High Court

Legal Reasoning

13553.2023APPLN.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO. 3553 OF 2023Arjun S/o Anandrao ChavanAge : 70 years, Occ : Pensioner,R/o Plot No. 54, Sector C, N-4,CIDCO, Taluka & Dist. Aurangabad..APPLICANT-VERSUS-1.The State of Maharashtra,through the Officer in charge,CIDCO Police Station,Taluka & District : Aurangabad.2.Kashinath S/o Murlidhar PhalakAge : 57 years, Occ : Govt. Officer,R/o Plot no. 106/A, Jal Vishwa Bharati Colony,Near Chetak Ghoda Chowk,Garkheda Parisar, CIDCO,Taluka & District Aurangabad...RESPONDENTS...Shri Rajendra S. Deshmukh, Senior Advocate i/b Shri Kunal Kale andShri Devang R. Deshmukh, Advocates for Applicant.APP for Respondent- State : Shri A.V. Lavate Advocate for Respondent No.2 : Shri R.R. Shinde h/f Mr. S.S. Tope…CORAM :SMT. VIBHA KANKANWADI ANDROHIT W. JOSHI, JJ.DATED : 03rd DECEMBER, 2024., 2024.JUDGMENT (PER ROHIT W. JOSHI, J.) :.The applicant in the present application is aggrieved bythe registration of offence against him with CIDCO Police Station, 23553.2023APPLN.odtAurangabad, vide Crime No.0306/2019, for the offence punishableunder Sections 353, 332, 504, 506 read with Section 34 of the IndianPenal Code (IPC), so also charge-sheet No. 103/2020 dated15.05.2020 and criminal case, being Regular Criminal CaseNo.1126/2020, registered against him and pending on the file of thelearned Additional Chief Judicial Magistrate at Aurangabad. Theapplicant has invoked Section 482 of the Code of Criminal Procedure(Cr.P.C.) in order to seek quashment of FIR and criminal proceeding.2.Respondent No.2 has lodged FIR on 27.05.2019 againstthe present applicant and one G.B. Jagtap. Respondent No.2 wasworking as Incharge Deputy Engineer with Water Supply Departmentof Aurangabad Municipal Corporation on 25.05.2019. He has stated inFIR that a water supply pipeline of the Municipal Corporation in N-4area was damaged on 24.05.2019 as a consequence of which watersupply was adversely affected in the area. He has stated that thenecessary repairs were carried out on 24.05.2019 at around 11.30 p.m.since water supply was to be made on 25.05.2019. He has stated thatthe water supply could not be commenced at the regular time i.e. at6.00 a.m. on 25.05.2019, since appropriate level was not achieved inthe water tank, however, the water supply was resumed at 8.00 a.m.after appropriate level was achieved. The allegation in FIR is thatCorporator of concerned ward had visited the water tank in N-5 at 33553.2023APPLN.odtaround 7.45 a.m. along with other ladies. A verbal duel ensuedbetween the officials of the Corporation and Corporator and othercitizens, which was settled with an intervention of the ExecutiveEngineer. He states that at that time, one G.B. Jagtap had slapped himon his back. As against the applicant, the allegation is that he gotagitated and inquired from respondent No.2 and other officials as towhy regular uninterrupted water supply was not being provided andthereafter hurled abuses at them. It is alleged that having acted thus,Shri G.B. Jagtap and the present applicant created obstacles in theofficial work. On the basis of these allegations, offence under theaforesaid provisions is registered against the present applicant.3.After completion of investigation, the statements of theExecutive Engineer of Aurangabad Municipal Corporation, TankerSupervisor, Lineman, Security Guard and Junior Engineer working withAurangabad Municipal Corporation have been recorded. Based on thesaid report, criminal case is registered against the applicant and thesaid Jagtap vide R.C.C. No. 1126/2020.4.Shri Rajendra Deshmukh, learned Senior Advocateappearing on behalf of the applicant contended that perusal of FIR andother statements recorded by the prosecution would demonstrate thatthe alleged incident, wherein the applicant hurled abuses at 43553.2023APPLN.odtrespondent No.2 and other officials of the Corporation, had occurredafter the water supply was resumed and verbal duel betweenCorporator and other citizens on one side and officials of theCorporation, had come to an end. He states that although at this stage,the Court may not go into the correctness or veracity of the allegations,the contents of FIR and statements are taken on their face valuedemonstrate that the alleged wrongful act on the part of the applicantdid not cause any