Violating the instructions of an officer of the Municipal Corporation does not amount to a criminal offence under section 353 IPC.

JUDGEMENT/ORDER :

1. The petitioner has challenged FIR No. 10 of 2020 for offence under section 353 IPC registered with Police Station, Khanyar, Srinagar.

2. Before coming to the grounds urged in the petition, it would be apt to notice the contents of the impugned FIR.

3. On 02.03.2020, the complainant-Nisar Ahmad Azad, Ward Officer, Srinagar Municipal Corporation, lodged a report with the police alleging therein that the petitioner, by abusing and manhandling, has applied men and machinery to start the construction work without obtaining proper permission from the authorities of SMC. The complainant further urged the police to send a party to the site and disengage the men and machinery forthwith and lodge FIR against the petitioner for non-adherence of directions imparted by the complainant.

4. It has been contended by learned counsel for the petitioner that a bare perusal of the contents of the impugned FIR does not make out any offence against the petitioner. Besides this, it has also been contended that the petitioner and complainant-respondent No. 2 have entered into a compromise, pursuant to which statement of the complainant has also been recorded before Registrar Judicial of this Court wherein he has stated that the dispute between the parties has been amicably settled.

5. I have heard learned counsel for the parties and perused the record of the case.

6. While learned counsel for the petitioner has reiterated that the contents of the impugned FIR do not make out any offence against the petitioner, the learned State counsel has vehemently contended that offence under section 353 IPC is made out from the contents of the impugned FIR. To support his contention, learned counsel for the respondent State has relied upon the judgment of Bombay High Court in Amol v. The State of Maharashtra & Anr. (Criminal Application No. 569 of 2019).

7. In order to test the merits of the rival submissions of the parties, it is necessary to have a look at the provisions contained in Section 353 of IPC. It reads as 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 to 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."

8. From a perusal of the aforesaid provisions, it is clear that in order to constitute an offence under the aforesaid provision, the accused should have assaulted or used criminal force against a public servant with an intent to prevent or deter such public servant from discharging his duties as public servant. It is clear that both the assailant as well as the person against whom assault or criminal force has been used should be identified and it has to be shown that the person assaulted was acting in discharge of his duties as a public servant.

9. If we have a look at the contents of the impugned FIR, there is no mention about the identity of the persons or their designations who were allegedly manhandled by the petitioner. What the complainant has alleged is that the petitioner had applied men and machinery to start construction work without obtaining proper permission from the authorities of SMC and requested the police to send police personnel to the spot and disengage the men and machinery applied by the petitioner, because he has not adhered to the directions of the complainant. Thus, it is clear that the complainant has only alleged that the petitioner has not adhered to his instructions to stop construction. There is no mention in the impugned FIR as to who was manhandled by the petitioner and who was abused by him and if so, whether these persons were acting i