G.B. Patnaik, J.@mdashAccused in G.R. Case No. 158/84 in the Court of the Sub-Divisional Judicial Magistrate, Khurda is the Petitioner invoking inherent jurisdiction of this Court for quashing the order of cognisance dated 20th June, 1984 taking cognisance u/s 353 and 506 I.P.C. The process server by name Gadadhar Misra has been to village Lendu to serve a summon on the Petitioner in complaint case No. ICC 142/83 wherein the Petitioner was an accused. It was reported by the said process server that as the Petitioner refused to receive the summons, he hung the same on the wall of the Petitioner. The Petitioner thereafter filed an affidavit on 10.2.84 against the said process server that his report was completely false and conducted. The said process server made an application to the District Judge, alleging therein that on 12.2.84 at 3.30 P.M., while he was returning to Court after serving summons, the Petitioner met him near Khurda State Bank Chhak and rebuked him in obscene language in presence of two persons. The District Judge sent that application to the Sub-Divisional Judicial Magistrate who in turn forwarded the same to the Officer-in-charge, Khurda Police Station to treat it as an F.I.R. and take necessary action. Subsequently Gadadhar Misra also gave a written report at Khurda Police Station. The Officer-in-charge, Khurda Police Station registered as case and started investigation. In course of investigation, statements of the two witnesses were recorded and on completion of investigation, charge sheet was filed on 11.5.84 against the Petitioner under Sections 353 and 506 I.P.C. On the basis of the said charge-sheet and on perusal of the supporting materials, the Sub-Divisional Judicial Magistrate having been cognisance u/s 353 and 506 I.P.C. against the Petitioner, the present application has been filed for quashing the same.
2. Mr. Patnaik, the learned Counsel for the Petitioner contends that the averments made in the application of Gadadhar Misra which has been treated as F.I.R. in the case together with the statements of the witnesses recorded by the police u/s 161 Code of Criminal Procedure during the investigation do not constitute the offence for which cognisance has been taken and, therefore, the said order of cognisance must be quashed.
3. The short question for consideration, therefore, is whether the allegations in the F.I.R. as well as the statements of witnesses recorded by the police during investigation constitute the offence in question or not, It has been alleged in the F.I.R. that an 12.2.84 at 3.30 P.M. the accused met the informant near the State Bank Chhak and started quarreling and abused him in obscene language and threatened that he would see the informant within 10 or 12 days, By such words and conduct of the accused, the informant was terrified and lost his prestige and reputation. The accused is alleged to have stated so in presence of Sashibhusan Patnaik of Khurda and Raghunath Patnaik of Baniatangi. Section 161 Code of Criminal Procedure, statements of those tow witnesses are to the affect that while the process server Gadadhar Misra was on his uniform, accused Braja Kishore stopped him on the road and enquired from him as to why he has given a false report against him. So saying the said accused Braja Kishore threatened him with dire consequences, abused him in filthy languages and said that he would take his job. As several others were present they all told the accused not to humuliate the process server in that manner on the road whereafter the accused left towards Khurda. The informant Gadadhar Misra in his statement u/s 161 Code of Criminal Procedure fully corroborated the statements in the F.I.R. It is now to be seen whether an offence u/s 353 as well as 506 I.P.C. can be stated to have been prima facie established justifying the Magistrate taking cognisance of the two offences.
4. Section 353 of the Indian Penal Code deals with the offence of assault or use of criminal force to a public servant in 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. ''Assault'' has been defined in Section 351 and ''Criminal force'' has been defined in Section 349 and 350 I.P.C. The necessary ingredients to attract Section 353 I.P.C. are:
(i) Assault or use of criminal force to a person being a public servant;
(ii) such public servant have been in execution of his duty as such public servant; or
(iii) use of criminal force or assault with intent to prevent or deter the person from discharging his duty as a public servant.
In fact the process server would be a public servant but at the point of time when the occurrence took place he was not in lawful discharge of any of his duties and, therefore, one of the ingredients to attract Section 353 I.P.C. has not been satisfied. Consequently the offence cannot be one u/s 353 I.P.C. Even if it may not be an offence, within the ambit of Section 353 I.P.C. but yet it would be seen whether it at all attracts Section 352 I.P.C. which in turn has to be determined whether on the allegations, it can be said that the accused did use any criminal force within the meaning of Section 350 I.P.C. or did assault within the meaning of Section 351 I.P.C. A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other. Whenever force is used intentionally to any person, without that person''s consent, in order to the committing of any offence or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. A person is said to have committed an assault when he makes any gesture or preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Whether a particular act amounts to assault or not depends upon the circumstances of each particular case. The very act may not amount to an assault in one case but the same when taken along with other surrounding circumstances may amount to an assault in other case. Examining the materials on record, in the present case, I would, therefore, hold that though the offence u/s 353 I.P.C. is not prima facie established but it can not be said that the offence u/s 352 I.P.C. has not been established, since the accused did use criminal force to the process server Gadadhar Misra and the same was not grave and sudden provocation. Consequently the order of cognisance u/s 353 I.P.C. may be appropriately amended to one u/s 352 I.P.C.
5. So far as the offence u/s 506 I.P.C. is concerned is required to be found out whether there was any threat or injury to person''s reputation or property of any person and the intention to cause alarm to that person. If an accused tells the complainant or the informant that he would be beaten and then alone he would vacate the house in which he was living, an offence u/s 506 I.P.C. may be held to have been established. The materials on record in the present case clearly reveal that the accused-Petitioner on a public road did abuse and threaten the process server Gadadhar Misra to the effect that he will meet with dire consequences for the alleged false report given by him and the process server will lose his service so much so that the process server was very much terrified and reported the matter to the District Judge. In this view of the matter I am unable to persuade myself to agree with the submission made by the learned Counsel for the Petitioner that prima facie the offence u/s 506 I.P.C. is not made out. It is too well settled that at the stage of taking cognisance an order of cognisance can be quashed by this Court only if the materials taken in entirety on face value do not constitute the offence for which the cognisance has been taken. The Supreme Court has all along used the word of caution that inherent jurisdiction should be sparingly used only when the Court would be of the opinion that there has been gross abuse of process of Court or there has been gross miscarriage of justice. In view of my conclusion arrived at earlier on the materials on record, I do not think that this is a fit case to quash the order cognisance subject to what has been stated earlier with regard to the offence u/s 353 I.P.C.
6. In the net result, therefore, I do not find any merit in this application which is accordingly dismissed.
The Lower Court records be sent back immediately.
