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This revision petition is preferred by the accused against the judgment in Criminal Appeal No.420 of 2005 of the Additional Sessions Judge (Adhoc-I), Ernakulam. He was charge sheeted in C.C. No.1388 of 1999 of the Judicial First Class Magistrate Court, Perumbavoor for having committed the offences punishable under Secs.353 and 323 of the Indian Penal Code (for short, 'IPC'). The learned Magistrate convicted the accused under Secs.353 and 323 IPC and sentenced to simple imprisonment for six months under Sec.353 IPC, sentenced to simple imprisonment for three months under 323 IPC. Against that, the accused preferred the above Criminal Appeal before the Additional Sessions Judge, Adhoc-I, Ernakulam, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition.

2. The charge against the accused is that on

05.03.1999 at 2.15 p.m., he used criminal force to deter the Commissioner and the Taluk Surveyor appointed by the Munsiff Court, Perumbavoor in O.S. No.159 of 1997 and assaulted them thereby, deter public servants from discharging their duty. Kalady Police registered a crime and after completing investigation, Sub Inspector, Kalady laid charge in the trial court. In pursuance of trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P4. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence.

3. The main contention advanced by the learned counsel appearing for the revision petitioner is that there was no obstruction of PW1, the Commissioner and PW2, the Taluk surveyor appointed to measure out the property in O.S. No.159 of 1997 of Munsiff Court, Perumbavoor. PW2 was standing in the Panchayath road and there was no obstruction of the public servant.

4. In reply to the argument, the learned Public Prosecutor submitted that there was specific obstruction in discharging the official duty of PW1 and PW2 when they appeared in the disputed property to comply the directions issued by the Court. The assault was proved and there is no illegality or irregularity in the findings of the courts below. No interference is necessary, hence she prays to dismiss the revision petition.

5. While adverting to the above argument, I have gone through the oral and documentary evidence adduced in this case. In order to attract the offence under Sec.353 IPC, the prosecution has to prove that the victim was a public servant. Secondly, at the time of assault, he must have been acting in execution of his official duty. Thirdly, the assault was intended to deter him from discharging his duty or it was in consequence of anything done or attempted to be done by him in the lawful discharge of his duty.

6. Assault or use of criminal force is a necessary ingredient of the offence under Sec.353 IPC. Secs.350 (Criminal force), 351 (Assault) and 353 (Assault or criminal force to deter public servant from discharge of his duty) of IPC reads as follows:

Secs.350 -Criminal force- “ Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. ” Sec.351: Assault- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit and assault.

Sec.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 dischargi