Kerala High Court
Nishar vs State Of Kerala on 17 July, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 17TH DAY OF JULY 2025 / 26TH ASHADHA, 1947
CRL.REV.PET NO. 2230 OF 2014
AGAINST THE JUDGMENT DATED 10/7/2014 IN Crl.A NO.529
OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT - VII
ARISING OUT OF THE JUDGMENT DATED 11/6/2010 IN CC NO.438 OF
2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-III,NEYYATTINKARA.
REVISION PETITIONER/APPELLANT/ACCUSED:
NISTHAR
S/O.MOIDEENKHAN, MANIACHIRATHOPPU,
ERAKATHU VEEDU, BALARAMAPURAM,
PALLICHAL VILLAGE.
BY ADV SRI.R.T.PRADEEP
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.E.C.BINEESH, SR.PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 15.07.2025, THE COURT ON 17.07.2024 PASSED THE
FOLLOWING:
Crl.R.P.No.2230/2014
2025:KER:52573
-:2:-
O R D E R
This criminal revision petition has been filed challenging the concurrent finding of conviction and sentence in a prosecution under Sections 506(i) and 353 of IPC.
2. The petitioner is the accused in CC No.438/2004 on the files of the Judicial First Class Magistrate Court-III, Neyyattinkara (for short, the trial court). He faced trial for the offences punishable under Sections 294(b), 506(i) and 353 of IPC. The case of the prosecution in short is that on 31/12/2003 at 12.30 p.m., when the de facto complainant/Food Inspector of Neyyattinkara Circle went to the shop of the petitioner to take sample of milk, the petitioner used obscene language against her, used criminal force and assaulted her with intention to deter her from discharging her official duties. It is further alleged that the petitioner criminally intimidated her by threatening to cut her leg off while she was discharging her official duty. Crl.R.P.No.2230/2014
2025:KER:52573 -:3:-
3. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P4. No defence evidence was adduced. After trial, the trial court found the petitioner guilty under Sections 506(i) and 353 of IPC and he was convicted for the said offences. He was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of `2,500/- for the offence u/s 353 of IPC. He was further sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of `2,500/- for the offence u/s 506(i) of IPC. In case of default of payment of fine, the accused was directed to undergo simple imprisonment for a further period of one month each under the above said counts. The trial court found him not guilty for the offence under Section 294(b) of IPC. He was acquitted of that offence. The petitioner challenged the conviction and sentence before the Additional District and Sessions Court - VII, Thiruvananthapuram in Crl.Appeal No.529/2010 (for short, the appellate court). The appellate court dismissed the appeal. This revision petition has been filed challenging the judgments of the trial court as well as Crl.R.P.No.2230/2014 2025:KER:52573 -:4:- the appellate court.
4. I have heard Sri.R.T.Pradeep, the learned counsel for the petitioner and Sri.E.C.Bineesh, the learned Senior Public Prosecutor.
5. The learned counsel appearing for the petitioner impeached the findings of the trial court as well as the appellate court on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that the conviction was based solely upon the interested testimony of PW1, and two independent witnesses who were examined as PW2 and PW3 turned hostile and did not support the prosecution case. The learned counsel for the petitioner relying on the observations in the judgment of the trial court in CC No.7/2004 in which the petitioner was acquitted for the offences registered against him under the Prevention of Food Adulteration Act, 1954 (for short, the PFA Act) and Prevention of Food Adulteration Rules, 1955 (for short, the PFA Rules) argued that the conviction under Sections 353 and 506(i) of IPC can no more be sustained. The learned Crl.R.P.No.2230/2014 2025:KER:52573 -:5:- counsel also submitted that prejudice has been caused to the petitioner for not clubbing the case covered by CC No.7/2004 and the instant case together invoking Section 210 of Cr.P.C. At any rate, the substantive sentence of imprisonment is excessive, added the learned counsel. The learned Public Prosecutor on the other hand supported the findings and verdict handed down by the trial court as well as the appellate court and argued that necessary ingredients of Sections 353 and 506(i) of IPC had been established and the prosecution had succeeded in proving the case beyond reasonable doubt.
