Jostling & Pushing To Wriggle Out Of Arrest Didn't Amount to Criminal Use Of Force : Supreme Court Sets Aside Conviction U/S 353 IPC

The Supreme Court today (August 12) set aside the conviction and sentence of the appellant under Section 353 (assault or criminal force to deter public servant from discharge of his duty) of the Indian Penal Code, 1860.The present appeal challenges the order of the Madhya Pradesh High Court dated October 14, 2009, which confirmed the conviction of the appellant under Section 353 and sentence of six months simple imprisonment and a fine of Rs. 1000 imposed by Special Judge. In this case, a complainant had alleged corruption charges against the President of the committee constituted for construction of Education Guarantee Building. The appellant was entrusted with the enquiry against the complainant for making false allegations against the President. The appellant found charges against the complainant false but when the complainant sought a copy of report, the prosecution alleges that the appellant sought a bribe of Rs. 500.Thereafter, the complainant filed a first information report against the appellant and a trap proceedings were organised by the Police along with the complainant to catch the appellant red-handed. 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.The court perused Section 353 and indicated that its ingredients require 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 imprisonment of either description for a term which may extend to two years, or with fine, or with both.In regards to the conviction of the appellant under Section 353, the court said: “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.”On perusing the evidence, the court found that medical evidence suggest that the appellant and his wife (who was acquitted against all charges) tried to resist against the police officer and therefore the Head Constable sustained injuries. The medical examination of injuries by the doctor indicated that the injuries might have been caused by hard and blunt object. However, the court found: "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 this regard, the court found: “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."Therefore, a bench of Justices B.R. Gavai, K.V. Vishwanathan, and N.K. Singh held: “In short, none of the ingredients of Section 353 are attracted. The jostling and pushing by the accused with an attempt to wriggle out, as is clear from the evidence, was not with any intention to assault or use criminal force.”The court additionally pointed out that as contrast to Section 353, the appellant has not been charged under Section 186 (obstructing public servant in discharge of public function) because that requires a procedure to be followed prescribed under Section 195(1)(a)(i) of the Code of Criminal Procedure, 1973.The court added: “There is not even a complaint by the officer against the appellant for any offence having been committed under Section 186 of the IPC.”Case details: Mahendra Kumar Sonker v The State of Madhya Pradesh, Criminal Appeal No. 520 of 2022Citation : 2024 LiveLaw (SC) 570The judgment can be read/downloaded from here.

Jostling & Pushing To Wriggle Out Of Arrest Didn't Amount to Criminal Use Of Force : Supreme Court Sets Aside Conviction U/S 353 IPC

Gursimran Kaur Bakshi

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