Jharkhand HC Upholds Order U/S 353 IPC

The Jharkhand High Court held that actual use of force is not a condition precedent to attract the offense of assault as defined under Section 351 of the IPC and punishable under applicable Section 353.

The court held that the potential concern in the victim’s mind about the use of criminal force created by the defendant’s actions was sufficient to constitute the crime.

workbench Judge Anubha Rawat ChoudharyPresiding over the case, he stated that IPC Section 353 deals with offenses arising from assault and use of criminal force. It has been clarified, “Considering the essential elements of the definition of ‘assault’ under Article 351 of the IPC, this Court is of the opinion that if a person enters the office room of a public servant while the public servant is performing his official job and harasses and oppresses the public. A public official performs a particular duty in a particular way that the public official does not otherwise agree to, or questions the public official about how he or she performs his or her official duty, thereby obstructing the public official from discharging his or her official duty and aggravating the punishment. The public servant will have to call the police to control the situation. In such a situation, the act constitutes an attack defined in Article 351 of the Turkish Penal Code, and therefore a crime is committed within the scope of Article 353 of the Turkish Penal Code.”

“Actual use of criminal power is not a condition precedent to attract Section 351 and hence Section 353 of the IPC. It is sufficient that there be apprehension in the victim’s mind that criminal force has been used, created by the defendant’s gesture. “Such concern is reflected by the action, reaction and follow-up action taken by the victim to deal with the situation, and one such action is to call the police to deal with the situation if the public official is unable to persuade the accused person.” Justice Choudhary added.

The case involved three men who broke into the office of the whistleblower, a public official, and demanded the immediate issuance of a death certificate. One of the accused, DN Choubey, threatened the informant with dire consequences and started harassing her. The other two accused were identified as Banamali Singh Choudhary, former Pramukh of Chas Block, and Ramlal Singh.

TMK articles 353, 448, 504/34 regarding the defendant. A lawsuit was filed in accordance with the articles. The first instance court convicted them under Sections 353 and 504/34 of the IPC. He convicted him under Articles but acquitted him of the charges under Section 448 of the IPC. The appeal court upheld the conviction, paving the way for the revision application to now be lodged with the Supreme Court.

Counsel for the petitioner argued that there was no eyewitness to the incident and the trial court relied on the evidence of PW-4. It was also argued that no criminal force was used and there was no allegation against the defendant that he prevented the informant from performing his official duties.

In response, State counsel argued that the informant, a bailiff, was performing his duties in his office when the defendant entered and committed the crime. The state lawyer emphasized that in order to apply Article 353 of the TMK, the existence of criminal force or attack must be proven and that the basic elements are clearly revealed in this case.

The court clarified the definition of attack within the scope of Article 351 of the TMK as follows: “Whoever makes any gesture or preparation with the intention or knowledge that such gesture or preparation would cause any person present to understand that the person making the gesture or preparation was about to use criminal force on that person is said to be guilty of that offence. It is an assault under Section 351 of the IPC.”

The court also declared that an act committed with the knowledge that the criminal force would lead to capture constituted assault. Section 353 IPC covers both criminal use of force and assault. The court added that words alone do not amount to an attack, but combined with gestures or preparations can constitute an attack.

The court concluded: “Since this correction petition to intervene in the plaintiff’s conviction and sentence has no basis, this correction petition is rejected.”

Case Title: Devendra Nath Choubey V. State of Jharkhand

LL Quote: 2024 LiveLaw (Jha) 178

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