ASHOK KUMAR Vs. STATE

JUDGEMENT

(1.) THIS petition has been filed under Sec. 482 of Crl. P. C. to quash the proceedings in C. C. No. 3374 of 1990 pending on the file of the learned II Metropolitan Magistrate, Egmore, Madras . The Inspector of Police, Periamet police station has filed the complaint against these petitioners for the offences under Secs. 451, 506, Part 2 and 353 of I. P. C. alleging that on 24. 2. 1990, around 11 a. m. these petitioners came to the office of the Commissioner of Corporation in respect of the removal of the gates in their private lane, that as there was some altercation, the complainant who is the Vigilance Security Personnel, asked the petitioners to disburse from the premises, but, they shouted that they would not leave the place and scolded the complainant and also threatened and pushed him down preventing him from discharging his duty. Learned counsel for the petitioner mr. Karpaga Vinayagam submitted two-fold arguments on this complaint. According to him, Secs. 451 and 506, Part I are not attracted for the reason that these petitioners went to the Commissioner of Corporation to ventilate their grievance as the gate fixed in the private pathway was removed by some corporation Officer and further Corporation of Madras being a public office cannot be treated as a dwelling house and therefore Sec. 451 is not attracted. He further submits that the version in the complaint that these petitioners threatened and pushed aside the complainant will not amount to criminal intimidation and Sec. 506, Part II, I. P. C. also is not attracted. Learned government Advocate (Crl. Side) concedes that these two sections are not attracted for the reasons explained by the learned counsel for the petitioners and the prosecution cannot be allowed to proceed for offence under Secs. 451 and 506, Part I of I. P. C. As the Government Advocate has fairly conceded this point, the complaint under Secs. 451 and 506, Part I, I. P. C. has to be quashed.

(2.) THE second argument is with regard to the maintainability of the complaint under Sec. 353, I. P. C, by the police. As there is a bar under Sec. 195, Crl. P. C. to receive the complaint for such offence unless the complainant is the public servant himself, the learned counsel for the petitioners Mr. Karpaga Vinayagam argues that under Sec. 186, I. P. C. the ingredients are the obstruction voluntarily against the public servant in discharge of his public functions and in Sec. 353 also except the use of criminal force, the other ingredients are same, and when the basic offence of obstructing the public servant is made out, the bar under Sec. 195 is applicable for such offence also. So according to him, unless the complaint was filed by the public servant himself the court cannot take cognizance and in this case as the police officer has filed the complaint in the court, the complaint is not maintainable. He placed support from the decision of the Patna high Court reported in Janaki Prasad v. State of Bihar, 1975 Crl. L. J. 575, in which case also the accused was prosecuted for the offence under Secs. 323, 324 and 353, I. P. C. and the Patna High Court took the view that as the primary offence of obstructing public servant is also made out, though the accused was charged for Sec. 353, I. P. C. the requirements of Sec. 195, Crl. P. C. cannot be circumvented by filing the complaint by a police officer. By a reading of Secs. 186 and 353, I. P. C. I am able to see that these two sections deal with two distinct offences. Even though obstruction against public servant is one of the ingredients in both the sections. Sec. 353 is not only an aggravated form, but also it deals with the criminal force on account of which the obstruction is caused. Under Sec. 186 voluntary obstruction against a public servant in discharge of his public function attracts the punishment and the word voluntary is consciously used because one should have the intention of obstructing the public servant from discharging his duties. (So voluntary obstruction simpliciter is the requirement of this section to prevent the discharge of duty of a public servant. On the other hand, under Sec. 353 an assault or criminal force affecting human body is the main ingredient to the section and by using such assault or criminal force, the obstruction to discharge the duty of the public servant, is the consequential event. As rightly contended by the learned government Advocate (Crl. Side), Sec. 186 requires a voluntary obstruction for the discharge of duty, whereas Sec. 353 requires voluntary assault or criminal force affecting the human body, the consequence of which may deter the discharge of his duty. THErefore, there is marked difference between these two sections, though the obstruction is one of the ingredients in both the sections.