Offense Of Assaulting Public Servant Not Attracted Unless They Are Acting Lawfully Or Doing Duty Mandated By Law: J&K High Court

A bench of Justice Javed Iqbal Wani explained,

“… an act of a public servant which is very contrary of the duties of such public servant cannot be said to have been done by a public servants while acting or purporting to act in discharge of an official duty and even an act done in good faith under the colour of the office of a public servant cannot said to be by any sense of imagination, an act by a public servant in discharge of his duty”

Justice Wani made these observations while quashing the FIR and charge sheet against one Bashir Ahmad Mir, who was accused of obstructing municipal officials during a demolition drive.

The controversy arose when Mir, the petitioner's brother, constructed a guest house in 2017. To facilitate parking, he began constructing a ramp, which municipal authorities objected to, leading him to approach the High Court. The court initially restrained interference with the construction and later permitted modifications to the parking access.

Despite this, on December 4, 2017, municipal officials attempted to demolish the ramp. Mir, who had been entrusted with protecting the property, resisted their actions. A portion of the structure was still demolished, prompting protests from locals. Days later, Mir was summoned by the police and informed that an FIR had been registered against him based on a complaint by the municipal authorities.

Mir challenged the FIR as a misuse of legal provisions, arguing that he was falsely implicated for resisting an unlawful demolition in violation of the High Court's orders. He contended that the municipal officials acted beyond their authority and in defiance of judicial directives.

The State, defending the FIR, maintained that Mir had obstructed public servants from discharging their official duties, justifying the charges under Sections 353, 323, and 427 RPC.

Meticulously analysing the scope of Section 353 RPC the court emphasised that for the offence to be established, the public servant must be acting lawfully in the discharge of his duty. It explained that if a public servant is not performing a duty imposed by law, his actions do not attract the protection of Section 353 RPC.

“Since nothing is forthcoming from the record of the case set up by the prosecution against the petitioner herein that the officials of Municipal Authority on the day of occurrence were acting in discharge of a public duty imposed by law upon them, it can safely be said and held that the offences under Sections 353 and 323 are not made out for lack of requisite essential ingredients”, the court remarked.

Additionally the court found no medical record to substantiate the charge under Section 323 RPC (voluntarily causing hurt) and Section 427 RPC (mischief causing damage).

In view of these findings the court concluded that the prosecution had failed to establish any credible basis for the charges and, relying on the Supreme Court's judgment in State of Haryana v. Bhajan Lal, quashed the FIR and charge sheet against Mir.

Case Title: Bashir Ahmad Mir Vs State Through P/s Safa Kadal

Citation: 2025 LiveLaw (JKL) 44

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