Assault on a public servant under Section 353 I.P.C. requires that the public servant be acting in the exercise of his official duty at the time of the assault.

Applicant has by this revision petition challenged the judgement of the learned Sessions Judge, Goa, Daman and Diu rendered in Criminal Appeal No. 74/71 by which the learned Sessions Judge confirmed applicant's conviction and sentence of the month's simple imprisonment under Section 353 I.P.C.

2. Applicant at the relevant time was a journalist and editor of a fortnightly namely "The Blade" published from Panaji. The alleged incident took place on 23-7-1968 at about 4 p.m. in the office of the Director of Information and Tourism. It was alleged that on the date and time of the incident the applicant was talking loudly in the office of the above department and disturbing the staff working there. Ramesh Jatkar who was the Information Officer in the Department of Information and Tourism came out of the Director's room and asked the applicant to leave the Office as he was causing disturbance. The applicant instead of leaving the office assaulted Jatkar by catching hold of his neck-tie and shaking him.

3. The defence of the applicant in the trial Court was that the entire case was concocted. The applicant had been criticising the working of the Department of the Information and Tourism and in particular the conduct of then Director Kohli and Information Officer Jatkar in his fortnightly paper. The Blade Peeved by this the complainant maliciously made a false report of assault and mischief. The applicant had gone to the office of the Department of Information and Tourism on the date and time in question to deliver two copies of his fortnightly paper as required by law When he entered the office, complainant Jatkar arrogantly ordered him to get out. The applicant left the office. Thereafter this false case was cooked up.

4. The learned trial Magistrate found the applicant guilty of the offence under Section 353 I.P.C. and sentenced him to one month's simple imprisonment. The learned Sessions Judge affirmed the conviction and sentence.

5. Learned counsel for the applicant at the outset criticised the judgement of the trial court on the ground that the learned Magistrate's approach was perverse in as much as he in flagrant disregard of the principles of criminal jurisprudence started by examining the defence evidence first, instead of assessing the prosecution evidence. Reliance was placed on a decision of the Lahore High Court in Ghulam Nabi v. Emperor AIR 1938 Lah 850 : (40 Cri LJ 185).

6. It is true that the learned Magistrate started discussion of the evidence in a reverse order which was improper and contrary to the well known principles of criminal jurisprudence. The proper course would have been to examine and scrutinise the prosecution evidence first and then to pass on to the defence case. But this irregularity does not help the applicant in this revision petition. Firstly it does not vitiate the judgement. In the Lahore case supra their Lord-ships referred to this irregularity but confirmed the judgement. Secondly the judgement which is the subject matter of this revision is that of the Sessions Judge who fully examined the evidence in proper senesce. The trial therefore was not vitiated by the irregularity, noticed in the trial Court's judgement. I find that this objection is inconsequential.

7. Next point made by the learned counsel for the applicant was that the first information report Exh. A dated 23-7-1968 and forwarded and received at the Police Station on 24-7-1968 was inadmissible in evidence under Section 162 Criminal P.C. as the first information of the offence had been given telephonically by the complainant Jatkar to the Police. That telephonic message, the learned counsel submitted, should be treated as the first information report and as that report was not produced, an adverse inference should be drawn against the prosecution case. It was submitted that in that telephonic message there was no allegation against the applicant. That message was a complaint against one Wilfred an employee of the Tourism Depa