Jharkhand HC upholds conviction U/S 353 IPC

The Jharkhand High Court has held that actual use of criminal force is not a condition precedent to deal with the offense of assault defined under Section 351 of the IPC, which is punishable under applicable Section 353.

The Court ruled that the victim’s mere fear about the possible use of criminal violence, created by the suspect’s gestures, is sufficient to commit the crime.

The bank of Judge Anubha Rawat Choudharypresiding over the case, noted that Section 353 IPC deals with crimes arising out of assault and use of criminal force. It clarified, “Considering the basic ingredients of the definition of ‘assault’ under Section 351 IPC, this Court is of the view that if a person enters the office room of a public servant while the public servant is discharging his official work and abuses and pressurizes the public servant to perform a particular duty performs a certain manner in which the official otherwise disagrees, or questions the official about the manner in which he has performed his official duty, thus preventing the official from performing his official duty and escalating the situation to such an extent that the public servant is forced to call the police to take control of the situation, the act falls within the meaning of assault as defined under Section 351 IPC and, accordingly, it becomes an offense under Section 353 IPC.”

“The actual use of criminal force is not a condition precedent to attract Section 351 and hence attract Section 353 of the IPC. Concern in the mind of the victim about the use of criminal force created by a gesture of the suspect is sufficient. Such concern is reflected in the victim’s action, response and follow-up action to handle the situation, and one of those actions is calling the police to handle the situation when the officer fails to convince the suspect . Justice Choudhary added.

The case involved three persons who entered the office of the informant, a civil servant, and demanded the immediate issuance of a death certificate. One of the suspects, DN Choubey, threatened the informant with serious consequences and started assaulting him. The other two accused were identified as Banamali Singh Choudhary, former Pramukh of Chas Block, and Ramlal Singh.

A case was registered against the accused under Sections 353, 448 and 504/34 of the IPC. The court convicted them under Sections 353 and 504/34 IPC but acquitted them of the charges under Section 448 IPC. The Court of Appeal upheld the conviction, prompting a review application now before the Supreme Court.

Counsel for the petitioner submitted that there was no eyewitness to the incident and the trial court had relied on the testimony of PW-4. It was further alleged that no criminal force had been used, and there were no allegations against the suspect that he had prevented the informant from carrying out his official duties.

In response, counsel for the State argued that the informant, an executive magistrate, was performing his duties in his office when the suspect entered and committed the crime. The counsel for the state emphasized that in order to invoke Section 353 of the IPC, the presence of criminal force or assault must be proven, and in this case the essential elements were clearly established.

The Court clarified the definition of assault under Section 351 of the IPC and stated: “Whoever makes a gesture or preparation with the intention or knowledge that it is likely that such gesture or preparation will cause a person present to understand that he who makes that gesture or preparation is about to commit criminal violence against that person, he is said to be guilty of assault under Section 351 IPC.”

The Court further explained that a gesture made with the knowledge that it would lead to the apprehension of criminal violence constitutes assault. Section 353 IPC includes use of criminal force as well as assault. The Court added that although mere words do not amount to assault, they, when combined with gestures or preparations, may give rise to assault.

The Court concluded, “There is no merit in this review petition calling for any interference in the conviction and sentencing of the petitioner and accordingly, this review petition is dismissed.”

Case Title: Devendra Nath Choubey V. State of Jharkhand

LL citation: 2024 LiveLaw (Jha) 178

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