The central legal point established is that for an assault under S.353, I.P.C., the public servant must be actually executing his duty as such to be protected under the provision.

1. This is a petition by accused 1 and his father, accused 3, to revise a judgment of the Sub-Divisional Magistrate, Trivandrum, by which, on appeal, he affirmed the convictions of the accused by the Stationary Second Class Magistrate, Neyyattinkara, under S.353, I. P. C. and under S.353 read with S.109, I.P.C. respectively. In appeal, the accused were sentenced to pay a fine of Rs. 200/- each, and in default, to undergo simple imprisonment for two months.

2. The broad facts are, that when Pw.1, a Co-operative Extension Officer was proceeding to Trivandrum in a State Transport Bus, after 5 P. M., after attending a meeting of a Co-operative Society, the first accused assaulted him at the instigation of the third accused, at the Pulluvila bus stop. The courts below have entered the conviction under S.353, I. P. C. on the finding, that Pw.1 while travelling in the bus, was executing his duty as a public servant. His headquarters and his residence are at Athiyannoor, a few miles away from Trivandrum. From the meeting place, he had to come to Trivandrum, and then take the bus to Athiyanoor. The principal question for decision in this revision petition, is whether Pw.1 was executing his duty as a public servant, when he was travelling in the bus.

3. It was not disputed, that he was executing his duty as such, while attending the meeting of the Co-operative Society. According to Pw.1, his duty extended till he submitted the report of the meeting to the officer at his headquarters. The learned Sub-Divisional Magistrate took the view, that Pw.1 must be deemed to have been on duty, till his return journey to the headquarters was completed. S.353, I.P.C. has the following words, which alone are material for this case:

"Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant "

No decided case exactly covering the point for determination was placed before me. The plain meaning of the above seems to me to be, that the public servant must be actually executing his duty as such. The object of the Indian Penal Code in prescribing a severer sentence for assault on a public servant, has been stated thus, by H. S. Gour in The Penal Law of India, 1955 Edition, Volume 2, page 1568:-

"This offence consists of assaulting or using criminal force on a person who is at the time of the offence a public servant in the execution of his duty. As such, he is often exposed to considerable risks in the discharge of his official duties, and the law, therefore, throws round him a special protection by prescribing specially deterrent sentences to those who offend against the majesty of the law of which he is a minister. As, however, it is not intended to encircle him with a perennial halo of sanctity and inviolability, the Code has throughout, in referring to him, protected him only when he is in the execution of duty, he being left at other times to have recourse to the ordinary law applicable to all alike."

It is somewhat far fetched to extend this principle to the present case, whether Pw.1 was travelling home, or proceeding to his headquarters. Travelling as such was not part of his official duty, though of course, in order to attend to such duty, he had to do some travelling that day. In my opinion, the above provision can apply only, when the public servant is discharging the duty imposed on him by virtue of his office; in other words, he must be performing an act, which is so integrally connected with the duty attached to his office as to form part of it. It is too much to say, that he was travelling by virtue of the office which he held. The superior protection afforded to a public servant was not available to Pw.1 under such circumstances; he must rank with any other citizen of the country, when he is not engaged in the performance of his official duty. In this view, the conviction under S.353, I. P.C. cannot stand, but must be altered to conviction under S.352, I.P.C.

4. The