The ingredients of offence under Section 353 are: 1. The victim must be a public servant. 2. When assaulted, he must have been acting i) In execution of his official duty; ii) And the assault was intended to deter him from discharging his duties; iii) That it was in consequence of anything done or attempted, to be done by such person in the lawful discharge of his duty.
Under Section 353, the public servants get protection when he acts in the discharge of a duty imposed by law on him. An act which is the very contrary of the duties of a public servant cannot be said to be done by a public servant while acting or purporting to act in the discharge of his official duties. An assault on a public servant who is not discharging a duty imposed on him by law when he is assaulted falls under Section 352. Section 353 has no application when the public servant was acting under an order which was illegal although he might not himself have been aware of that illegality. Section 353 will not protect the public servant for an act done in good faith under colour of his office. A bill collector, when attempting to enforce a warrant in excess of what could be recovered by distress cannot be said to be acting in lawful discharge of his public duty.
In P. Rama Rao v. State of Andhra Pradesh [1984 Cr.LJ 27, Andhra], where the police officer asked the accused to stop his car, but the accused fled away hitting the left mudguard of the motor cycle on which the police officer was sitting, it was held that no offence of assault on public servant or using criminal force so as to deter him from discharging his duties as public servant was made out.
In State of Tripura v. Sashimohan [1977 Cr.LJ 1663 (Gau.)], a forest officer who was authorized to arrest a person only when the offence was committed within five miles of the border arrested the accused when there was no evidence that the offence was committed within the five miles belt. It was held that the arrest not being justified, the accused did not commit any offence under Section 353 by inflicting some injuries on the officer during a scuffle.
Offence under Section 353 of IPC is cognizable, non-bailable and is triable by any Magistrate.