Case Name – Amer Khan v. State of Maharashtra and Others

Facts Of the Case 

• Appellant Amer Khan, claiming the ownership of property bearing CTS No. 11583, supported with a property card and a civil court injunction.
• On 16th July 2019, officials from the Municipal Corporation, including Respondent No. 2, arrived at the site to remove alleged encroachments near Salim Ali Lake, Aurangabad as per Suo Moto PIL filed in the High Court.
• Respondent No.2 accused Amer Khan and his relative Navid Shaikh of abusing, threatening, and rushing towards him, allegedly constituting assault under Section 351 IPC.
• Amer Khan argued that the demolition was illegal as there was no specific High Court order in support of this, and thus no prima facie case exists against him.
• An FIR was filed by Respondent No. 2 against Amer Khan under Sections 353, 504, 506 IPC.

Issues of The Case

• Whether the demolition of property was lawful?
• Whether appellant’s conduct amount to an offence under section 353?
• Whether FIR filed was malicious and unlawful? 

Judgment: 

After thorough interpretation of statutory requirements of sections 349, 350, 351 and 353 IPC to determine whether the petitioner’s conduct met their criteria, Court had laid down these in the following judgement:

1. Court observed that after the plain reading of Section 353 IPC, one can understand that it requires a public servant discharging his duties being lawful in nature. In addition to this, use of criminal force or assault against the public servant in order to deter him from discharging his lawful duties is also must.
2. Further, Court explained that “force” under section 349 means to cause motion, change of motion or stopping motion by his own bodily power, an object, or an animal. 
3. “Criminal force” as defined under section 350 of IPC refers to intentional use of force without consent, knowing it’s likely to cause injury, fear, or annoyance.
4. According to the facts given in FIR, there is no said allegation that appellant has caused any motion, change of motion or cessation of motion with the use of bodily power.

Thus, it can be said that no force has been used by the appellant to respondent no.2 and hence subsequently no question of criminal force arises.

5. Upon this, learned APP stressed upon the application of section 351 that is causing “assault” against the act of rushing on the person of respondent no.2 by appellant.
6. As per the definition of assault given under section 351 IPC, it requires gestures or preparations knowing that it will cause apprehension of criminal force.

Moreover, mere words do not amount to an assault, but the words accompanying his gestures may do so.

7. For the case herein, illustrations (a) and (c) would be relevant. These are as follows:

Illustration (a) – A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.

Illustration (c) – A take up a stick, saying to Z, “I will give you a beating”.

The statute suggests here that gestures explaining the words may result to an assault. 

These illustrations show clearly that what gestures would constitute an assault and the intention required here should be clear from his gestures that he is intending to cause to believe that he is about to strike other.

8. The Court observed here that applicant abused and threatened the respondent no.2 by rushing on his person but there was no specific gesture required under section 351 to constitute an assault. Also, it is a significant note that there was no apprehension caused on the mind of respondent no.2 as in response to the act of rushing on his body, he simply informs the applicant that action of demolition is being done as per the directions of High Court. 
9. Further, it observed that as per FIR of respondent no.2, the said incident took 2-3 hrs. before the demolition, when respondent no.2 was not engaged in lawful duty.

Considering all these facts, applicant is not punishable under section 353.

10. Apart from this, Court found that the FIR registered was motivated by malice, intended to cover up illegal demolition that is violation of Civil Court injunction protecting the property.
11. After taking into account, the photocopy of judgment in R.C.S. No. 112 of 2010, it shows that in respect of CTS No. 11583 & 11595 injunction was granted by the Civil Court against Corporation from demolishing the disputed property in this case. The property card and notice to applicant by Corporation is in itself sufficient to falsify the claims of learned APP.
12. It further expressed their concerns over misuse of section 353 IPC by such frivolous persons to harass innocent and stressed that discharging lawful duty is a prerequisite for invoking this section.
13. Consequently, the Court held that continuation of such proceedings is abuse of process and hence quashed FIR No. I-252 of 2019 R.C.C. No. 2207 of 2019 against the petitioner.

Reasoning:

1. Court referred to the principle laid down in State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 wherein the Apex court listed seven situations where High courts can quash an FIR to prevent misuse of law.
2. The present case, therefore, falls within illustration 1, 3 and 7 that are as follows:

Illustration 1- Where the allegations made in the FIR even if taken at their face value do not prima facie constitute any offence.

Illustration 3- Where the uncontroverted allegations made in the FIR and the evidence  supporting it do not infer to commision of any offence.

Illustration 7- Where a criminal proceeding is motivated by malice and intended to harass.

In the light of above discussions, Court quashed FIR registered by respondent no.2.

Conclusion:

The High Court of Bombay here interpreted the relevant sections for the case that are section 350, 351, 353 of Indian Penal Code. It stressed on the conditions when would such section be attracted. It further observed that the malicious and wrongful complaint by respondent no.2 is totally unacceptable and such persons can in no way take the advantage of section 353 by fabricating false claims against an innocent.

References:

1. SCC Online

Written by Anshika Agrawal, an Intern under Legal Vidhiya.

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