Section 353 IPC requires assault or criminal force to deter public servant from duty (absent as only verbal abuse alleged); non-cognizable offences require mandatory prior permission under Section 155(2) Cr.P.C., which was missing, invalidating the prosecution.

ORAL ORDER

Learned counsel for the petitioners has filed a memo seeking withdrawal of the petition insofar as petitioner No.5- accused No.5 is concerned.

2. Same is placed on record.

3. Accordingly, petition insofar as petitioner No.5- accused No.5 is not pressed.

4. Heard learned counsel for the petitioners and learned HCGP for respondents and perused the material on record.

5. A perusal of material on record would indicate that the respondent No.2 filed the instant complaint dated 22.10.2019 against the petitioners alleging offences filed under Sections 3 53 , 427, 504, 506, 143, 147, 149 of IPC r/w Section 3 of Prevention of Damage to Public Property Act , pursuant to which, the respondent No.1 registered the impugned FIR in Crime No.188/2019 which is presently pending in C.C. No.85/2022 on the file of Principal Civil Judge and JMFC, Kadur, Chikkamagaluru District for the aforesaid offence.

6. In this context, a perusal of the impugned FIR, complaint, charge sheet materials, statement of witnesses, document etc., will indicate that the alleged commission of offences by the petitioners 1 to 4 and petitioners 6 to 9 are not forthcoming from the material on record.

7. In this context, it is also relevant to state that in the case of K. Dhananjay vs. Cabinet Secretary and Others the Apex Court held has under;

“Leave granted.

The appellant was an employee of Indian Institute of Astrophysics (Autonomous Institute under the Department of Science and Technology, Govt. of India) in Bangalore. Challenging his dismissal from service, he had filed a petition before the Central Administrative Tribunal at Bangalore Bench.

Meanwhile, the appellant wanted to peruse certain documents, for which permission was given to him. While he was inspecting the documents in the office of Respondent No. 5 Ms. A. Thomeena, Deputy Registrar, Central Administrative Tribunal at Visveswarayya Kendriya Bhawan, Bangalore, it was alleged that the appellant assaulted the officers and therefore, a case was lodged against him under Sections 353 /506 of the Indian Penal Code . His petition for quashing the proceedings has been dismissed and he is before this Court.

Vide order dated 27.08.2024, this Court issued notice to the respondents, including Respondent No. 5 -Ms. A. Thomeena, but no one has entered appearance on behalf of the respondents despite due service.

We have now perused the copy of the complaint Ms. A. which was given by Respondent No. 5 Thomeena, Deputy Registrar to the Inspector of Police, Ulsoor Police Station, Bangalore. The same reads as under :-

"Sir.

Today at 3.05 PM, we had one incident in our office. One Shri Dhananjay who had been a party to the proceedings before us had filed a complaint before the Chief Information Commission seeking certain documents. The CIC vide order No. CIC/CAD/MT/A/2018/611756/SD dated 01.07.2019 and asked us to give some documents. We had kept every document ready and asked him to come and get it and inspect the document which he wanted.

But apparently he wanted some other documents also which we felt had nothing to do with the order of the CIC. Therefore, being an official document, we had refused. Thereupon he started shouting and threatening us. At that time Smt. Rajashri, CPIO, Smt. Rekhashree, who is my PS, and Smt. Geetha who is an MTS were in the room. He threatening and shouted at them and disrupted the work of the office. Hearing the shouts and cries, people around gathered and I had immediately informed the police.

Kindly take necessary action."

It is on the basis of the above complaint that an FIR has been lodged against the appellant. However. the only allegation against the appellant in the said complaint is that he was shouting and threatening the staff. This itself will not amount to any assault.

Assault is defined under Section 353 of the Indian Penal Code as under :-

"353 Assault - Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any