A police officer is not acting in the discharge of his official duties when he accompanies a civil court nazir to deliver possession of a house pursuant to a court order, in the absence of an order from the executing court seeking police assistance.

D.S.Dhaliwal, J.

1. The petitioner herein seeks for quashing of his criminal prosecution in Patliputra P.S. Case No. 150/91 under Secs. 341, 323 and 353 of the Indian Penal Code including the order taking cognizance dated 25.7.1991.

2. As per allegations in the First Information Report on 17.7.1991 at about 8 P.M. A.S.I. Kishuni Ram of Police Station Patliputra opposite-party No. 2 accompanied Ail Ahmad, Nazir and other officials of Civil Court, Patna for delivery of possession of House No. 94 Patliputra Colony as ordered by Civil Court, Patna in Execution Case No. 4/87. While A.S.I. alongwith other members of the party was present in the Verandah of the house, the petitioner came out of the house and on seeing the police party got infuriated. The A.S.I. disclosed his identity and asked the petitioner to vacate the house as per the orders of the court upon which the petitioner started calling him bad names and also caught hold of the A.S.I. by the collar of his uniform. The petitioner also extended threats. However, in the meanwhile members of the Mobile Police Force came there with whose help the petitioner was arrested and taken to Police Station. It is, thus, alleged that the petitioner by catching hold of the collar of uniform and by brandishing his fists obstructed the A.S.I. in discharge of his official duties.

3. I have heard the learned Counsel for the parties and have perused the records with their assistance.

4. The contention of the learned Counsel for the petitioner is that there was no order of the Executing court for police assistance in execution of the warrant of possession. Therefore opposite-party No. 2 cannot be said to have acted in discharge of his official duties when he accompanied the Nazir for delivery of paper at the request of the letter.

5. The records of the execution Court go to show that the warrant for possession was issued on 8.7.1991 whereby Nazir was directed to get the possession of the house in question delivered to the decree holder. There is nothing in the order or in the warrant that Nazir was to take assistance of the police independently of his own. In case the person from whom the possession is to be delivered does not afford free access, the power to get the possession delivered by breaking open any lock or by seeking police assistance vests with the Executing Court under Order XXI, Rule 35 (3). In the instant case, there is no order of the Executing Court seeking police assistance. Therefore, it cannot be said that opposite-party No. 2 accompanied the Civil Nazir in execution of his duties as a public servant. In order to attract an offence under Sec. 353,I.P.C. the assault or use of criminal force on a public servant should be in the course of execution of the official duty of a public servant and that assault or use of criminal force should be with the intent to prevent or deter the public servant from discharging his lawful duty. The words "In the executing of his duty" occuring in Sec. 353 mean in discharge of the duty imposed by law on such public servant in a particular case, and they do not cover an act done in good faith under the colour of office.

6. Faced with this situation the learned Addl. Public Prosecutor and the counsel for private opposite-party submitted that the Nazir who was entrusted with the execution of the warrant was also with opposite-party No. 2 and as such, obstruction and assault also appears to have been made against Nazir so as to attract an offence under Sec. 356, I.P.C. It is further submitted that the court has also taken cognizance for offences under Secs. 323 and 341, I.P.C. which offences are independent of the offence under Sec. 353, I.P.C.

7. I have given by anxious consideration to the contentions raised by the learned Addl. Public Prosecutor but find myself unable to agree with him. The First Information Report although speaks of the presence of the Nazir at the time of alleged occurrence but it is nowhere specifically stated therein