ORDER
R.K. Dash, J.
1. The petitioners, employees of the Forest Department by filing this case under Section 482 Cr. P. C. have sought to quash the cognizance of the offence taken by the learned S.D.J.M., Athagarh under Section 353/34 I. P. C. in 1. C.C. No. 15 of 1994 filed by the Conservator of Forest, Angul, opposite party herein.
2. For resolution of the controversy and to appreciate the contentions raised at the Bar. it is necessary to have a glimpse on the facts adumbrated in the complaint. On the night of 15-7-1993 while the complainant-opposite party was performing patrol duty in the Athagarh Forest Division area, found three trucks loaded with round timbers and firewood proceeding towards Cuttack. He signaled to stop those vehicles, but they did not so. He made a chase and apprehended them near the gate. To check those vehicles, he sought the assistance of the petitioners who were on duty at the gate, but they did not pay any head. Ultimately he checked the vehicles alone in course of which a young man suddenly emerged with a motor-cycle and threatened to take away his life, if any action was taken in his clandestine timber business and so saying, he dragged him out of the check gate premises. The petitioners though were very much present during the occurrence, but were mute spectators. They did not come to his rescue nor did they co-operate and render any help. For their such inaction and indifference, he suspected them to have hands in smuggling of timbers.
3. Making all allegations, the opposite party lodged a written report to the local police whereupon a case under Section 353, 326 and 536 read with Section 34 I.P.C. was registered and investigated into. However, the police submitted charge-sheet only against one and not against the petitioners. So, he tiled a separate complaint whereupon the learned Magistrate having conducted enquiry under Section 202 Cr. P.C. took cognizance of the offence under Section 353/34 I.P.C. vide order dated 23-11-1994 and issued process against the petitioners for their appearance.
4. Shri S.K. Pachi, learned counsel for the petitioners, strenuously contended that the allegations made in the complaint is false, frivolous, vexatious and do not constitute any offence and, therefore, cognizance of the offence taken by the Magistrate under Section 353/34 I.P.C. should be quashed.
On the other hand, Shri D. Patra, learned counsel for the complainant-opposite party, supporting the impugned order of the Magistrate urged that since materials collected during the enquiry disclosed an offence under Section 353/34 I. P. C. the learned Magistrate is perfectly justified in taking cognizance of the same.
5. Law has been well settled by the Hon’ble Supreme Court in a. catena of decisions that High Court in exercise of inherent powers under Section 482 Cr.P.C. can quash a proceeding, if it is of the opinion that continuance of such proceeding would amount to abuse of process of Court or that the interest of justice calls for such interference. Exercise of inharent powers to quash the proceeding instituted on complaint is called for only in case where the complainant does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not make out the offence of which the Magistrate has taken cognizance, it is open to the High Court tp quash the same in exercise of inherent powers. However, while doing so, the Court should not noticulously analyse the case to find out whether it would and in conviction or not. On a reading of the complaint and statements recorded on oath if it appears prima facie that ingredients of the offence/offences are disclosed, and there is nothing to show that complain is mala fide, frivolous or vexatious in that event no interference by the High Court is called for. (See J.T. 1995 (4) SC 124 Shri Ganesh Narayan Hegde v. Shri S. Bangarappa, AIR 1968 SC 706, Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre , AIR 1989 SC 2222, State of U.P. through CBI SPC, Lucknow v. R.K. Srivastava, J.T. 1995 (7) SC.299 Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill.
6. In view of the aforesaid pronouncement of the Apex Court the question arises whether in the present case the uncontroverted allegations as made prima facie established any offence, more particularly an offence under Section 353 IPC. In this context, it is necessary to refer to Section 353 IPC which reads as under:
Assault or criminal force to deter public servant 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 extent to two years, or with fine, or with both.” The essential ingredients of Section 353 I.P.C. are:-
(a) that the person who was assaulted or against whose criminal force was used is a public servant;
(b) that the assault or criminal force was used to such public servant; and
(c) that such assault or criminal force was used against the public servant incourse of execution of his duty as such public servant, or that it was committed with the intent to prevent or deter him from discharging his duty or in consequence of anything done or attempted to be done by him in lawful discharge of his duty.
7. Applying the aforesaid tests to the present case, it cannot be said by any stretch of imagination that in action or indifference of the petitioners is not rendering any help to the opposite party in search and seizure of the vehicles squarely falls within the mischief of Section 353 IPC. I am, therefore, of the considered opinion that it is a fit case where the Court in exercise of inherent power should quash the impugned order of the learned Magistrate whereby he has taken cognizance under Section 353/34 IPC against the petitioners.
8. In the aforesaid premises, the impugned order of the learned Magistrate dated 23-11 -1994 passed in I.C.C. No. 15 of 1994 is quashed and the Misc. Case is allowed.
