Offence against public servant

CRCL 602(Indian Penal code: specific provision)

Assignment submitted to Dr. Sachin Rastogi

Amity Institute of Advanced Legal Studies

Amity University Uttar Pradesh

In Part Fulfilment of Requirements for the Degree of

Master of Laws (LLM)

Submitted by:
Aishwarya Sudhir
A03104520039
LLM (Crim.L (2020-2021)
 Introduction
The Offence related to use of criminal force or assault against the public servant to deter them
from discharge of their duty covers under Section 353 of Indian Penal Code, 1860. This section
states that, “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
discharging his duty as such public servant, or in consequence of anything done or attempted to
be done by such person in the lawful discharge of his duty as such public servant, shall be
punished with imprisonment of either description for a term which may extend to two years, or
with fine, or with both”.1 To attract this section there must be assault or use of criminal force,
Such assault or use of criminal force must have been made on a public servant, while he was
acting in the execution of his duty, with intent to prevent or deter him from discharging his duty,
in consequence of anything done or attempted to be done by him in the discharge of duty. The
offence under section 353 is cognizable, bailable and non-compoundable, and is triable by any
magistrate. Section 353 to 357, IPC provide for severe punishment in case of aggravated form of
assault or use of criminal force.2

Basically, assault itself is an intentional act to harm another or create a fear that one will be
seriously harmed. Therefore, you can be charged with assault without actually harming the
victim, but only threatening to do so. If a person has a legitimate reason to fear for their safety,
and there is an imminent bodily harm risk to them, the person threatening may be arrested and
charged with assault. Police officers are allowed to intervene and arrest a person for assault who
has not actually touched the victim.3 However, Section 353 comes within the purview of
aggravated assault which is always charged as a felony, and it may involve a weapon or just the
intent to commit a more serious offense against another person, such as sexual assault.
Aggravated assault can also include serious bodily harm to the victim, and it depends on how
each state classifies aggravated assault specifically.4 Aggravated assault is an attempt to cause
serious bodily harm to an individual with disregard for human life. Factors that raise an assault to
the aggravated level typically include the use of a weapon, the status of the victim, the intent of
1
Indian Penal Code § 353 (1860).
2
K. D. Gaur, Indian Penal Code 840 (6th ed., 2016).
3
JACK MKHITARIAN, WHAT IS ASSAULT?, What Is the Difference between Assault and Aggravated Assault?
(Nov. 25, 2020, 2:11 PM), https://newmexicocriminallaw.com/what-is-the-difference-between-assault-and-
aggravated-assault/.
4
Ibid

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the perpetrator, and the degree of injury caused. As per the Section 353 of IPC, There must be an
assault or use of criminal force to a public servant either in the execution of his duties in that
capacity, or with the intention to prevent or deter him from discharging his duty in that capacity,
or in consequence of anything done or attempted to be done by him in the lawful discharge of his
duty in that capacity.5

In Virendra Sharma v. State,6 the petitioner sprinkled black paint on the face of commissioner of
municipal corporation while he was in office and used abusive language against him. The Delhi
High Court held that such act of humiliation done intentionally is sufficient to obstruct duty of a
public servant and thus his conviction under section 353 was proper. Cognizance in this case was
taken when a written complaint was filed by the public servant under section 195, Code of
Criminal Procedure, 1973 and, therefore, it was not necessary for the complainant to be present
when the F.I.R. was registered.

Moreover, for invocation of section 353 of IPC a victim should be a public servant, discharging
his official duties. Whoever intents to prevent or deter a public servant from discharging his
duties, then this section will be applicable. Any kind of injury or actual hurt is not necessary
under this section. In case of Devisingh vs State of M.P.7, the wife of the accused was being
taken to police station in execution of search warrant accompanied by a constable. The accused
attacked his wife and also the police constable. The Hon’ble Court expressed that the conviction
of the accused under section 353 was held to be proper, though no injury as such was caused to
the constable. Thus, the court held that actual causing of injury is not necessary for conviction
under section 353.

