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IN THE HIGH COURT OF KERALA
P.V. KUNHIKRISHNAN, J.
Rilgin V. George – Appellant
Versus
State of Kerala – Respondent
B.A. No.3192 of 2021
Decided on : 04-05-2021
S.353 IPC - Bail Application - The court allowed the bail application under S.438 of Cr.P.C. for the accused who were alleged to have committed offences under Ss.143, 147, 148, 353, 323, 294(b) r/w 149 of the Indian Penal Code. The court found that the inclusion of S.353 IPC was questionable as the de facto complainant was not in lawful discharge of his duty as a public servant at the time of the alleged incident, and it seemed to have been added with a mala fide intention to implicate the lawyers in a non-bailable offence. The court emphasized that S.353 IPC requires the assault or criminal force to be to deter a public servant from discharging his official duty, which was not the case here. Therefore, the bail application was allowed and the petitioners were to be released on executing a self bond for Rs.50,000/-.
Fact of the Case:
The accused were alleged to have committed various offences under the Indian Penal Code, including S.353 IPC, in connection with an incident involving a lawyer and a police officer at the High Court premises.
Finding of the Court:
The court found that the inclusion of S.353 IPC was questionable and seemed to have been added with a mala fide intention to implicate the lawyers in a non-bailable offence. The court emphasized that the de facto complainant was not in lawful discharge of his duty as a public servant at the time of the alleged incident, and therefore, S.353 IPC did not apply.
Issues: The main issue was the inclusion of S.353 IPC in the case and whether it was justified based on the circumstances of the alleged incident.
Ratio Decidendi: The court's decision was based on the interpretation of S.353 IPC, which requires the assault or criminal force to be to deter a public servant from discharging his official duty. The court found that this requirement was not met in the present case.
Final Decision: The bail application was allowed, and the petitioners were to be released on executing a self bond for Rs.50,000/-.
Certainly. Based on the provided legal document, here are the key points:
The case involved a bail application under S.438 of the Criminal Procedure Code, concerning allegations of multiple offences, including S.353 IPC, against the accused (!) (!) .
The core issue was whether the inclusion of S.353 IPC was justified, given that the de facto complainant, a public servant, was not in lawful discharge of his official duty at the time of the incident (!) (!) .
The court emphasized that for S.353 IPC to apply, the assault or criminal force must be intended to deter a public servant from discharging his official duty (!) .
The court observed that the de facto complainant was attending an enquiry based on a complaint and was not engaged in official duties at the time of the alleged incident. Merely being in uniform does not automatically invoke S.353 IPC (!) .
It was noted that the inclusion of S.353 IPC appeared to be with mala fide intent, possibly to implicate the lawyers in a non-bailable offence, which the court found questionable (!) (!) .
The court concluded that the allegations did not satisfy the criteria for S.353 IPC, and therefore, the inclusion of this offence was not justified (!) .
The court allowed the bail application, directing the accused to be released on executing a self bond for Rs.50,000/- (!) .
The decision underscores the importance of establishing that the assault was to deter a public servant in the lawful discharge of duty before invoking S.353 IPC.
ORDER :
This Bail Application filed under S.438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.
2. The petitioners are the accused in crime No.171/2021 of Ernakulam Central Police Station. The above case is registered against the petitioner and others alleging offences punishable under Ss.143, 147, 148, 353, 323, 294(b) r/w 149 of the Indian Penal Code.
3. The prosecution case in brief is that the de facto complainant who is working as Circle Inspector of Police, Backel Police Station had come to the High Court in connection with an enquiry being conducted against him about an incident on the basis of a complaint filed by one of the accused in this case regarding a traffic incident in which that accused was taken into custody by the Police and ill treated from Cherthala Police Station. He was a lawyer. Several Advocates gathered before the Cherthala Police Station for the release of that accused. According to the lawyers, the Police ill treated that lawyer without any reason. In connection with the same, an enquiry was being conducted by the higher Police Officers and the Advocate General on 15.02.2021 at the office of the Advocate General within the premises of the High Court. The lawyer who was ill treated by the Police and the Police Officer was present for attending the enquiry. After the enquiry, on his way out of the High Court premises, by the Police Officer, the lawyers including the petitioners formed an unlawful assembly, committed riot armed with deadly weapons and in the prosecution of the common object hurled abuses at him and deterred him from performing his duty as a public servant and also assaulted him.
4. Heard the learned counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submitted that the only non-bailable offence alleged against the petitioners is under S.353 IPC. The counsel submitted that even if the entire allegations are accepted the offence under S.353 IPC is not made out. The counsel submitted that S.353 IPC is included with a mala fide intention to implicate the lawyers in non-bailable offence. The counsel submitted that the registration of the case with S.353 IPC by the Police is illegal. Heard the learned Public Prosecutor also.
5. The only non-bailable offence alleged against the petitioners is under S.353 IPC. S.353 IPC is extracted herein under:-
353. Assault or criminal force to deter public servant from discharge of his duty.— Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or 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 imprisonment of either description for a term which may extend to two years, or with fine, or with both.
6. To attract S.353 IPC, one of the main ingredients is that the assault or criminal force should be to deter the public servant who was discharging his official duty. Admittedly, the de facto complainant was attending an enquiry based on a complaint filed by a lawyer. At no stretch of imagination, it can be said that the de facto complainant was in lawful discharge of his duty as a public servant, at the time of the alleged incident. Simply because he is in uniform, S.353 IPC will not attract. Then, how S.353 IPC is added in this case is a question. I think there is some force in the argument of the petitioners that S.353 IPC is added just to implicate lawyers in non-bailable offence. The superior officers should look into this matter and take appropriate action in accordance to law. I do not want make any further observation about the merit of the case. I leave it there. The Officer is free to conduct an enquiry untrammeled by any observation in this order. I made certain observation only to decide this bail application. According to
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