To Avail The Benefit Of Section 353 IPC, Public Servant Must Be Discharging His Permitted Duty/ Assigned Responsibility: Karnataka HC
The Karnataka High Court ruled that the benefit of Section 353 of IPC is only available to a public servant who is discharging the permitted role or the assigned responsibility.
The bench of Justice Suraj Govindaraj observed, “When the action on part of respondent No.2 is not in discharge duty as a public servant there is no protection which is available to such an officer nor could such an officer claim a benefit of Section 353 of the IPC to initiate proceedings.”
The Petitioner, Bharath Shah approached the High Court under Section 482 CrPC to quash the complaint, FIR, and charge sheet pending before the Additional Chief Metropolitan Magistrate along with the order issuing summons which was issued after taking cognizance against him for the offence under Section 353, 504, 506 IPC.
A complaint was filed against the Petitioner by his neighboour regarding the running of the school, hence, proceedings were taken up under the Karnataka Municipal Corporation Act, 1976 (for short “KMC Act, 1976”). Later, notices were served, to which Petitioner replied in detail. Further another notice was issued to attend a meeting at the BBMP Office in Vyalikaval, which was not served on the petitioner therefore, he could not appear.
Subsequently, an order was passed directing the closure of the school of the petitioner. It is alleged that the Health officer came to the school to implement the order when the Petitioner and his employee stated to have obstructed him. Therefore, a case was registered against him under Sections 353, 504, and 506 of IPC.
Counsel for the Petitioner, Senior Counsel B.K. Sampath Kumar contended that CCTV footage, which, however, is not considered in the investigation, did not show any occurrence of the alleged incident.
He further argued that Health Officer had no jurisdiction to implement the closure order passed under KMC Act, 1976, and on assuming that such an event had occurred, the respondent’s action not being in the discharge of a duty by a public servant, there cannot be an offence said to have occurred under Section 353 of the IPC.
Counsel for the Respondent argued that it is in pursuance of the direction of the Commissioner, BBMP that the respondent visited the premises and served the notice. He further argued that once the notice was served the same was also tried to be implemented by him. Thus, the action taken by him was in pursuance of the directions issued by the Commissioner of the BBMP, and as such it is in the discharge of official duty.
The Court refused to delve into the facts of the occurrence of the event and stated that it is the subject matter of the trial Court.
The Court after perusing Section 353 IPC observed, “the sine-qua-non for initiating proceeding by invoking Section 353 of the IPC is that firstly, the person should be a public servant and secondly he is discharging his duty as a public servant at the time of the incident.”
As per the Court, the dispute in the present case is whether the respondent was discharging his duty as a public servant when the incident is alleged to have occurred.
The Court noted that the respondent is a Health Officer whose duties do not indicate any duty in respect of either the violation of the plan sanction or violation of the Zonal Regulations in terms of the usage of residential property for a commercial purpose as alleged in the matter.
He further noted that the instructions that were given to him by the Commissioner, BBMP were only to serve the said notice on the petitioner and nothing else.
The Court stated that subsequent, to the order passed for the closure of the school it was for the concerned authorities to do the needful under Section 321 and Section 462 of the KMC Act, 1976 and the respondent is not an officer authorised to take any action.
Therefore, according to the Court, a visit by the respondent after the Commissioner’s order cannot be one which could be said to be in discharge of duty as a public servant as contemplated in Section 353 of the IPC.
Consequently, the Court stated that Petitioner is not entitled to benefit under Section 353 IPC.
The Court quashed the FIR and the subsequent charge sheet and allowed the Criminal Petition.
Cause Title: Bharath Shah v. State of Karnataka (Neutral Citation: 2024:KHC:10271)
Appearance:
Appellant: Senior Counsel B.K. Sampath Kumar, Adv. Suraj Sampath
Respondent: HCGP M.R. Patil, Adv. Vasu k, Adv. K.N. Puttegowda