Novice steps taken by Maharashtra Government

Maharashtra Government had taken a novice step regarding Section 353 of IPC with respect to
cases of assault on public servants, stopping them from discharging duty. The state government
issued a gazette notification on June 7 bringing into force the amendment to the Indian Penal
Code and the Indian Penal Code and the Code of Criminal Procedure (Maharashtra Amendment)
Act, 2017, in its application to the state. The Bill amended Section 332 (voluntary causing hurt to
5
Pinki Sarkar, Assault or criminal force to deter public servant from discharge of his duty, (Nov. 25, 2020, 2:33
PM), https://www.shareyouressays.com/knowledge/section-353-of-indian-penal-code-1860-explained/118725.
6
2005 CriLJ 2644
7
1993Cr.L.J.1301

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deter public servant from his duty) and Section 353 (assault or use of criminal force to deter a
public servant from discharging duty) allowing for a five-year punishment or fine or both instead
of two years. Under both the sections, the offence is cognizable and non-bailable. 8 While 138
cases were registered under Section 353 of Indian Penal Code (IPC) in 2017, 161 such cases
were registered in 2018. Maharashtra police department is doing its best to enforce traffic rules,
the cases related to assault of public on government servants have been on the rise. 9 Due to this
amendment, the pending matters whose trial is half way and almost towards the end, would be
compulsorily transferred to the Sessions court.

1. Relevant Legal decision

Akhilesh Kumar & Ors vs The State of Bihar on 23 August, 2017

Parties:

Appellants

1. Akhilesh Kumar
2. Navlesh Kumar
3. Pawan Kumar All Sons of Late Ram Naresh Singh Resident of Village-Ark Dhibariya, P.S-
Tekari,Distt.-Gaya.

Respondents

The State of Bihar

Brief of Facts:

The appellants of this case Akhilesh Kumar, Navlesh Kumar and Pawan Kumar have been found
guilty for an offence punishable under Section 353 of the IPC and each one has been sentenced
to undergo R.I. for two years vide judgment of conviction and sentence dated 17.12.2014 passed
by Additional Sessions Judge, VIth, Gaya in Sessions Trial No.78 of 2014 / 495 of 2004. Anand

8
Saurabh, 5-year jail for assault on public servant (Nov. 26, 2020, 7:05 AM),
https://timesofindia.indiatimes.com/city/mumbai/5-yr-jail-for-assault-on-public-servant/articleshow/64579539.cms.
9
Nadeem Inamdar, Section 353 in focus: Cases of assault on public servants, stopping them from discharging duty
on the rise in Pune, Hindustan Times, Mar 18, 2019, 16:34 IST.

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Mohan Srivastava, an Amin, filed written report on 18.09.2002 at 06:00 PM alleging inter alia
that he happens to be posted as Anchal Amin at Anchal Office, Tekari. Today i.e. 18.09.2002.
He accompanied the C.O., Nagendra Prasad Sinha (PW.3) armed police personnel, police official
of Tekari P.S. to remove encroachment in pursuance of order having been passed by the SDM,
Tekari in Encroachment Case No.7/99-2000. They reached at the place of occurrence at 03:00
PM. C.O. Patna High Court CR. APP (SJ) No.17 of 2015 dt.23-08-2017 had directed Akhilesh
Kumar, Navlesh Kumar and Pawan Kumar to remove encroachment as he was directed by the
SDM to remove the encroachment but, none of the encroachers were ready to pay heed, on the
other hand they began to abuse as well as threatened of dire consequence. During midst thereof,
C.O. had directed him to measure the land in order to ascertain actual area of encroachment
whereupon, the encroachers have said that in case of any activity at his end will cost his life.
They have also threatened that C.O. as well as police personnel will also be murdered. Anyhow,
he proceeded in terms of order given by the C.O. whereupon, Navlesh Kumar and Pawan Kumar
snatched away chain from his hand and threw it. They caught hold him, threw on the ground and
began to throttle. Akhilesh Kumar pelted stone on others. Anyhow, he was rescued by the police
personnel otherwise he might have been murdered. Then, thereafter on an order of C.O. Akhilesh
Kumar, Navlesh Kumar and Pawan Kumar were apprehended.

Furthermore, on the basis of the aforesaid written report, Tekari P.S. Case No.160/2002 was
registered followed with an investigation which ultimately concluded by way of filing of charge
sheet against all the accused under Section 323,341,337, 307, 353, 504, 34 of the IPC and being
the offences exclusively triable by the court of Session, paved way for trial before the court of
Sessions on commitment which ultimately concluded having verdict of guilt as well as sentence,
subject matter of instant appeal.

The defence case, as is evident from mode of cross- examination as well as statement recorded
under Section 313 of the Cr.P.C. is that of complete denial. It has also been pleaded that there
was Patna High Court CR. APP (SJ) No.17 of 2015 dt.23-08-2017 3 no order of SDM, in its
operation as, the same was under challenge under Encroachment Appeal No.80/2002 and to
substantiate the same relevant order sheets have been exhibited as Ext.A, A/1, A/2. However, no
DW has been adduced. In order to substantiate its case, prosecution had examined altogether five
PWs namely PW.1 Ram Udai Sharma, PW.2 Rajesh Kumar, PW.3 Nagendra Kumar Sinha,

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PW.4 Ranjan Prasad and PW.5 Anand Mohan Srivastava, informant as well as had also exhibited
written report, as Ext.1.

