S.353 IPC | Person In Exercise Of Right Sanctioned By Law Can't Be Said To Have Deterred Public Official From Discharging His Duty: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court has made it clear that a person is exercising his or her rights that are ordained by the law cannot be said to have deterred the official duty of a public servant, who under a mistaken belief, tried to stop such exercise of rights.

Justice Sanjay Dhar observed:

"It can never be the duty of a public official to prevent a person from exercising his/her right which is sanctioned by law."

The petitioner herein was charged under Section 447-A (trespass) and 353 (assault or criminal force to deter public servant from discharge of his duty) of Ranbir Penal Code for entering the residential premises of SPP, Budgam and quarreling, despite the security personnel trying to stop her.

The Court noted that the events transpired in the aftermath of a marital discord between the Petitioner and the SPP and that the Petitioner had obtained an order from the Court of Munsif, restraining her husband from interfering in her possession, occupation and enjoyment of his residences at Srinagar and Budgam.

In this light, the High Court observed that both the offences of trespass and obstructing public servant are not made out against the Petitioner. It observed,

"The petitioner, her right to reside there is protected by order dated 24.07.2015 passed by the civil court, according to which respondent No.2 has been directed not to interfere in her enjoyment of the said premises...Her entry in the house of her husband is certainly lawful which is backed by the sanction of order of the civil court. Therefore, even if we take the allegations made in the challan as correct at their face value, the documents produced on record by the petitioner tend to show that the offence of criminal trespass is not made out against her."

So far as offence under Section 353 is concerned, the Court said,

"The act of security personnel in preventing the petitioner from entering the house of her husband does not come within the purview of their lawful duties. In view of the fact that the documents produced by the petitioner tend to show that she is legally wedded wife of respondent No.2, the charge for offence under Section 353 of the RPC is also not made out against the petitioner."

In view of the above observations, the quashing petition was allowed.

Citation :2022 LiveLaw (JKL) 134

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