The central legal point established is that for an offense under Section 353 of the IPC, there must be a lawful discharge of duties by the public servant, and the absence of force or assault in the present case led to the quashing of the FIR and criminal proceeding.

JUDGMENT

R. M. Joshi, J. - By this application the applicant is seeking quashment of FIR bearing No. I-252 of 2019 registered with City Chowk Police station, Tq. and Dist. Aurangabad for the offences punishable under Sections 353, 504, 506 read with Section 34 of the Indian Penal Code (for short 'IPC') and consequent criminal proceeding bearing R.C.C. No. 2207 of 2019 pending before Judicial Magistrate First Class, Aurangabad.

2. It is the case of the applicant that he is the owner of property bearing CTS No. 11583. On 16th July, 2019, when the respondent No. 2 came to the spot to remove the alleged encroachment, the applicant informed him that he is the lawful owner of the property and also showed the property card indicating name as an occupier. The applicant claims that the respondent No. 2 lodged a false complaint against him.

3. Report lodged by the respondent No. 2 indicates that pursuant to the Suo Moto Public Interest Litigation bearing No. 3 of 2019 in respect of encroachment on Salim Ali lake, direction was received from authorities of the Corporation for removal of encroachment and accordingly meeting was held wherein action of demolition was directed to be taken. Police protection was also sought for the said drive to be held on 16th July, 2019. According to the informant at about 1.30 pm on 16th July, 2019 he along with the Officers of Corporation and other staff was present in the area of Dr. Salim Ali lake. It is alleged that Namdev Sahane has encroached on the jogging track to the extent of 30 x 50 sq.ft. shed wherein he does furniture business. It is also stated that prior to the actual removal of encroachment respondent N0. 2 had been to the spot 2-3 hours and made request for the removal of the same. However, applicant and his relative Navid Shaikh abused, threatened him and rushed on his person. Respondent No. 2 informed them that the action of removal of encroachment is being undertaken pursuant to the directions of the High Court. It is alleged that the applicant and his relative created ruckus at the spot and caused obstruction to the lawful discharge of duties of respondent No. 2.

4. Learned counsel for the applicant submitted that under the false pretext of order passed by the High Court the action of demolition has been taken and which is in contravention with the order of injunction granted by the Civil Court in respect of the concerned structure against Corporation. He drew attention of the Court to the various orders passed in relation to the subject property. It is also submitted that High Court did not issue any direction on or before 16th July, 2019 to remove any construction and therefore, the respondent No. 2 was not discharging his lawful duty when he demolished the structure and hence question of attracting provision of Section 353 of the IPC does not arise. He also argued that even otherwise if the entire material placed on record is accepted as it is but still no offence is made out for assault or use of criminal force to deter public servant i.e. respondent No. 2 from discharge of his duty.

5. Learned counsel for the respondent No.2 submitted that a suo moto petition was taken up by the High Court in respect of the encroachment carried on or around Dr. Salim Ali lake. According to him, pursuant to the proceedings held before the High Court, it was expected from the Corporation to take action against the unauthorized structures standing around the concern place and hence the action of demolition was undertaken and respondent No. 2 was discharging his official duty, when he was obstructed by applicant.

6. Learned APP vehemently opposed the application by submitting that as per the record the action of demolition was undertaken pursuant to the directions passed by the High Court in suo moto petition. He, however, was unable to show any such order being passed on or before 16th July, 2019. It is also submitted that applicant has no concern with the subject property, but he obstructed respondent No.