Crl.O.P.(MD)No.1411 of 2022

BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT

DATED: 29.03.2022

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.(MD)No.1411 of 2022

and

Crl.M.P(MD)Nos.1050 & 1051 of 2022

1.Pratheesh @ Prathish

2.Murugan @ Balamurugan

3.Nagarajan @ Nagarajan N

4.Durai @ Duraisamy

... Petitioners/Accused Nos.1 to 4

Vs.

1.State represented by,

The Inspector of Police,

Kottar Police Station,

Kanyakumari District.

(In Crime No.219 of 2016).

... 1^st Respondent/Complainant

2.S.Sundar,

Head Constable,

Kottar Police Station,

Kanyakumari District.

... 2^nd Respondent/

Defacto complainant

Prayer: Criminal Original Petition filed under Section 482 Cr.P.C.,

to call for the records pertaining to the charge sheet in C.C.No.51

of 2017 on the file of the learned Judicial Magistrate No.II,

Nagercoil and quash the same in respect of the petitioners as

illegal.

For Petitioners

: Mr.G.Anto Prince

For R – 1

: Mr.K.Sanjai Gandhi

Government Advocate (Crl. Side)

ORDER

This Criminal Original Petition has been filed to quash the

proceedings in C.C.No.51 of 2017 on the file of the learned Judicial

Magistrate No.II, Nagercoil, as against the petitioners.

2.The case of the prosecution is that on 29.03.2016, when the

second respondent, who was serving as Head Constable along with one

Home Guard were on police patrol, at about 11.00 p.m., at

Pataslayanvilai Junction, the accused persons had restrained and

abused the defacto complainant and thereby threatened him with dire

consequences. Further, they also restrained him from discharging

their official duty.

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Crl.O.P.(MD)No.1411 of 2022

3.The learned counsel appearing for the petitioners would

submit that it is not at all possible to believe that the police

officer, who was accompanied by a Home Guard, was abused, assaulted

and threatened with dire consequences that too in the junction.

Originally, on the complaint lodged by the second respondent, a case

has been registered in Crime No.219 of 2016 for the offences under

Sections 294(b), 383, 353 and 506(ii) of I.P.C. Subsequently, after

completion of investigation filed final report for the offences

under Sections 294(b), 353 and 506(ii) of I.P.C. He further

submitted that no offence is made out as against the petitioner,

since no ingredients are available to attract the same. In support

of his contention, he also relied upon various Judgments.

4.Heard the learned counsel appearing for the petitioner and

the learned Government Advocate (Criminal Side) appearing for the

first respondent.

5.On a perusal of the statement recorded under Section 161(3)

of Cr.P.C and the charge-sheet filed as against the petitioners

revealed that they were charged for the offences under Sections 294

(b), 353 and 506(ii) of I.P.C.

6.Insofar as the offence under Section 353 of I.P.C is

concerned, the essential ingredients to attract the offence under

Section 353 of I.P.C are that the person accused of the said charge

should have assaulted the public servant or used criminal force with

intent to prevent or deter the public servant from discharging his

duty as public servant. On a perusal of the entire materials

produced along with the charge-sheet, it appears that no force was

used by the petitioners to commit such an offence. That apart, there

is absolutely nothing on record to show that the petitioners either

assaulted the second respondent or used criminal force to prevent

that the second respondent from discharging his official duty.

Therefore, the ingredients of the offence under Section 353 of I.P.C

are not made out.

7.The Honourable Apex Court in the case of Manik Taneja and

another Vs. State of Karnataka and another reported in 2015 (7) SCC

423, held as follows:-

“A reading of the above provision shows that the

essential ingredients to att