S. 353 IPC not to be used as a tool to cover outright illegality; Bombay High Court quashes false FIR filed by State

Bombay High Court

Bombay High Court: In an application filed by the applicant seeking quashing of FIR registered in Aurangabad for the offenses punishable under Sections 353, 504, 506 read with Section 34 of Penal Code, 1860 (IPC), R M Joshi, J., allowed the application and quashed the FIR because no cognizable offense was made out against the applicant, to continue criminal prosecution on the basis of an apparently frivolous and malicious complaint that will result in an abuse of process of Court.

On 16-07-2019, when State authorities (respondent) came to the spot to remove the alleged encroachment, the applicant informed him that he is the lawful owner of the property and showed the property card indicating the name as an occupier. The applicant claims that false complaint has been registered against him. The encroachment was in pursuance of Court directions in a PIL filed in respect of encroachment on Salim Ali Lake as alleged by the State authorities.

The complaint made in the FIR states that the applicant and his relative Navid Shaikh abused the respondent, threatened, and rushed them during the encroachment drive. It was also alleged that the applicant and his relative created a ruckus at the spot and caused obstruction to the lawful discharge of duties of the respondent.

The Court noted that on perusal of Sections 349, 350, 353 of IPC as well as the FIR it shows that there is an allegation regarding rushing on State authorities, however, there is no specific allegation against the applicant that he has caused the respondent any motion, change of motion or cessation of motion with the use of bodily power. Thus, on the face of it, this is not a case wherein any force has been used by the applicant and consequently application of criminal force does not arise.

The Court further noted that there is also an allegation regarding that applicant abused and threatened the respondent by rushing on his person, however, except for the words spoken there is a complete absence of any gesture as contemplated in Section 351 IPC to constitute it to be an ‘assault’. Thus, the contents of FIR clearly show an absence of any apprehension by the gestures caused to the respondent.

The Court observed that the present FIR is an outcome of malafide and malicious complaint against the informant to cover up the action of the respondent, which was wholly illegal, in total disregard of law, and contemptuous being in utter violation of the injunction granted in respect of the subject property by the Civil Court. The complaint is also based or initiated on a totally false claim that there was the direction of the High Court in Suo Moto Petition for demolition of the structure around Dr. Salim Ali Lake.

The Court further noted that the provision of Section 353 of IPC has been enacted to make sure that public servant is not being obstructed or deterred from performing his lawful duties and by no stretch of imagination same can be allowed to become a tool in hand, of unscrupulous persons to cover up outright illegality as done in the present case.

Thus, the Court held that no cognizable offense is made out against the applicant, rather, a frivolous and malicious complaint was filed in blatant violation and abuse of the process of the Court.

[Amer Khan v State of Maharashtra, 2023 SCC OnLine Bom 818, decided on 22-02-2023]

Judgment By: Justice R M Joshi

Advocates who appeared in this case :

Mr. Ashutosh S. Kulkarni, Advocate for the Applicant;

Mr. A.R. Kale, APP for the respondent/State;

Mr. A.R. Vaidya, Advocate for the Respondent 2.

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