6. The de facto complainant who was examined as PW4 was the Food Inspector of Neyyattinkara Circle during the time of inspection. The incident took place on 31st December, 2003 at 12.30 p.m at the shop of the petitioner. It is not in dispute that PW4 in discharge of her official duty went to the shop of the petitioner to take a sample of the milk kept therein under the PFA Act and PFA Rules. The prosecution allegation is that when she enquired with the petitioner whether he was selling any other Crl.R.P.No.2230/2014 2025:KER:52573 -:6:- brand of milk other than Milma, he got infuriated and showered abusive language against her. He then shouted at her stating that she does not have any authority to inspect the shop. She further deposed that when she attempted to enter into the shop to take samples, the petitioner again threatened her using abusive language. She was threatened that if she enters the shop, he will chop off her legs. He also threatened her that he would destroy her family. Again when she attempted to enter the shop, the petitioner obstructed her and threatened her that he will see that she will be removed from her job within 24 hours. It has come out in evidence that thereafter she entered into the shop, purchased two packets of Milma milk, samples were drawn and sent for chemical examination. PW4 preferred complaint before the court against the incident which was referred to police and PW5, S.I. of Police, Balaramapuram Police Station, Thiruvananthapuram registered Ext.P2 FIR against the petitioner under Sections 294(b), 506(i) and 353 of IPC. On the basis of another complaint given by the Food Inspector, another case was registered against Crl.R.P.No.2230/2014 2025:KER:52573 -:7:- the petitioner and he was prosecuted under Sections 7(iii), 10(1)
(a)(i) 16(1)(a)(c)(d) of the PFA Act and Rule 50(I) and Rule 9(a)(b) of the PFA Rules in CC No.7/2004 before the trial court. The copy of the judgment of the said case produced by the learned counsel for the petitioner before this court shows that the petitioner was acquitted in the said case.
7. The prosecution mainly relied on the evidence of PW4, the Food Inspector and also the evidence of PW1, who accompanied PW4 to find the petitioner guilty under Sections 353 and 506(i) of IPC. Two independent witnesses examined as PW2 and PW3 did not support the prosecution case. The evidence given by PW4 has been narrated in the previous paragraph. Even though PW4 was cross-examined in length, nothing tangible could be extracted from her testimony to discredit her version. It is pertinent to note that the presence of PW4 at the shop of the petitioner at the time of the incident is admitted. She specifically deposed about the manner in which the incident occurred. She clearly deposed regarding the assault made by the petitioner in Crl.R.P.No.2230/2014 2025:KER:52573 -:8:- order to deter her from her official duty. She also stated about the threat made by the petitioner. She specifically deposed that the petitioner used abusive language and threatened her when she attempted to do her official duty. It has come out in evidence that when she attempted to enter the shop, the petitioner obstructed her threatening that if she enters the shop, her legs would be chopped. It has also come out in the evidence of PW4 that the petitioner again tried to prevent her from proceeding with the duty inside the shop. The trial court as well as the appellate court found that her evidence is clear, consistent and credible. I see no reason to take a different view in this revision petition. The evidence of PW4 gets corroboration from PW1. PW1 was working as a peon and he accompanied PW4 to the shop of the petitioner. He deposed that when PW4 attempted to take samples from the shop, the petitioner abused her by using obscene language. He further deposed that the petitioner did not permit PW4 to take samples from his shop. The evidence of PWs1 and 4 would clearly show that the petitioner by his gesture and Crl.R.P.No.2230/2014 2025:KER:52573 -:9:- words had caused PW4 to apprehend that he was about to use criminal force on her. It has also come out in evidence that the petitioner using abusive language threatened to chop off the legs of PW4 and deterred her from entering into the shop and further proceeding with her official duty. It has further come out in evidence that the petitioner has threatened PW4 to injure her and her reputation. PW4 has deposed that these acts of the petitioner caused alarm to her. Hence, the offence under Sections 353 ad 506(i) of IPC are clearly attracted.
