the government committee, the court deemed it unnecessary to continue with the pending writ petition. The court directed the petitioners to submit their representation within two weeks from the date of the court's order (November 3, 2023). The committee was instructed to consider the submitted representations and suggestions. The court also left it to the discretion of the committee to decide whether the petitioners should be given an opportunity for a hearing.

The petition –

The petition alleged that some of the petitioners were attacked by the police while discharging their duty towards their clients. It further alleged that false FIRs were registered against them under section 353 of the IPC.

The petition claimed that enhancing the punishment and making the offence triable by a Session Judge has resulted in “the gross abuse of the amended section by police, particularly against lawyers, who have to often come in contact with the Police in the discharge of their professional duties.”

The petition highlighted that if lawyers are accused under this section while performing their professional duties, they face trial before a Sessions Judge and potential imprisonment of up to 5 years. However, a police officer accused of assaulting a lawyer, is only charged under sections 323, 324, and 325 of the IPC, which carry lesser punishments and are not cognizable offenses. It argued that lawyers, as officers of the court, should be treated on par with the police under the penal law.

Advocates Mathews Nedumpara, Hemali Kurne and Sandhya Tirmare represented the Petitioners.

AGP Manish Upadhye represented the State of Maharashtra.

Case no. – Writ Petition (L) No. 21126 of 2023

Case title – National Lawyers Campaign for Judicial Transparency and Reforms & Ors. v. State of Maharashtra & Ors.