High Court
Facts
1 Cr. W.P. 1804 / 2022 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1804 OF 2022Dnyaneshwar S/o. Sopan Gite.. Petitioner Versus1] State of Maharashtra Through Police Station, Bhoom, Tq. Bhoom, Dist. Osmanabad2] Khaserao S/o Machindra Galande.. Respondents...Advocate for petitioner : Mr. K.R. Doke and Ms. S.S. RengeAPP for the respondent – State : Ms. S.S. JoshiAdvocate for respondent no. 2 : Mr. V.S. Undre... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATE : 7 MARCH 2024ORDER (MANGESH S. PATIL, J.) :By invoking the powers of this Court under section 482 ofthe Code of Criminal Procedure and Article 226 of the Constitution ofIndia, the petitioner is seeking quashment of crime no. 273 of 2022registered with Bhoom Police Station, District - Osmanabad for theoffences punishable under section 353, 352, 504, 506 of the IndianPenal Code, consequent chargesheet no. 17 of 2023 and RegularCriminal Case no. 25 of 2023 pending before the learned JudicialMagistrate First Class, Bhoom. 2 Cr. W.P. 1804 / 2022 2.We have heard both the sides finally at the stage ofadmission, with their consent. 3.The FIR was lodged by the respondent no.2 alleging thathe was serving as a Junior Engineer in the Public Works DepartmentSub Division, Bhoom under Zilla Parishad. He received a work order inthe name of one V.B. Mote for carrying out construction of a road on06-12-2021. Without intimating him, work of the road was started inFebruary 2022. Having learnt about it, he visited the spot and enquiredwith the workers there, whereupon they told him that it was thepetitioner who had asked them to start the work. The petitioner wasalso present there. When the respondent no. 2 questioned thepetitioner, he declared that he was carrying out that work. When therespondent no. 2 undertook inspection of the work being done, it wasfound to be of not desired quality. He issued instructions to thepetitioner in respect of the material to be used whereupon the petitionerretorted and threatened him if any interference was caused. Therespondent no. 2 thereafter returned to the office and submitted areport to the superior office regarding the inferior quality of the workbeing performed.4.The FIR even alleges that after about 8 days, in the monthof February 2022, when he was present in his office, the petitionerarrived and started questioning him for forwarding a false report. He 3 Cr. W.P. 1804 / 2022 also extended threats of kidnapping and again threatened him not tocause interference in the work. He also man-handled the respondentno. 2 but due to the fear, he did not lodge any complaint. 5.FIR then concludes by alleging that on 18-11-2022between 10.30 and 10.45 am, when he was present in his officetogether with one Pratiksinh Pandit Patil (Contractor) and SarfarazJafar Pathan (Junior Assistant), the respondent no. 2 received a phonefrom the petitioner. Applicant asked him as to why he was not pickingup his phone. When the respondent no. 2 tried to convince him bysaying that because of the workload, he was unable to pick up thephone, the petitioner stated that he had sustained a loss in the work tothe tune of Rs.1 Crore and also asked him as to why he (respondentno. 2) was not preparing the estimate of the entire work. After someconversation, the petitioner abused the respondent no. 2 in filthylanguage, cuss words were used and he also extended threats. Therespondent no. 2 then lodged the FIR on 21-11-2022 and the crimewas registered for the afore-mentioned offences. 6.The learned advocate for the petitioner would submit thatthere is delay in lodging the FIR. There is also delay in the twoepisodes; one in the month of February 2022 and the last telephonicconversation dated 18-11-2022. Accepting the telephonic conversationon 18-11-2022 at its face value, since it was only a telephonic 4 Cr. W.P. 1804 / 2022 conversation, there was no question of use of force much less with anintention to prevent the respondent no. 2 in discharging duties of hispublic office. The petitioner is being falsely implicated and the crimemay be quashed. 7.Per contra, the learned APP and the learned advocate forthe respondent no. 2 would submit that even the threats extendedacross the telephonic conversation would constitute force whereby thepetitioner has obstructed the respondent no.2 in discharging his publicduty. The telephonic conversation was preceded by the earlier episodeof February 2022, wherein the petitioner had man-handled therespondent no.2 by entering into his office and had extended threats.Both these circumstances cumulatively would demonstrate existence ofingredients of the offence including offence under section 353 of theIndian Penal Code. 8.We have carefully considered the rival submissions andperused the papers. 9.Sections 332 and 353 of the Indian Penal Code read asunder:-“Section 332 - Voluntarily causing hurt to deter public servantfrom his duty - Whoever voluntarily causes hurt to any person beinga public servant in the discharge of his duty as such public servant, orwith intent to prevent or deter that person or any other public servantfrom discharging his duty as such public servant, or in consequenceof anything done or attempted to be done by that person in the lawfuldischarge of his duty as such public servant, shall be punished withimprisonment of either description for a term which may extend to fiveyears, or with fine, or with both. 5 Cr. W.P. 1804 / 2022 Section 353 - Assault or criminal force to deter public servantform discharge of his duty - Whoever assaults or uses criminalforce to any person being a public servant in the execution of his dutyas such public servant, or with intent to prevent or deter that personfrom discharging his duty as such public servant, or in consequenceof anything done or attempted to be done by such person in thelawful discharge of his duty as such public servant, shall be punishedwith imprisonment of either description for a term which may extendto five years, or with fine, or with both.”10.Since using criminal force is the ingredient for constitutingthe offence punishable under section 353 of the Indian Penal Code, itis imperative that a reference is made to the definition of forcecontained in section 349 and criminal force under section 350 of theIndian Penal Code which read as under:-“Section 349 – Force - A person is said to use force to another if hecauses motion, change of motion, or cessation of motion to thatother, or if he causes to any substance such motion, or change ofmotion, or cessation of motion as brings that substance in to contactwith any part of that other's body, or with anything which that other iswearing or carrying, or with anything so situated that such contactaffects that other's sense of feeling:Provided that the person causing the motion, or change ofmotion, or cessation of motion, causes that motion, change of motion,or cessation of motion in one of the three ways hereinafter described.First.-- By his own bodily power.Secondly.-- By disposing any substance in such a manner that themotion or change or cessation of motion takes place without anyfurther act on his part, or on the part of any other person,Thirdly.-- By inducing any animal to move, to change its motion, or tocease to move.Section 350 - Criminal force - Whoever intentionally uses force toany person, without that person's consent, in order to the committingof any offence, or intending by the use of such force to cause, orknowing it to be likely that by the use of such force he will causeinjury, fear or annoyance to the person to whom the force is used,is said to use criminal force to that other.”
Legal Reasoning
6 Cr. W.P. 1804 / 2022 11.As far as the conversation dated 18-11-2022 is concerned,admittedly, even according to the prosecution, it was merely atelephonic conversation and even if it is accepted that the petitionerabused and threatened the respondent no. 2 during that telephonicconversation, ex facie, the incident would only demonstratecommission of offences of punishable under section 504 and undersection 506 of the Indian Penal Code.12.In view of the specific wording of section 353 coupled withthe definition of force under section 349 and criminal force undersection 350, such telephonic conversation and the threats and theabuses hurled therein would not constitute use of criminal force whichis the basic ingredient for constituting offence punishable under section353 of the Indian Penal Code. 13.Contemplating such a contingency, the learned APP andthe learned advocate for the respondent no. 2 tried to demonstrate thatthe incident involving telephonic conversation on 18-11-2022, was asequel to the episode which had taken place in February 2022, whereinthe petitioner had man-handled and used criminal force against therespondent no. 2 by entering into his office. Though ingenious, wecannot ignore the fact that there is a time gap of more than 9 monthsbetween these two episodes. For whatever reason, the respondent no. 7 Cr. W.P. 1804 / 2022 2 did not report the incident, which according to him had taken place inthe month of February 2022.14.Besides, though the FIR reads about such episode ofFebruary 2022, wherein the petitioner allegedly man-handled, pushedand pulled the respondent no. 2, in his statement recorded undersection 164 of the Code of Criminal Procedure, the respondent no. 2has not repeated the allegations in respect of use of criminal force inthe episode which had taken place in February 2022. He has merelystated that the petitioner entered his office and started speaking in aloud voice and threatened him of kidnapping and rushed towards him.Accepting this stand in the statement under section 164, mere rushingtowards the respondent no. 2 would not ipso facto make out use ofcriminal force. He has conspicuously omitted to state before theMagistrate about petitioner having man-handled / pushed and pulledhim. 15.In view of such peculiar state of affairs, apart from the factthat these two episodes cannot be tagged in the manner submitted bythe learned APP and the learned advocate for the respondent no.2,when the respondent no. 2, in his statement under section 164 of theCode of Criminal Procedure, has not stated about use of any criminalforce by the petitioner even in the episode which had taken place inFebruary 2022, we have no manner of doubt that the necessary 8 Cr. W.P. 1804 / 2022 concomitant for constituting the offences punishable under section 332and 353 of the Indian Penal Code, causing of hurt and use of criminalforce is conspicuously missing. It would be sheer abuse of the processof the Court to allow the prosecution to go on to the extent of section332 and 353 of the Indian Penal Code. 16.Sections 504 and 506 of the Indian Penal Code read asunder:-“Section 504 - Intentional insult with intent to provoke breach ofthe peace -- Whoever intentionally insults, and thereby givesprovocation to any person, intending or knowing it to be likely thatsuch provocation will cause him to break the public peace, or tocommit any other offence, shall be punished with imprisonment ofeither description for a term which may extend to two years, or withfine, or with both.Section 506 - Punishment for criminal intimidation -- Whoevercommits, the offence of criminal intimidation shall be punished withimprisonment of either description for a term which may extend to twoyears, or with fine, or with both;If threat be to cause death or grievous hurt, etc.-- and ifthe threat be to cause death or grievous hurt, or to cause thedestruction of any property by fire, or to cause an offence punishablewith death or imprisonment for life, or with imprisonment for a termwhich may extend to seven years, or to impute, unchastity to awoman, shall be punished with imprisonment of either description fora term which may extend to seven years, or with line, or with both.Obviously, since cuss words were used and threats were extended byusing filthy language in the telephonic conversation which had takenplace on 18-11-2022, the ingredients for constituting the offencepunishable under section 504 and 506 of the Indian Penal Code cancertainly be deduced. 9 Cr. W.P. 1804 / 2022 17.In view of above, the crime and the criminal case to theextent of section 332 and 353 of the Indian Penal Code are liable toquashed though the prosecution under section 504 and 506 of theIndian Penal Code can go on. Needless to state that the Court ofAdditional Sessions Judge may have to now transfer the trial to thejurisdictional Magistrate.18.The writ petition is partly allowed.19.Crime no. 273 of 2022 registered with Bhoom PoliceStation, District - Osmanabad, consequent chargesheet no. 17 of 2023and Regular Criminal Case no. 25 of 2023 pending before the learnedJudicial Magistrate First Class, Bhoom to the extent of offencepunishable under section 332 and 353 of the Indian Penal Code arequashed and set aside. 20.Writ petition seeking quashment of crime even to theextent of offences punishable under section 504 and 506 of the IndianPenal Code, is dismissed. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/