8. The learned counsel for the petitioner has produced the copy of the judgment of the trial court in CC No.7/2004 dated 30th January, 2021. The petitioner was prosecuted for the offences under Sections 7(iii), 10(1)(a)(i) 16(1)(a)(c)(d) of the PFA Act and Rule 50(I) and Rule 9(a)(b) of the PFA Rules. The offence under Section 16(1)(c) is attracted when the accused prevents a food inspector from taking a sample as authorized by the Act and Section 16(1)(d) is attracted when accused prevents a food inspector from exercising any other power conferred on him Crl.R.P.No.2230/2014 2025:KER:52573 -:10:- under this Act. The learned counsel for the petitioner submitted that since the petitioner was charged with the offence under Section 16(1)(c) and (d) of the PFA Act, he cannot be prosecuted under Section 353 of IPC. In support of his submission, the learned counsel relied on the decision of the Supreme Court in Sharat Babu Digumarti v. Government (NCT of Delhi) [(2017) 2 SCC 18]. The learned counsel further submitted that the trial court ought to have clubbed CC No.7/2004 and the instant case invoking Section 210 of Cr.P.C. and failure to do the same has caused prejudice to the petitioner. I cannot subscribe to the said argument at all. The offence under Section 16(1)(c) and (d) of the PFA Act and offence under Section 353 of IPC are totally different. The offence under Section 16(1)(c) and (d) of PFA Act deals with preventing a food inspector from taking a sample or exercising any other power conferred by the Act whereas offence under Section 353 deals with assault or criminal force to deter a public servant from discharging his official duty. It was held in Sharat Babu Digumarti (supra) that the special law shall prevail Crl.R.P.No.2230/2014 2025:KER:52573 -:11:- over the general law and when the various provisions in the IT Act deals with obscenity in electronic form, the accused cannot be tried for the offence under Section 292 of IPC separately. The said dictum cannot be applied to the facts of the case inasmuch as the offence under Section 16(1)(c) and (d) of the PFA Act and Section 353 of IPC are totally different. For clubbing the two cases for trial invoking Section 210 of Cr.P.C., it is necessary that cognizance is taken by the Magistrate for any one of the offences against the accused in the complaint case and in the report of the police, who investigated the occurrence which led to the complaint case. (See Biju v. Ayyappan 2025 (4) KLT 168). Here, offences involved in both cases are not similar. The incident and occurrence are also not similar. Therefore, the provisions under Section 210 of Cr.P.C. cannot be applied. The learned counsel for the petitioner next submitted that there is a finding in paragraph 10 of the judgment in CC No.7/2004 that there was no obstruction caused to PW4 in her official duty and hence the conviction of the accused under Section 353 cannot be sustained. The said Crl.R.P.No.2230/2014 2025:KER:52573 -:12:- observation was made while prosecuting the petitioner for the offences under the PFA Act and the PFA Rules. Section 353 of IPC was not involved in CC No.7/2004. The observation was not made on any evidence let in by the prosecution in a prosecution under Section 353 of IPC. Therefore, the said observation does not have any relevance to the instant case.
9. It is well settled that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon reappreciation of evidence. Since there are concurrent findings of two courts, this court would be circumspect in invoking the revisional powers under Section 397 r/w Section 401 of Cr.P.C. It is only if the decision rendered by the trial court as well as the appellate court can be said to be either perverse, arbitrary or capricious, this court can invoke the power under Section 397 r/w Section 401 of Cr.P.C I have carefully gone through the entire records, evidence, proceedings and the judgments of the trial court as well as the appellate court. I find no impropriety or illegality therein warranting interference on the finding of Crl.R.P.No.2230/2014 2025:KER:52573 -:13:- conviction under the exercise of revisional powers vested with this court.
10. The learned counsel for the petitioner submitted that the petitioner is now aged 73 years and suffers from various ailments and hence the substantive sentence may be reduced. Considering the age of the petitioner, the entire circumstances of the case and the fact that the case has been pending for the last twenty one years, the substantive sentence of imprisonment imposed by the trial court and confirmed by the appellate court under Sections 353 as well as under 506(i) of IPC is reduced to three months rigorous imprisonment retaining the fine amount and default sentence. The substantive sentence shall run concurrently.
The criminal revision petition is allowed in part as above.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE Rp Crl.R.P.No.2230/2014 2025:KER:52573 -:14:- APPENDIX OF CRL.REV.PET 2230/2014 PETITIONER ANNEXURES Annexure I TRUE COPY OF JUDGMENT DATED 30.1.2021 IN C.C. NO.7/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, THIRUVANANTHAPURAM