R.P.Shukla, J. - (1.) THIS Criminal Revision has been preferred against the judgment and order of the XVth Additional Sessions Judge Kanpur, dated 26-7-1984 thereby upholding the conviction of applicants by the trial court under section 353 of Indian Penal Code to undergo imprisonment till the rising of the court aswell as to pay a fine of Rs. 100/- each.
(2.) BRIEFLY stated the facts of the case are that on 25-7-1981 in the forenoon in between 10.15 A. M. to 1.30 P. M. when Sri R. S. Agarwal, Executive Engineer was sitting in his Divisional Office situate in Panki Power project for discharging his official duties the four applicants alongwith some others entered his office, assaulted him and used criminal force to prevent him from discharging his duties as such public servant and simultaneously they insulted thereby intending to breach the peace and criminally intimidated him to be dealt with dire consequences and threatened him to cause grievous hurt. Shri R. S. Agarwal made a written report of the incident in the police station Kalyanpur and the case was registered and investigated and the applicants were charge-sheeted and they were tried by the Metropolitan Magistrate, Joohi, Kanpur, who convicted them under sections 353, 504 and 506 IPC and sentenced them to pay a fine of Rs. 100/- each under section 353 IPC and sentence of imprisonment till the rising of the court, sentenced them to pay a fine of Rs. 75/- each under section 504 IPC, imposed fine of Rs. 75/- each under section 506 IPC and in default of payment of fine they were to undergo two months simple imprisonment. The applicants preferred appeal against this order which was ultimately partly allowed by the XVth Additional Sessions Judge Kanpur on 26-7-1984. The XVth Additional Sessions Judge, Kanpur, allowed their appeal so far as punishment under sections 504 and 506 IPC was concerned. He set aside the conviction for the aforesaid offences. But he dismissed the appeal of the applicants against their conviction under section 353 IPC and upheld the order of the Magistrate sentencing the applicants to undergo imprisonment till the rising of the court and to pay a fine of Rs. 100/- each and in default of payment of fine to undergo simple imprisonment for two months. Aggrieved by this order the applicants have preferred this revision. Learned counsel for the applicants has pointed out that according to the first information report Sri R. S. Agarwal, the informant complainant, was sitting in his Divisional Office discussing the problems of Hydro Electric Employees Union (Girish Pandey Group) and during the course of discussions, which lasted for about three hours, the applicant Beeche Ram abused him naming his father and the applicants Bikramaditya and Subeydar picked up a wooden stool for throwing it at him and the applicant Adya Shanker took out his shoes and threatened him with dire consequences when he would come out of his office. But during the course of trial improvement was made and it was stated by Sri Agarwal that the applicants alongwith some others forcibly entered his office when he was discharging his public duties as such officer (Executive Engineer, Electricity 400 KVA Sub Division, Panki Kanpur) and forced him into a discussion at about 12.00 or 12 45 P. M. on 25-7-1981, Beeche Ram, Bikramaditya, Subeydar and Adya Shanker abused him. Adya Shanker took out his shoes and threatened him, Bikramaditya and Subeydar picked up wooden stool to throw at him. The fact that the applicants forcibly entered the office of the Executive Engineer, who was acting in the discharge of his public duties as such officer and forced upon him the discussion was not even disclosed to the investigating officer under section 161 of the GrPC. The learned counsel for the applicants argued that this embroidery was made in the case at the stage of the trial only to bring in the ingredients of the; offence under section 353 IPC against the applicants and, therefore, he submitted that no offence under section 353 IPC can be made out against the applicants if they are found neither to have forcibly entered the office of the Executive Engineer nor to have forced the discussion upon him. I am not inclined to accept that the applicants forced their entry into the office of Sri Agarwal and that they forced the discussion upon him as he stated before the trial court but at the same time I do not find any reason to disbelieve the case as narrated in the first information report. I am not inclined to believe that the officer who sat for three hours discussing the departmental problems with the representatives of the Union (Girish Pandey Group) would suddenly decide to make a false report against them without any reason whatsoever. The case as unfolded in the first information report appears very natural. Problems do arise between the workers and the administrative heads in the departments and they have to be discussed between the representatives of the Union and the administrative heads in the interest of smooth working and mutual cooperation ; such discussions to solve the problems have become more or less every day affair in the present democratic set up and such discussions are therefore nothing but a part of public duty of administrative heads. Sri R. S. Agarwal the complainant informant was the administrative head at the time of incident beside being a technical man i.e. Executive Engineer. The discussion continued for about three hourse. This is; also common human experience that the tempers do rise high during such discussions but picking up wooden stool to throw at the officer and taking off shoes are certainly gestures or preparation intending or knowing it to be likely that it would cause the apprehension in the mind of the officer that criminal force is about to be used. Assault has been defined under section 351 IPC "Whoever makes any gesture or any 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 about to use criminal force to that person, is said to commit an assault. "
(3.) APPLICANT Vikramaditya and Subeydar took wooden stool to throw at Sri R. S. Agarwal, the complainant and applicant Adya Shanker Sharma took out his shoes and threatened the complainant with dire consequences when he would go out of his office. Both the courts below have recorded concurrent findings on this fact. The aforesaid acts of these applicants do amount to assault on R. S. Agarwal, the Executive Engineer (A public servant) while he was discharging his public duty as discussed above. They are, therefore, found guilty of the charge under section 353 IPC. The allegation against applicant Beecheram is only that he abused the complainant which offence has been found by the Sessions Judge not to have been made out. According to explanation to section 351 IPC mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparations such a meaning as may make those gestures or preparations amount to an assault. As regards applicants Beeche Ram neither the words are mentioned nor there is any allegation of gesture or preparation against him. He is found not guilty of the charge under section 353 IPG. In the result the revision preferred by applicant Beeche Ram is allowed. He is acquitted of the charge under section 353 of the IPC. Fine if paid shall be refunded to him.;