Discussion and Decision:

From the discussion of the fact the conviction has been recorded with regard to offence which is
punishable under Section 353 of the IPC on account thereof, there should be a glimpse over
Section 353 of the IPC which reads follows:

"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 discharging
his duty as such public servant, or in consequence of anything done or attempted to be done
by such person to the lawful discharge of his duty as such public servant, shall be punished
with imprisonment of either description for a term which may extend to two years, or with
fine, or with both."

Moreover, from the plain reading of the section, the following ingredients are found necessary to
constitute the offence.

a) There should be assault or use of criminal force.

b) Such force could have been applied on public servants.
c) The aforesaid exercise must be while the public servant was acting in execution of his
duty or with intent to prevent or deter him from discharging his duty.
d) In consequence of anything done or attempted to be done by the public servant in due
discharge of the duty.

Now the evidence on record has to be seen whether the ingredients of the Section as classified
herein above is found properly substantiated. In the instant case none of the police officials
including the I.O. has been examined and that being so, the P.O. is not at all properly
substantiated in the background of ambiguous nature of evidence having at the end of the C.O.
PW.3 as well as the informant PW.5. None of them have disclosed that with regard to which land
more particularly specifying by Khata number, Khesra number, boundary, they were directed by
the SDM, Tekari to measure, to ascertain the extent of encroachment and to remove the
encroachment. The aforesaid eventuality is found deficient one at the end of the prosecution in

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the background of the fact that no copy of the order has been made an Ext. which could have
exposed that there was an order directing the C.O. to get the encroachment properly identified as
well as to remove the same therefrom. That means to say in spite of having identification of
PW.3 as well as PW.5 to be public servant in terms of Section 21 of the Indian Penal Code,
whether on the alleged date and time Patna High Court CR. APP (SJ) No.17 of 2015 dt.23-08-
2017 5 of occurrence they were discharging their duty at the place of occurrence in pursuance of
an order having been passed by the SDM, Tekari which could have only by way of having the
aforesaid order an Ext. of the record. That means to say, mere presence of PW.3 as well as PW.5
at the place of occurrence which too is found uncertain, it would not be presumed that their
presence happens to be in due discharge of public duty. So far remaining witnesses are
concerned that means to say PW.1 Ram Udai Sharma, PW.2 Rajesh Kumar, it is evident from
their evidence that they are on inimical term being on logger’s head since before with the father
of appellants, namely, Ram Naresh. So far status of PW.4 is concerned, he half-heartedly
supported the case of the prosecution as a result of which, was declared, hostile.

Order:

The Court after giving anxious consideration over the evidence available on the record, stated
that the Court found that the prosecution happens to be porous one whereupon, the finding
recorded by the learned lower court did not survive. Accordingly, same is set aside. Appeal is
allowed. Appellants are on bail hence are discharged from its liabilities.

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2. Conclusion

The section 353 of Indian Penal Code, 1860 clearly states 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 such public servant. Therefore, the main
ingredients of the offence are that the accused should be shown to have assaulted the public
servant or used criminal force. The Court is very concern about this section so that any
magistrate can entertain the cases of assault or criminal force to deter public servant from
discharge of his duty. The Indian Penal Code has stated that the punishment with imprisonment
of either description for a term which may extend to two years, or with fine, or with both. Being
a cognizable, bailable and non-compoundable offence, it is triable by any magistrate. Apart from
that the steps taken by Maharashtra Government is appreciable as it has introduced a bill with
new amendment, which states that Section 353 (assault or use of criminal force to deter a public
servant from discharging duty) allowing for a five-year punishment or fine or both instead of two
years. This step should be adopted by every state so that the assault or criminal force to deter
public servant from discharge of his duty, will surely be decreased.

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 Bibliography
 Books
 K. D. Gaur, Indian Penal Code (6th ed., 2016).

 Websites
 JACK MKHITARIAN, WHAT IS ASSAULT?, What Is the Difference between Assault
and Aggravated Assault? (Nov. 16, 2020, 2:11 PM),
https://newmexicocriminallaw.com/what-is-the-difference-between-assault-and-
aggravated-assault/.
 Pinki Sarkar, Assault or criminal force to deter public servant from discharge of his duty,
(Nov. 16, 2020, 2:33 PM), https://www.shareyouressays.com/knowledge/section-353-of-
indian-penal-code-1860-explained/118725.

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