hindrance in discharge of duty of respondent No.2as a public servant. He states that essential ingredients of Section 353of the IPC are that a public servant should be subjected to assault oruse of criminal force during the course of execution of his duty or withan intent to prevent or deter him from discharging his duty. He statesthat these essential ingredients are not made out in the present matter,and therefore, registration of offence under Section 353 of the IPC isuncalled for. As regards Section 332 of the IPC, he has drawn ourattention to the contents of FIR and statements to point out that thepresent applicant has not caused any hurt to respondent No.2 or anyother officials of the Corporation and as such, Section 332 of the IPCcan also not be invoked against him. He would then state that othersections i.e. Sections 504 and 506 of the IPC are non-cognizableoffences. He has also drawn our attention to Sections 350 and 351 ofthe IPC to contend that the applicant has neither used any forceagainst respondent No.2 nor has made any gesture towards 53553.2023APPLN.odtrespondent No.2 to cause an apprehension that he would use criminalforce against him. He, therefore, states that since ingredients ofSections 350 and 351 of the IPC are not made out, Section 353 of theIPC will also not be attracted since assault or use of criminal force areessential ingredients of the offence under Section 353 of the IPC. He,therefore, submits that FIR and consequent criminal prosecution areliable to be quashed against the applicant. 5.Per-contra, Shri A.V. Lavate, learned APP representingrespondent No.1 and Advocate Shri R.R. Shinde appearing on behalfof respondent No.2 contend that respondent No.2, who is a publicservant, was subjected to assault and criminal force while he was onduty, and therefore, ingredients of Section 353 of the IPC are madeout.6.Having heard learned respective Advocates and onperusal of the contents of FIR and statements recorded, we are of theopinion that there is absolutely no material on record to indicate thatthe present applicant had used criminal force against respondent No.2or that he made any gesture or preparation showing his intention touse criminal force against respondent No.2. As such, essentialingredients of Sections 350 and 351 of the IPC are not made out fromthe material on record. Assault or use of criminal force are essential 63553.2023APPLN.odtingredients of Section 353 of the IPC. Section 353 of the IPC will beattracted when a public servant is assaulted or subjected to criminalforce while he is performing his duty as public servant with intent toprevent or deter him from discharging his duty as public servant. Thematerial on record is also not sufficient to make out second ingredientof Section 353 i.e. intention to prevent or deter a public servant fromperforming his duty as public servant. Thus, we are of the consideredopinion that essential ingredients of Section 353 of the IPC are notmade out in the matter against the present applicant. 7.As regards Section 332 of the IPC, it is undisputedposition on record that the applicant has not caused any hurt torespondent No.2 or any other Officer of the Corporation. Section 332of the IPC is clearly not made out against the applicant.8.Offences under sections 353 and 332 of the IPC arecognizable in nature. The other provisions under which FIR isregistered are sections 504 and 506 of the IPC, both of which arenon-cognizable.9.Since the prosecution has failed to make out any caseunder the cognizable sections, continuation of prosecution pursuant tothe FIR is prohibited by law. We are therefore of the opinion that FIR 73553.2023APPLN.odtand criminal prosecution against the applicant are liable to bequashed. We therefore pass the following order :-ORDER(i)The application is allowed.(ii)The offence registered against applicant - Arjun S/o AnandraoChavan with CIDCO Police Station, Aurangabad, vide CrimeNo.0306/2019, for offence punishable under Sections 353, 332, 504,506 read with Section 34 of the Indian Penal Code, so also charge-sheet No.103/2020 dated 15.05.2020 and criminal case, being RegularCriminal Case No.1126/2020 pending on the file of the learnedAdditional Chief Judicial Magistrate at Aurangabad, are herebyquashed.[ROHIT W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGEJUDGEsga/