Supreme Court of India
MAHENDRA KUMAR SONKERversusTHE STATE OF MADHYA PRADESH
- Citation
- 2024 INSC 600
- Decided
- 12 August 2024
- Disposal
- Appeal(s) allowed
Holding
A conviction under Section 353 IPC requires proof of assault or intentional criminal force, which was not established; therefore the conviction is unsustainable.
Summary
The appellant, a Patwari, was accused of demanding a bribe of Rs.500 and was caught in a trap operation organized by the Lokayukta. He was convicted under Section 353 of the Indian Penal Code for assaulting public servants during the trap, and sentenced to six months' imprisonment and a fine. On appeal, the Supreme Court examined whether the prosecution had proved the essential ingredients of Section 353, namely assault or the intentional use of criminal force against the police officers. The Court held that the evidence showed only jostling and pushing as the appellant tried to escape, without any intention to assault or use criminal force, and no hard object was used. Consequently, the conviction under Section 353 was set aside and the appellant was acquitted, with the appeal allowed.
Issues considered
- Whether the conviction under Section 353 IPC can be sustained without proof of assault and criminal force.
- Whether the facts established the elements of assault or criminal force as defined under Sections 349, 350, and 351 IPC.
- Whether the appropriate provision for obstruction of a public servant would be Section 186 IPC instead of Section 353 IPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 195(1)(a)(i)
- Indian Penal Code, 1860s. 186, s. 349, s. 350, s. 351, s. 353
- Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 7
Subjects
Section 353 IPCAssaultCriminal forcePublic servantTrap proceedingsCorruptionAcquittalEvidence
Judgment
[2024] 8 S.C.R. 935 : 2024 INSC 600
Mahendra Kumar Sonker
v.
The State of Madhya Pradesh
(Criminal Appeal No. 520 of 2012)
12 August 2024
[B.R. Gavai, K.V. Viswanathan* and
Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
Whether the conviction of the appellant under s.353 of the Indian
Penal Code, 1860 (IPC) can be sustained without proving assault
and use of criminal force.
Headnotes†
Indian Penal Code – s.353 IPC – Complaint against appellant
filed regarding demand of Rs. 500/- as illegal gratification –
Trap proceedings organised – Appellant charged for offences
under ss.7, 13(1)(d) r/w 13(2) of the Prevention of Corruption
Act, 1988 along with ss.201 and 353 IPC – Special Judge, Sagar
convicted appellant for offence u/s.353 IPC and sentenced him
to undergo simple imprisonment for six months and imposed
Rs. 1000/- fine – Appeal dismissed by High Court – Present
appeal only concerned with conviction u/s.353 IPC – Allegation
regarding charge u/s.353 IPC was that appellant, in collusion
with his wife, with an intention to obstruct members of the trap
team in performing their pubic duty during trap proceedings,
attacked them or exercised criminal force on them:
Held: Use of criminal force or assault necessary ingredients of
s.353 IPC – Use of force to any person without that person’s
consent in order to the committing of any offence required to
establish criminal force as defined u/s.350 IPC – Force defined
u/s.349 IPC – Assault u/s.351 IPC would mean 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 is about
to use criminal force to that person – On facts – Upon considering
oral and medical evidence, prosecution unable to establish that
appellant assaulted or used criminal force against trap party –
* Author
936 [2024] 8 S.C.R.
Digital Supreme Court Reports
Attempt was made by appellant to wriggle out when apprehended –
Jostling and pushing appears to have happened in process
of extricating himself from arrest – None of the ingredients of
assault or criminal force attracted – Jostling and pushing by
appellant with attempt to wriggle out was not with intention to assault
or use of criminal force – No evidence to indicate that accused
assaulted or used criminal force on the trap party in execution of
their duties or for the purpose of preventing or deterring them in
discharging their duties. [Paras 15-18, 28-29]
List of Acts
Penal Code, 1860; Prevention of Corruption Act, 1988.
List of Keywords
Penal Code, 1860 – s.353; Criminal force; Assault; Intentional
use of force; Public servant; Discharge of duty; Trap proceedings.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 520
of 2012
From the Judgment and Order dated 14.10.2009 of the High Court
of M.P. at Jabalpur in CRLA No. 1949 of 2007
Appearances for Parties
Siddharth Aggarwal, Sr. Adv., Ms. Garima Bajaj, Advs. for the
Appellant.
Arjun Garg, Aakash Nandolia, Ms. Sagun Srivastava, Ms. Kriti Gupta,
Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
K.V. Viswanathan, J.
