The prosecution must provide clear evidence of criminal force used against a public servant to substantiate a charge under Section 353 IPC.

O R D E R

The revision petitioner herein is the 1st accused in Crime No.591/1998 of the Pala Police Station, registered under Sections 452 and 353 IPC read with Section 34 IPC. The 2nd accused in the crime could not be identified during investigation, and so, the police submitted final report against the 1st accused in court. The 1st accused faced trial before the Judicial First Class Magistrate Court – I, Kottayam in C.C. No.1250/2000, on the allegation that he and the unidentified 2nd accused trespassed into the Nazarate of the Sub Court, Pala at about 11 a.m. on 1.12.1998, with the object of taking some photographs, and when a process server objected and obstructed the same, the 1st accused slightly pushed him aside, and both the accused left the Nazarate with the photographs taken. The police registered the crime on the complaint made by the said process server, and after investigation, the police submitted final report against the 1st accused. He appeared before the learned Magistrate and pleaded not guilty to the charge framed against him under Sections 452 and 353 IPC read with Section 34 IPC.

2. The prosecution examined nine witnesses, and proved Exts.P1 to P7 documents in the trial court. The accused denied the incriminating circumstances when examined under Section

313 Cr.P.C.. He did not adduce any evidence in defence.

3. On an appreciation of the evidence, the learned Magistrate found the accused not guilty under Section 452 IPC, and accordingly, he was acquitted of the said offence. But, the accused was found guilty under Section 353 IPC. On conviction he was sentenced to pay a fine of `2,000/-. Aggrieved by the judgment of conviction dated 21.1.2003, the accused approached the Court of Session, Kottayam with Crl.A. No.50/2003. In appeal, the learned Sessions Judge confirmed the conviction and sentence, and accordingly dismissed the appeal. Now, he is before this Court in revision, challenging the legality and propriety of the conviction and sentence on the ground that there is absolutely no material to satisfy the ingredients of Section 353 IPC for a conviction.

4. On hearing both sides, and on a perusal of the materials, I find that the cryptic complaint made by the de facto complainant does not contain the essentials of the offence punishable under Section 353 IPC. The accused was a journalist attached to the Mangalam Daily, and the unidentified 2nd accused is said to be a photographer of the said Daily. The alleged incident happened when the revision petitioner and his photographer came at the Nazarate of the Sub Court, Pala for taking some photographs. This was prevented and obstructed by the members of staff there, including the process server, who made complaint, and the prosecution would allege that when the accused and his photographer were obstructed, the accused pushed the process server slightly aside and escaped. The trial court rightly found the accused not guilty under Section 452 IPC. For a conviction under Section 353 IPC, the prosecution must prove that criminal force was used by the accused against a public servant with the object of preventing him from discharging his official duty.

5. PW1 is the process server, who made the complaint, and PW2 to PW4 are the other court staff who claim to have witnessed the incident. PW2 to PW4 would say that PW1 had sustained some simple injuries in the alleged incident, but PW1 has no such case. It is not known what injury he had sustained, and what treatment he had undergone. If it is only a case of infliction of simple injury on the body of the public servant, the offence must come under Section 332 IPC. The prosecution does not have such an allegation in the final report. The main offence alleged is under Section 353 IPC. PW1 has no case, how discharge of duty was prevented or obstructed by the accused. What is at the best made out by his complainant, and also his evidence, is that when he obstructed the 1st accused in taking photographs of the Nazarate Sectio