# `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
## `PRESENT`
## `THE HONOURABLE MR. JUSTICE GOPINATH P.`
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THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
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## `CRL.MC NO. 4108 OF 2020`
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TO QUASH ANNEXURE A2 FINAL REPORT AND ALL FURTHER PROCEEDINGS IN
CC 872/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM
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## `PETITIONERS/ACCUSED 1 & 2:`
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1MURALEEDHARAN AGED 50 YEARS S/O. KRISHNANKUTTY,
RARATHODY HOUSE, P. O. MANISSERI, OTTAPALAM TALUK, NOW
RESIDING AT NO.T1, VAVOO MATHOR APARTMENTS, ST. THOMAS
ROAD, SREENIVASAGAM NAGAR, MAHARAJANAGAR,
PALAYAMKOTTAI, THIRUNELVELI, TAMILNADU.
2AIYSHA BEEVI W/O. MURALEEDHARAN, RARATHODY HOUSE, P.
O. MANISSERI, OTTAPALAM TALUK, NOW RESIDING AT NO.T1,
VAVOO MATHOR APARTMENTS, ST. THOMAS ROAD,
SREENIVASAGAM NAGAR, MAHARAJANAGAR, PALAYAMKOTTAI,
THIRUNELVELI, TAMILNADU.
BY ADV P.JAYARAM
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## `RESPONDENT/STATE:`
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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
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SRI NOUSHAD K..A (SR PP)
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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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## **ORDER**
Petitioners are accused Nos.1 and 2 in Crime No.509 of 2018 of Ottapalam Police Station alleging commission of offences under Sections 294(b) and 53 r/w Section 34 of the IPC. The allegation is that being aggrieved by the non acceptance of basic tax in respect of certain land, the petitioners verbally abused the Village Officer, Vaniyamkulam-II Village, by using obscene words and also obstructed the discharge of official duty by the Village Officer and thereby they committed offences alleged against them.
2. Learned counsel appearing for the petitioners would submit that the petitioners are absolutely innocent in the matter. It is submitted that even if all the allegations in the complaint of the Village Officer are accepted to be true, no offence is made out as against the petitioners. It is submitted
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that a reading of the FIS will show that the offence under Section 294(b) of the IPC is not attracted. It is submitted that in order to attract the offence under Section 294(b), the complaint must indicate the exact nature of obscene words used by the accused. Reliance is placed in this regard on the judgments of this Court in **Preethimon v. State of Kerala** [2008 (2) KLT 666] and **James Jose v. State of Kerala** [2019 (3) KLT 415]. It is submitted that the offence under Section 353 of the IPC is also not attracted in the light of the law laid down by this Court in **Hariprasad v. State of Kerala** [2017 (2) KLT SN 12 (C.No.16)].
3. The learned Public Prosecutor refers to the contents of the FIS of the Village Officer as also to the final report to contend that the question as to whether the offences alleged against the petitioners have been committed or not have to be determined in trial and not in a petition under Section 482 Cr.P.C.
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4. Having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that the petitioners are entitled to succeed. A reading of the FIS forming part of Annexure A1 FIR as also Annexure A2 final report will indicate that the exact nature of the obscene words stated to have been used by the petitioners is not mentioned either in the FIS or in the final report. Therefore, going by the law laid down by this Court in **Preethimon (Supra)** and **James Jose (Supra)** , an offence under Section 294(b) of the IPC cannot be said to be attracted. Coming to the offence under Section 353 of the IPC, the only allegation in FIS forming part of Annexure A1 FIR and in the final report is that the petitioners had pulled chairs and placed them in such a manner that would obstruct the movement of the Village Officer. This by itself is not an offence under Section 353 of the IPC. In **Hariprasad (Supra)** it is held as follows:
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“7. The question relevant for consideration in the context is whether restraint of an official would amount to an offence under Section 353 I.P.C. In this connection, it is apposite to extract Section 353 I.P.C. hereunder, which reads:-
" _**353.**_ Assault or criminal force to deter public servant from discharge of his duty.--
Whoever assaults or uses criminal force to any person being a public servant in the 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, or in consequence of anything done or attempted to done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.
8. Section 353 contemplates the pre-requirements as follows for the offence to be attracted:-
i. Assault or criminal force must be there.
ii.The person against whom assault or criminal force is alleged must be a public servant.
iii. The public servant was in the lawful execution of his duty as a public servant.
iv. The assault or criminal force must be exercised with intention to prevent or deter the public servant from discharging his duty.
v. The use of criminal force must be intentional.
vi. The use of criminal force must be without the
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## consent of the person.
vii. By the use of criminal force, motion, change of motion or cessation of motion of the public servant must have been caused.
viii. Use of criminal force must be with intention to cause or with knowledge that the same is likely to cause injury, fear or annoyance to the person to whom it is used.
9. Therefore, it follows that the above mentioned ingredients are to be established for an offence under Section 353 to be attracted. An analysis of the factual matrix is relevant in the context to see whether the ingredients could be made out from the allegations contained in the materials appended with the application. There cannot be any doubt with respect to the fact that the defacto complainant and his fellowmen are public servants and they were engaged at the relevant time in the lawful discharge of their duty as such to address the situation likely to create law and order problems. Obstruction caused by the petitioners by parking the vehicle on the road and unloading goods therefrom, if was not restrained, there was every chance for the vehicular traffic through the road to be disturbed and that would lead to law and order problems. Therefore, undoubtedly, the defacto complainant and his fellowmen intervened to remove the obstruction. In that event, the petitioners restrained the officials from discharging their duties by exercising assault
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or exerting criminal force on them. It is not disclosed from the allegation that the petitioners made any gesture or any preparation intending or knowing it to be likely that their deeds would create an apprehension to the party to whom those were made, that criminal force would be used against them. It is also manifestly clear from the allegation that the petitioners did not use any force on the officials intentionally or knowing it to be likely that such force would cause injury, fear or annoyance to them.”
Reading of the FIS and final report does not suggest that any of the ingredients required to constitute offence under Section 353 of the IPC has been committed by the petitioners.
Therefore, this Crl.M.C. is allowed and all further proceedings against the petitioners in C.C.No.872 of 2018 on the file of the Judicial First Class Magistrate Court-Ottappalam will stand quashed.
**Sd/GOPINATH P. JUDGE**
SSK/19/10
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## `APPENDIX OF CRL.MC 4108/2020`
## `PETITIONER ANNEXURES`
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ANNEXURECERTIFIED COPY OF THE FIRST INFORMATION REPORT AND
A1THE COMPLAINT IN CRIME NO.509/2018, OTTAPALAM
POLICE STATION.
ANNEXURECERTIFIED COPY OF THE FINAL REPORT IN CRIME
A2NO.509/2018, OTTAPALAM POLICE STATION/CC
NO.872/2018 ON THE FILES OF JUDICIAL 1ST CLASS
MAGISTRATE, OTTAPALAM.
TRUE COPY
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## `P.A. TO JUDGE`
