Document Fragment View

Matching Fragments

26.Section 353 IPC prescribes punishment for voluntarily causing assault or criminal force to deter a public servant from discharging of his duty. The essential ingredients to constitute an offence under this Section are:-

1. Voluntarily causing assault or criminal force to any person being a public servant in discharge of his duty as such public servant.
2. There should be an intention to prevent that person or any other public servant from discharging his duty.

28.It has been argued by Ld. APP for State that the failure to prove the complaint U/s 195 Cr.P.C would only vitiate trial in respect of offence punishable U/s 186 IPC, and it would not affect the trial in respect of offence U/s 332 & 353 IPC as no formal complaint U/s 195 Cr.P.C is required for taking cognizance for offences punishable under these sections.

29.It was held by the Hon'ble Supreme Court in a three judges bench in a case titled "Durgacharan Naik And Ors vs State Of Orissa",1966 AIR 1775, wherein it was held:-

"It is true that most of the allegations in this case upon which the charge under Section 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that section 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is State v. Harphool Singh etc. U/s 186/353/332/34 IPC FIR No. 412/98 PS Paschim Vihar 16/23 not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempt of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section."

30. The above stated principle of law was reiterated by Hon'ble Supreme court in "Pankaj Aggarwal VS. State of Delhi", LAWS(SC)-2001-3-49, wherein it was held:-

"In view of the judgment of this Court in AIR 1966 SC 1775 where the court has analysed the provisions of Section 353,Indian Penal Code and 186,Indian Penal Code and held that the two are distinct offences and the quality of the offence is also different, we are of the opinion that judgment of the Punjab High Court is not correct in State v. Harphool Singh etc. U/s 186/353/332/34 IPC FIR No. 412/98 PS Paschim Vihar 17/23 law and has taken a view contrary to the law laid down by this Court. What has been stated earlier in the aforesaid case in relation to the provisions of Section 353,Indian Penal Code would equally apply to the provisions of Section 332 of the Indian Penal Code."