Amar Chand and Others vs The State

D.B. Lal, J.—This is a reference made to this Court by the Additional Sessions Judge, Dharamsala, presumably u/s 438 of the Code of Criminal Procedure, wherein he has recommended that the prosecution of the accused Amar Chand and others u/s 353 of the Indian Penal Code be quashed.

The prosecution case was no doubt couched in circumstances which prima facie appear reprehensible. One Onkar Singh who is stated to be an Inspector and as such a public officer was going by a bus from Dharamsala to Nurpur on 21-1-1969. When the bus reached Rait, the Inspector noticed that a smuggler got down and proceeded towards the shop of one Prakash Chand goldsmith. Accordingly the Inspector got down and reached the shop of Prakash Chand. The smuggler disappeared, but Prakash Chand was dealt with by the Inspector. He asked him to show the relevant record and found that he had not renewed his certificate under the Gold Control Act. A few persons including the accused Amar Chand etc. also assembled. Prakash Chand, Amar Chand who is a Patwari, and some others asked the Inspector to disclose his identity because the latter was demanding gold which was kept in the shop. However, gold ornaments weighing 73 grams were kept in a bundle and these were sealed in a small box. According to Onkar Singh, he showed his identity card. Nevertheless Amar Chand and others demanded that receipt should be given for gold which was thus to be taken away by the Inspector. However, the Inspector refused to give any receipt, and there is some evidence to indicate that he demanded bribe so that the matter might be hushed up. Upon that some struggle took place and it is stated that the accused Amar Chand patwari and others assaulted the Inspector and made him fall on the ground so that his pant also got torn. The patwari Amar Chand immediately wrote a report for his superior officer that he had detected a crime committed by the Inspector whom he bona fidely believed to be an imposter. These were the short grounds on which a case u/s 353, Indian Penal Code, was instituted against Amar Chand and others. It was, however, found ultimately that Onkar Singh was really a public servant.

The learned Magistrate convicted and sentenced the accused u/s 353, Indian Penal Code. But curiously enough he did not award any substantial sentence. Rather he fined each of them in a sum of Rs. 50/-. This will show that the learned Magistrate was not himself sure of the position because otherwise he would have convicted and sentenced these accused in a substantial manner had he been convinced that a public servant was assaulted or beaten in the manner alleged by the prosecution.

The accused filed a revision in the Court of the Sessions Judge because the order made was not appealable. The learned Additional Sessions Judge considered the prosecution case, and held that certain important aspects in the case were overlooked and no offence was made out u/s 353, Indian Penal Code. Accordingly he has recommended for the acquittal of the accused.

It is abundantly clear that the Inspector was without any uniform. He was not accompanied by any of his staff. As such by appearance nothing could be detected if he was really a public servant. That apart, the learned Additional Sessions Judge rightly held that perhaps the identity card was not available at that time and it was not shown to the accused. In fact the identity card was recovered on 23-1-1969 when the occurrence is of 21-1-1969. The most significant feature is that a receipt was demanded by the accused, but the Inspector refused to give any such receipt. He could have at any rate satisfied them by telling that they could accompany him upto the Police Station and a due receipt would be prepared and given to them at that place. The abrupt refusal to give receipt naturally gave rise to an apprehension in the mind of the accused and they thought that the person was really an imposter and not a public servant. The patwari in his bona fide did send a report to his superior officer although he was also required to have sent a report to the Police Station.

In order to bring home the offence u/s 353, mens rea for criminal force and assault was required to be proved, knowing that the person against whom criminal force and assault were inflicted was a public servant and was performing his public duty as such. The circumstances rather indicated that the accused did not know that the person concerned was really a public servant. Thus they had no intention to use criminal force or assault against a public servant who was performing his public duty as such. Thus the main ingredient u/s 353, Indian Penal Code, was not made out. At any rate, there was an element of reasonable doubt, and it is abundantly clear that the learned Magistrate failed to notice certain important features in the case. No doubt the purpose of a criminal revision is, that justice is done in accordance with the recognised rules of criminal jurisprudence. If the prosecution fails to discharge its burden and certain admitted facts were not taken care of which decidedly raised a reasonable apprehension as to the commission of the guilt, interference in revision may be held to be justified. Thus, I do not find any difficulty in accepting the recommendation of the learned Additional Sessions Judge.

The conviction and sentence of the Petitioner accused u/s 353, Indian Penal Code, are thus set aside.