Merely Being In Uniform Does Not Attract S.353 IPC: Kerala High Court Grants Anticipatory Bail To Lawyers Accused Of Assaulting Police Officer

The Kerala High Court allowed the anticipatory bail application moved by two lawyers accused of assaulting a police officer in uniform while he was at the Court in relation to an ongoing enquiry against him. 

Justice P.V. Kunhikrishnan decided to allow the plea upon suspecting that they were booked under Section 353 of the Indian Penal Code (IPC) in a deliberate attempt to implicate them in a non-bailable offence, particularly since that was the only non-bailable offence alleged against them. 

"To attract Section 353 IPC, one of the main ingredients is that the assault or criminal force should be to deter the public servant who was discharging his official duty. Admittedly, the de facto complainant was attending an enquiry based on a complaint filed by a lawyer. At no stretch of imagination, it can be said that the defacto complainant was in lawful discharge of his duty as a public servant, at the time of the alleged incident. Simply because he is in uniform, Section 353 IPC will not attract."

A lawyer was taken into custody by the Cherthala Police being an accused in a traffic incident after which he alleged ill-treatment from the police officers. Several advocates had gathered in front of the Police Station demanding his release. 

An enquiry was accordingly launched by the higher Police Officers and the Advocate General on 15.02.2021 at the office of the Advocate General, within the premises of the High Court. The said lawyer and a Circle Inspector of Police had reached the High Court to attend the enquiry. 

After the enquiry, when the Circle Inspector was on his way out of the court premises, several lawyers including the petitioners allegedly formed an unlawful assembly, committed a riot armed with deadly weapons and in the prosecution of their common object, hurled abuses at him and assaulted him. The petitioners and others were booked for Sections 143, 147, 148, 353, 323, 294(b) r/w 149 of IPC. 

Advocate Babu S. Nair appeared for the petitioners and submitted that the only non-bailable offence alleged against the petitioners is under Section 353 IPC and that even if the entire allegations are accepted, the offence under Section 353 is not made out. He argued that Section 353 was included with a malafide intention to implicate the lawyers in a non-bailable offence.

Public Prosecutor Sreeja V appeared for the State in the matter. 

The Court noted that the only non-bailable offence alleged against the petitioners was under Section 353 IPC and agreed with the petitioners. 

"I think there is some force in the argument of the petitioners that Section 353 IPC is added just to implicate lawyers in non-bailable offence. The superior officers should look into this matter and take appropriate action in accordance to law. I do not want make any further observation about the merit of the case. I leave it there. The Officer is free to conduct an enquiry untrammelled by any observation in this order."

However, it was clarified that these observations were made strictly in the limited scope of considering the bail application. As such, it was ordered that if the petitioners were arrested, they should be released on self-bond of Rs. 50,000/. 

Case Title: Rilgin V. George & Anr v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 282

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