Excelsior Correspondent
Srinagar, Feb 19: High Court has ruled that assault on a public servant cannot be made out if he/she is not acting lawfully or performing the duty imposed by law.
Justice Javed Iqbal Wani quashed the FIR as also the charge-sheet against the petitioner referring to the assault on Municipal Corporation employees while carrying out the demolition of a structure. The court said that an offence under Section 353 RPC (assault or use of criminal force against a public servant) cannot be made out unless the public servant is acting lawfully to perform his duties.
“… an act of a public servant which is very contrary of the duties of such public servant cannot be said to have been done by a public servants while acting or purporting to act in discharge of an official duty and even an act done in good faith under the colour of the office of a public servant cannot said to be by any sense of imagination, an act by a public servant in discharge of his duty”, Justice Wani recorded.
These observations were made by the court while quashing the FIR and charge sheet against one Bashir Ahmad Mir, who was accused of obstructing municipal officials during a demolition drive.
The case is that the brother of petitioner-Mir, constructed a guest house in Safa Kadal area of Srinagar and to facilitate parking, he began constructing a ramp, which municipal authorities objected to, leading him to approach the High Court. The court initially restrained interference with the construction and later permitted modifications to the parking access.
The municipal officials attempted to demolish the ramp which was resisted by the owner. A portion of the structure was still demolished, prompting protests from locals. The petitioner after this episode was summoned by the police and informed that an FIR had been registered against him based on a complaint by the municipal authorities.
Mir challenged the FIR as also the proceedings of outcome of the FIR before the court below stating that legal provisions of law have been misused and he was falsely implicated for resisting an unlawful demolition in violation of the High Court’s orders as the municipal officials acted beyond their authority and in defiance of judicial directives.
The State, defending the FIR, maintained that petitioner-Mir had obstructed public servants from discharging their official duties, justifying the charges under Sections 353, 323, and 427 RPC. The court after perusal of Section 353 RPC said, the public servant must be acting lawfully in the discharge of his duty and if a public servant is not performing a duty imposed by law, his actions do not attract the protection of Section 353 RPC.
“Since nothing is forthcoming from the record of the case set up by the prosecution against the petitioner that the officials of Municipal Authority on the day of occurrence were acting in discharge of a public duty imposed by law upon them, it can safely be said and held that the offences under Sections 353 and 323 are not made out for lack of requisite essential ingredients”, the court added.
In view of these findings the court concluded that the prosecution had failed to establish any credible basis for the charges and quashed the FIR and charge sheet against Mir.
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