Braja Kishore Mangaraj vs State of Orissa

G.B. Patnaik, J.—Accused in G.R. Case No. 158/84 in the Court of the Sub-Divisional Judicial Magistrate, Khurda is the Petitioner

invoking inherent jurisdiction of this Court for quashing the order of cognisance dated 20th June, 1984 taking cognisance under Sections 353 and

I.P.C. The Process Server by name. Gadadhar Misra has been to village Lendu to serve a summon on the Petitioner in, Complaint case No.

I.P.C. 142/83 wherein the Petitioner was, an accused. It was reported by the said process serve that as the Petitioner refused to receive the

summons, he hung the same on the wall of the Petitioner. The Petitioner thereafter filed an affidavit on 10.2-1984 against the said process server

that his report was completely false and concocted. The said process server made an application to the District Judge, alleging therein that on 12-

2-1984 at 3.30 p.m., while he was returning to Court after serving summons, the Petitioner met him near Khurda State Bank Chhak and rebuked

him in obscene, language in presence of two persons. The District Judge sent that application to the Sub-Divisional Judicial Magistrate who in turn

forwarded the same to the Officer-in-charge, Khurda Police Station to treat it as an F.I.R. and take necessary action. Subsequently Gadadhar

Misra also gave a written report at Khurda Police Station. The Officer-in-charge, Khurda Police Station registered as case and started

investigation. In course of investigation, statements of the two witnesses were recorded and on completion of investigation, charge sheet was filed

on 11-5-1984 against the Petitioner under Sections 353 and 506, I.P.C. On, the basis of the said charge-sheet and on perusal of the supporting

materials, the Sub-Divisional Judicial Magistrate having been cognisance u/s 353 and 506. I.P.C. against the Petitioner, the present application has

been filed for quashing the same.

Mr. Patnaik, the learned Counsel for the Petitioner contends that the averments made in the application of Gadadhar Misra which has been

treated as F.I.R. in the case together with the statements of the witnesses recorded by the police u/s 161, Code of Criminal Procedure during the

investigation do not constitute the offence for which cognisance has been taken and, therefore, the said order of cognisance must be quashed.

The short question for consideration, therefore, is whether the allegations in the F.I.R. as welt as the statements of witnesses recorded by the

police during investigation constitute the offence in question or not. It has been alleged in the F.I.R. that on 12-2-1984 at 3.30 p.m. the accused

met the informant near the State Bank Chhak and started quarreling and abused him in obscene language and threatened that be would see the

informant within 10 or 12 days. By such, words and conduct of the accused, the informant was terrified and lost his prestige and reputation. The

accused terrified and lost his prestige and reputation. The accused is alleged to have stated so in presence of Sashibhusan Patnaik of Khurda and

Raghunath Patnaik of Baniatangi. The 161, Code of Criminal Procedure statement of those two witnesses are to the effect that while the process

server Gadadhar Misra was on his uniform, accused Braja Kishore stopped him on the road and enquired from his as to way he has given a false

report against him. So saying the said accused Braja Kishore threatened him with dire consequence, abused him in filthy languages and said that he

would take his job. As several others were present they a 11 told the accused Dot to humiliate the process server in that manner on the road

whereafter the accused left towards Khurda. The informant Gadadhar Misra in his statement u/s 161, Code of Criminal Procedure fully

corroborated the statements in the F.I.R.. It is now to be seen whether an offence u/s 353 as well as 506, I.P.C. can be stated to have been prima

facie established justifying, the Magistrate taking cognisance of the two offences.

Section 353 of the Indian Penal Code deals with the offence of assault or use of criminal force to a public servant in 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. ''Assault'' has been defined in

Section 331 and ''Criminal force'' has been defined in Sections 349 and 350, I.P.C. The necessary ingredients to attract Section 353, I.P.C. are:

(i) Assault or use of criminal force to a person being a public servant;

(ii) such public servant must have been in execution of his duty as such public servant: or

(iii) use of criminal force or assault with intent to prevent or deter the person from discharging his duty as a public servant.

In fact the process server would be a public servant but at the point of time when the occurrence took place he was not in lawful discharge of any

of his duties and, therefore, one of the ingredients to attract Section 353. I.P.C. has not been satisfied. Consequently the offence cannot be one u/s

353, I.P.C. Even if it may not be an offence within the ambit of Section 353, I.P.C. but yet it would be seen whether if at all it attracts Section 352.

I.P.C. which in turn has to be determined whether on the allegations, it can be said that the accused did use any criminal force within the meaning

of Section 350, I.P.C. or did assault within the meaning of Section 351, I.P.C. A person is said to use force to another if he causes motion, change

of motion, or cessation of motion to that of the other Whenever force is used intentionally to any person, without that person''s consent, in order to

the committing of any offence or intending by the use of such force to cause) or knowing it to be likely that by the use of such force be will cause

injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that of the other. A person is said to have

committed an assault when he makes any gesture or preparation intending or knowing it to be likely that such gesture or preparation will cause any

person present to apprehend that be who makes that gesture or preparation is about to use criminal force to that person, is said to commit an

assault. Whether a particular act amounts to assault or not depends upon the circumstances of each particular case. The very act may not amount

to an assault in one case but the same when taken along with other surrounding circumstances may amount n assault in other case. Examining the

materials on record, III the present case, I would therefore, bold that though the offence u/s 353, I.P.C. is not prima facie established, but it cannot

be said that the offence u/s 352, I.P.C. has not been established, since the accused did use criminal force to the process serve Gadadhar Misra

and the same was not grave and sudden provocation. Consequently the order of cognisance u/s 353, I.P.C. may be appropriately amended to one

u/s 352. I.P.C.

So far as the offence u/s 506, I.P.C. is concerned, it is required to be found out whether there was an, threat or injury to person''s reputation or

property of any person and the intention to cause alarm to that person. If an accused tells the complainant or the informant that he would be beaten

and then alone he would vacate the house in which be was living, an offence u/s 506, I.P.C. may be held to have been established. The materials

on record in the present case clearly reveal that the accused-Petitioner on a public road did abuse and threaten the process server Gadadhar Misra

to the effect that he will meet with dire consequences for the alleged false report given by him and the process server will lose his service so much

so that the process server was very much terrified and reported the matter to the District Judge. In this, view of the matter I am unable to persuade

myself to agree with the submission made by the learned Counsel for the Petitioner that prima facie the offence u/s 506, I.P.C. IS not made out. It

is too well settled that at the stage of taking cognisance, an order of cognisance can be quashed by this Court only if the materials taken in entirety

on face value do not constitute the offence for which the cognisance has been taken. The Supreme Court has all along used the word of caution

that inherent jurisdiction should be sparingly used only when the Court would be of the opinion chat there has been gross abuse of process of

Court or there has been gross miscarriage of justice. In view of my conclusion arrived at earlier on the materials on record. I do not think that this

is a fit case to quash the order of cognisance subject to what has been stated earlier with regard to the offence u/s 353, I.P.C.

In the net result, therefore, I do not find any merit in this application which is accordingly dismissed.

The Lower Court records be sent back immediately.

Misc. case dismissed.