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
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-: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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
