S. Velu Pillai, J.
1. This is a petition by accused 1 and his father, accused 3, to revise a judgment of the Sub-Divisional Magistrate, Trivandrum, by which, on appeal, he affirmed the convictions of the accused by the Stationary Second Class Magistrate, Neyyattinkara, under Section 353, I.P.C. and under Section 353 read with S. 109, I. P. C. respectively. In appeal, the accused were sentenced to pay a fine of Rs. 200/- each and in default, to undergo simple Imprisonment for two months.
2. The broad facts are, that when Pw. 1 a Co-operative Extension Officer was proceeding to Trivandrum in a State Transport Bus, after 5 P. M., after attending a meeting of a Co-operatice Society, the first accused assaulted him at the instigation of the third accused, at the Pulluvila bus stop. The courts below have entered the conviction under Section 353, I, P. C. on the finding, that Pw. 1, while travelling in the bus, was executing his duty as a public servant. His headquarters and his residence are at Athiyannoor, a few miles away from Trivandrum. From the meeting place, he had to come to Trivandrum, and then take the bus to Athiyanpor. The principal question for decision in this revision petition is whether Pw. 1 was executing his duty as a public servant, when he was travelling in the bus.
3. It was not disputed, that he was executing his duty as such, while attending the meeting of the Co-operative Society. According to Pw. 1, his duty extended till he submitted the report of the meeting to the officer at his headquarters. The learned Sub-Divisional Magistrate took the view, that Pw. 1must be deefined to have been on duty, till his return journey to the headquarters was completed. Section 353, I.P.C. has the following words, which alone are material for this case:
'Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant.......'
No decided case exactly covering the point for determination was placed before me. The plain meaning of the above seems to me to be, that the public servant must be actually executing his duty as such. The object of the Indian Penal Code in prescribing a severer sentence for assault on a public servant, has been stated thus, by H. S. Gour in The Penal Law of India, 1953 Edition, Volume 2, page 1568:--
'This offence, consists of assaulting or using criminal force on a person who is at the time of the offence a public servant in the execution of his duty. As such, he is often exposed to considerable risks in the discharge of his official duties, and the law, therefore, throws round him a special protection by prescribing specially deterrent sentences to those whooffend against the majesty o the law of which he is a minister. As, however, it is not intended to encircle him with a perennial halo of sanctity and inviolability, the Code has throughout, in referring to him, protected him only when he is in the execution of duty, he being left at other times to have recourse to the ordinary law applicable to all alike.'
It is somewhat far fetched to extend this principle to the present case, whether Pw. 1 was travelling home, or proceeding to his headquarters. Travelling as such was not part of his official duty, though of course, in order to attend to such duty, he had to do some travelling that day. In my opinion, the above provision can apply only, when the public servant is discharging the duty imposed on him by virtue of his office; in other words, he must be performing an act, which is So integrally connected with the duty attached to his office as to form part of it. It is too much to say, that he was travelling by virtue of the office which he held. The superior protection afforded to a public servant was not available to Pw. 1 under such circumstances; he must rank with any other citizen of the country, when he is not engaged in the performance of his official duty. In this view, the conviction under Section 353, I. P. C. cannot stand, but must be altered to conviction under Section 352, I. P. C.
4. The second contention of counsel for the accused is that the words employed by the third accused in consequence of which the first accused was said to have assaulted Pw. 1 are, not per se words of instigation. Judging from the nature of the words, their effect must depend on the context in which they were used. The two courts have found for a fact, that the words amounted to instigation by the third accused.
5. The third point, that the first accused could not have known that Pw. 1 was a public servant, was not raised in the memorandum of revision, and does not arise, in view, of my finding, that Pw. 1 was not executing his duty as a public servant at the material time.
6. The learned counsel then prayed, that I may apply the provisions of Section 562, Crl. P. C. so far as the first accused is concerned. No material was placed before me, as to the character and antecedents of the first accused, which are relevant for applying this provision. I do not find my way to grant this prayer. But the convictions having been altered the sentences call for modification. I therefore convict the first accused under Section 352, I. P. C., and sentence him to pay a fine of Rs. 100/- and in default of payment of fine, to undergo simple imprisonment for one month. I also convict the third accused under Section 352, I. P. C. read with Section 109, I. P. C, and sentence him to pay a fine of Rs. 100/-, and in default of payment of fine, to undergo simple imprisonment for one month. This revision petition is disposed of as above.