1. The present appeal calls in question the judgment dated 14.10.2009
passed by the High Court of Judicature at Jabalpur, Madhya
Pradesh in Criminal Appeal No. 1949 of 2007. By the said judgment,
the appellant’s conviction under Section 353 of the Indian Penal
Code, 1860 (for short ‘the IPC’) and sentence of six months simple
[2024] 8 S.C.R. 937
Mahendra Kumar Sonker v.
The State of Madhya Pradesh
imprisonment and fine of Rs. 1,000/- imposed by the Special Judge,
Sagar has been confirmed. Aggrieved, the appellant is in Appeal.
2. Originally, the appellant along with his wife Mamta stood trial. While
the appellant was charged for offences under Sections 7, 13(1)(d)
read with 13(2) of the Prevention of Corruption Act, 1988 (for short
‘the Act’) as well as Sections 201 and 353 of the IPC, his wife Mamta
was charged under Section 353 and 201 of the IPC.
3. We are, in this appeal, concerned only with the conviction of the
appellant under Section 353 of the IPC. The appellant has been
acquitted of other charges and his wife Mamta has been completely
acquitted including for the offence under Section 353 of the IPC.
Accordingly, only those aspects of the facts which have a bearing
on the present appeal are set out hereinbelow.
Brief Facts:
4. The complainant in the original corruption case is one Babulal Ahirwar
(PW-1). It appears that on his complaint to the Collector about the
irregularities in the work of construction of the Education Guarantee
Building, the then President of the Committee constituted for the
purpose of construction, Santosh Ahirwar was removed from the
President’s post.
5. The appellant, who was posted as Patwari in Circle No. 89, Village
Naryaoli, District Sagar had been entrusted with the inquiry into a
complaint against the said Babulal Ahriwar to the effect that he had
made a false complaint against Santosh Ahirwar. It transpires that the
appellant, in the inquiry, found the charge against Babulal Ahirwar to
be false. When Babulal Ahirwar sought a copy of the report from the
appellant, the case of the prosecution is that the appellant demanded
a sum of Rs. 500/- as illegal gratification.
6. The said Babulal Ahirwar, on 28.06.2004, filed a complaint with the
Superintendent of Police, Special Police Establishment Lokayukt,
Sagar against the appellant in this regard. An FIR was registered
under Section 7 of the Act and trap proceedings were organized.
O.P. Tiwari (PW-4) and M.K. Choubey were co-opted along with
the trap party which consisted of Head Constable Niranjan Singh,
Constable Raj Kumar, Constable Shiv Shanker Dube and Inspector
N.K. Parihar. The case set up by the prosecution was that they
938 [2024] 8 S.C.R.
Digital Supreme Court Reports
waited for the accused-appellant and when he arrived at his house,
Babulal Ahirwar accosted him and handed over the currency to the
appellant and signaled to the trap party. The trap party arrived there
to apprehend the appellant.
7. We are directly concerned with what transpired at this point since the
only surviving Section under which the appellant has been convicted
is Section 353 of the IPC. We will deal with this aspect in detail a
little later in the judgment.
8. Special Case No. 20 of 2005 was registered against the appellant and
his wife for the offences mentioned hereinabove. The appellant and
his wife denied the charges and claimed trial. Prosecution examined
thirteen witnesses and the defence examined three witnesses.
9. By the judgment of 05.09.2007, the learned Special Judge, Sagar
while acquitting the appellant for offences under Sections 7, 13(1)(d)
read with 13(2) of the Act and Section 201 of the IPC, convicted
him for the offence under Section 353 of IPC and sentenced him
to undergo simple imprisonment for six months. Additionally, a fine
of Rs. 1000/- was imposed and the appellant’s wife was acquitted
of all the charges.
10. Aggrieved, the appellant preferred an appeal to the High Court which
has since been dismissed.
11. Insofar as the charge under Section 353 of the IPC was concerned,
the allegation was that the appellant in collusion with his wife with an
intention to obstruct the members of the trap team in performing their
public duty during the trap proceeding, attacked them or exercised
criminal force on them. It is this part of the case which has been
believed by the courts below.
12. We have heard Mr. Siddharth Aggarwal, learned senior counsel for
the appellant and Mr. Arjun Garg, learned counsel for the respondent
State.
CONTENTIONS:
13. Mr. Siddharth Aggarwal, learned senior counsel contended that the
courts below were not justified in recording the conviction under
Section 353 of IPC; that on the same evidence the wife of the
appellant, Mamta has been acquitted; that the evidence of PW-1
[2024] 8 S.C.R. 939
Mahendra Kumar Sonker v.
The State of Madhya Pradesh
Babulal Ahirwar, PW-4 O.P. Tiwari, PW-8 N.K. Parihar, PW-9 Niranjan
Singh read with the evidence of PW-13 Dr. H.L. Bhuria, do not
make out a case for conviction under Section 353 of IPC against
the appellant and that none of the ingredients required to maintain
a conviction under Section 353 of IPC have been established. Mr.
Arjun Garg, learned counsel for the State defended the conviction and
prayed that no case for interference with the concurrent conviction
is made out.
14. We have carefully considered the arguments of the parties and have
perused the records of the case, including the original records.
15. At the outset, we extract hereinbelow Section 353 of the IPC:
“353.-Assault or criminal force to deter public servant
from discharge of his duty. - Whoever assaults or uses
criminal force to any person being a public servant in
the 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, or in consequence of
anything done or attempted to be done by such person
in the lawful discharge of his duty as such public servant,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine,
or with both.”
A perusal of Section 353 indicates that whoever assaults or uses
criminal force (a) to any person being a public servant in the execution
of his duty as such public servant, or (b) with intent to prevent or
deter that person from discharging his duty as such public servant,
or (c) in consequence of anything done or attempted to be done
by such person in the lawful discharge of his duty as such public
servant, shall be punished with the imprisonment of either description
for a term which may extend to two years, or with fine, or with both.
16. It is important at this stage to notice the definition of criminal force
as defined in Section 350 of the IPC.
“350. Criminal force.- Whoever intentionally uses force
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
940 [2024] 8 S.C.R.
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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.”
As would be clear, what is required to establish criminal force is
intentional use of force to any person without that person’s consent
in order to the committing of any offence.
17. Section 349 of the IPC which defines force is extracted hereinbelow :
“349. Force.- A person is said to use force to another
if he causes motion, change of motion, or cessation of
motion to that other, or if he causes to any substance
such motion, or change of motion, or cessation of motion
as brings that substance into contact with any part of
that other’s body, or with anything which that other is
wearing or carrying, or with anything so situated that such
contact affects that other’s sense of feeling: Provided
that the person causing the motion, or change of motion,
or cessation of motion, causes that motion, change of
motion, or cessation of motion in one of the three ways
hereinafter described.
First. - By his own bodily power.
Secondly. - By disposing any substance in such a manner
that the motion or change or cessation of motion takes
place without any further act on his part, or on the part
of any other person.
Thirdly. - By inducing any animal to move, to change its
motion, or to cease to move.”
18. Assault under Section 351 of the IPC would mean 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 is about
to use criminal force to that person.
19. In this background, if we peruse the evidence on record, insofar as
the charge under Section 353 of the IPC is concerned, it will transpire
that none of the ingredients required for convicting a person under
Section 353 of IPC were attracted.
[2024] 8 S.C.R. 941
Mahendra Kumar Sonker v.
The State of Madhya Pradesh
20. PW-1 Babulal Ahirwar, insofar as this part of the event that transpired
is concerned deposed as under:
“6. ….The name and address was asked from the accused
and the accused was caught. On being asked from the
accused about the money he became uncontrolled and
tried to run from there. Taking advantage of the dark, the
accused threw away those notes.
7. With much difficulty the accused could be won over.
The wife of the accused also came at that time and crowd
had also gathered there. Wife of the accused was striking
her head on the jeep…..”
(Emphasis supplied)
21. PW-4 O.P. Tiwari has deposed as under:
“3. ….When we caught hold of the accused he was not
having money. The applicant then told that the accused
has thrown the money in the dark. Thereafter the Inspector
started searching the money by starting the torch. The
Inspector found in the light of the torch, one 50 rupees
note lying. Inspector Parihar took that note up and gave
it to me and asked me to keep it. Other notes were also
searched there but notes could not be found there.
4. After that we tried to apprehend the accused patwari
and forced him to sit in the vehicle to take him to police
station Naryaoli but the accused Patwari objected to it. In
spite of the objection taken by the accused anyhow the
accused was made to sit in the vehicle. At the same time
the wife of the accused arrived and lay down before the
vehicle. In such a condition the vehicle was reversed and
turned back and we had to go to police station. When the
vehicle moved the wife of the accused started her head
striking with the bonnet of the vehicle. Other persons
present there, caught hold of the wife of the accused and
removed her from there only then we people took the
vehicle and started for police station Naryaoli….”
(Emphasis supplied)
942 [2024] 8 S.C.R.
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22. PW-8 N.K. Parihar has deposed as under:
“6. ….Therefore the trap team surrounded the accused
and tried to apprehend him. The accused objected to it
forcefully so they could not catch him all of a sudden.
7. The accused had shouted so crowd had assembled
there. In the meanwhile the accused took out the bribe
notes from his pocket and had thrown them. The accused
was apprehended. On searching the notes on the ground
only one note of Rs.50/- was seen which panch witness
Shri Tiwari picked up. Looking to the opposition, we took
accused to police station Naryaoli where solution of sodium
carbonate was prepared, which was colouring less….
xxx xxx xxx
9. ….I had given one application in regard to the incident
to Station House Officer Naryaoli, photocopy of which is
enclosed. On 30.6.2004 I had filled MLC form for getting
medically examined the head constable Niranjan Singh,
myself & Rajkumar Sen, on which I had signed which are
P-22 to P-25 respectively. After that I had handed over
the case for investigation to D.S.P. Shri Ranjan Tiwari.”
(Emphasis supplied)
23. We have also perused the original record insofar as the application
given to the Station House Officer is concerned, the translated portion
obtained officially reads as under:
“To
The PS In-charge
Sic Narayavali (Madhya Pradesh)
Subject - Regarding the accused Mahendra Kumar of
trap.(Sic)
Shri Mahendra Sonkar was caught taking bribes on
29/06/03 at 8 O’clock. He called out to his wife. The
woman clung to her husband to free him. She put her
head on the jeep sic and grabbed the accused’s hand
and started pulling him out of the jeep. The accused also
[2024] 8 S.C.R. 943
Mahendra Kumar Sonker v.
The State of Madhya Pradesh
grabbed her hand so that he could escape from the case
by taking shelter of his wife. He also threw bribe notes but
only one note was recovered in the trap sic. The accused
created a lot of ruckus which disrupted the work. Please
investigate this case.
Sd/-illegible 29.6.04
Sd/-illegible
29.6.04
(Shyam Bihari Mishra H.C.)”
(Emphasis supplied)
This document however does not appear to have been exhibited.
24. We have also seen Exh.P-22 to Exh.P-25. The translated portions
of which read as under:
“Exh.P-22:
To
The Medical Officer,
District Hospital Sagar District
Sagar
Subject: Regarding medical examination of the injuries
sustained by Head Constable Niranjan Singh, Special
Police Establishment, Lokayukta, Sagar Division, Sagar
and submitting a report
During the trap proceedings dated 29-6-2004 in Crime
No.0/04 under Section 7, 13(1) 13(2) PC Act 1988, when
accused Mahendra Kumar Sonkar and his wife tried to
resist, Head Constable Niranjan Singh sustained the
following injuries. Please examine and submit a report.
1. Injury with swelling near the right eye
2. Injury with swelling on the ankle of the right foot
Sd/-illegible
30.6.04
944 [2024] 8 S.C.R.
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SPL No.20/05
Ex P 22
PW8
21.11.06
(Satyendra Kumar Singh)
Special Judge and
First Additional Session Judge, Sagar
(Emphasis supplied)
Exh.P-23:
To
The Medical Officer
District Hospital
Sir,
It is requested that Mahendra Sonkar accused of Crime
No.0/04 and his wife opposed the proceedings, as a
result Inspector N.K. Sic sustained injuries in the middle
finger of left hand causing swelling. Kindly examine and
send report.
Sd/-
30.6.24
SPL No.20/05
Ex P23
PW8
21.11.06
Sd/-
(Satyendra Kumar Singh)
Special Judge and
First Addl Sessions Judge, Sagar
[2024] 8 S.C.R. 945
Mahendra Kumar Sonker v.
The State of Madhya Pradesh
Exh.P-24:
Illegible
Subject : Constable Rajkumar illegible
It is requested that in Case Crime No. sic 7, 13(1) D,
13(2) PC Act, Mahendra Kumar Sonkar and his wife tried
to sic avoid the proceedings and resisted and hence the
constable has suffered the following injuries to examine
& give the report.
1. Swelling in the wrist of the right hand
2. Small scratches on both hands
3. Many sic injuries
Sd/-illegible
30.6.04
SPL NO.20/05
Ex P24
PW8
21.11.06
(Satyendra Kumar Singh)
Special Judge and
First Additional Session Judge, Sagar
(Emphasis supplied)
Exh.P-25
Sic District
Subject: Constable Shivshankar sic
In the proceedings of Crime No.0/04 u/s 7, 13(1)D, sic PC
Act, accused Mahendra Kumar Sonkar sic and his wife
resisted in which constable sustained following injuries.
Examine and give the report.
946 [2024] 8 S.C.R.
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1. There is swelling in the little finger of the right hand.
2. There is pain in the chest and back.
Sd/-illegible
30.6.04
SPL NO.20/05
Ex P.25
P.628
21.11.06
(Satyendra Kumar Singh)
Special Judge and First
Additional Session Judge, Sagar”
(Emphasis supplied)
25. PW-9 Niranjan Singh has deposed as under:
“2. …After some time the non-applicant Patwari came
by his motorcycle and he contacted with the applicant in
front of his residence. The applicant gave the amount of
bribe to the accused Patwari. He took it in his hand and
placed it in the pocket of his shirt.
3. During this time constable Shivshanker and Rajkumar
suddenly tried to catch and the accused patwari tried to
run away and constable Shivshanker and Rajkumar caught
him. At the same time taking advantage of the darkness,
the accused threw away the bribe money on the ground
and the accused began to swing and jerk (‘jhooma-jhatki’
as available from the Hindi version). At the same time wife
of the accused came out of the residence and began to
cry. Enough crowds assembled at the spot of incident and
patwari was doing too much swing and jerk….
During the incident I had suffered injuries near my right eye
and at the ankle of the right leg. In this regard my medical
examination was also done at District hospital Tili Sagar”
(Emphasis supplied)
[2024] 8 S.C.R. 947
Mahendra Kumar Sonker v.
The State of Madhya Pradesh
26. We have also examined the evidence of Dr. H.L. Bhuria PW-13, who
recorded the injuries as mentioned hereinabove and stated that the
injuries might have been caused with hard and blunt object.
(Emphasis supplied)
27. We have also carefully perused the defence witnesses including the
evidence of DW-2 Sitaram Chourasia who generally states that three
to four persons came and there was pushing and shoving (‘dhakka
mukki’ as is evident from the Hindi deposition) between the accused
and those persons.
28. Having considered the oral evidence and the medical evidence, we
are constrained to conclude that the prosecution has not established
that the appellant has assaulted or used criminal force against
the trap party. In fact, what transpires is that when the appellant
was apprehended there appears to have been an attempt by the
appellant to wriggle out and jostling and pushing appears to have
happened, in the process of the appellant trying to extricate himself
from the arrest. None of the ingredients of assault or criminal force
have been attracted.
29. Further, there is absolutely no evidence to show that the accused
used any hard and blunt object. PW-13 Dr. H.L. Bhuria had deposed
that the injuries on PW-9 Niranjan Singh, PW-8 N.K. Parihar,
Constable Raj Kumar and Constable Shivshankar might have been
caused by hard and blunt object. In view of the above, there is no
evidence to indicate that the accused assaulted or used criminal
force on the trap party in execution of their duties or for the purpose
of preventing or deterring them in discharging their duties. In short,
none of the ingredients of Section 353 are attracted. The jostling
and pushing by the accused with an attempt to wriggle out, as is
clear from the evidence, was not with any intention to assault or
use criminal force.
30. In fact, it will be interesting here to contrast Section 353 of the IPC
with Section 186 of the IPC under which Section the appellant has
not been charged. Section 186 of the IPC reads as follows.
“186. Obstructing public servant in discharge of public
functions.- Whoever voluntarily obstructs any public
servant in the discharge of his public functions, shall be
948 [2024] 8 S.C.R.
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punished with imprisonment of either description for a term
which may extend to three months, or with fine which may
extend to five hundred rupees, or with both.”
31. To take cognizance of Section 186, the procedure under
Section 195(1)(a)(i) of the Cr.P.C. ought to have been followed.
There is not even a complaint by the officer against the appellant for
any offence having been committed under Section 186 of the IPC.
32. In view of the above, we have no hesitation in setting aside the
judgment of the High Court. The result would be that the appellant
would stand acquitted for the offence under Section 353 of the IPC.
The Conviction under Section 353 of the IPC and the sentence
imposed are set aside. The appeal is allowed. The bail bonds shall
stand discharged.
Result of the case: Appeal Allowed.
†
Headnotes prepared by: Aandrita Deb, Hony. Associate Editor
(Verified by: Shadan Farasat, Sr. Adv.)
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