IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.MC.No. 1492 of 2009() ------------------------- CC.1580/2002 of JUDL.MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR .................... (CRIME NO.117/2002 OF ELOOR POLICE STATION) PETITIONER(S): ACCUSED: ------------------------------------------ JAFAR, S/O SAIDHU MUHAMMED,AGED 33 YEARS, PADAPANTHIPARAMBU, VADAKKUM BHAGOM KARA, ELOOR VILLAGE. BY ADV. MR.P.M.ZIRAJ RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM REP.BY SUB INSPECTOR OF POLICE, ELOOR POLICE STATION IN CRIME NO.117/2002. BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1492 OF 2009 ------------------------------------------ Dated 21st May 2009 O R D E R Petitioner is accused in Crime No.117/2002 of Eloor Police Station. Case against petitioner is that he committed offence under Section 188 of Indian Penal Code and 17(4) read with section 22 of Kerala Protection of River Banks Regulation of Sand Mining Act, 2001. Judicial First Class Magistrate, North Paravur took cognizance of the offence on a complaint filed by Sub Inspector of Police, Eloor on 18/11/2002. This petition is filed to quash the FIR as well as Annexure-II final report for the reason that on 18/11/2002, when the offence was taken cognizance the Sub Inspector has no authority to file a complaint under Section 25 and only as per gazette notification G.O(Ms) No.11/07/RD dated 10/1/2007 published in Kerala Gazette dated 18/1/2007, Station House officers were given power to file a complaint under Section 25 of the Kerala Protection of River Banks Regulation of Sand Mining Act and therefore Annexure-I FIR and Annexure-II charge sheet are to be CRMC 1492/09 2 quashed. Reliance was placed on the decision in Rijo v. State of Kerala and another (2008 (1) KLT 664). It was also argued that offence under Section 188 cannot be taken cognizance unless sanction was given by the court as provided under Section 195(1) and as no sanction was obtained, case for the offence under Section 188 of Indian Penal Code is also liable to be quashed. Learned counsel vehemently submitted that as sanction is necessary under Section 195(1) of Code of Criminal Procedure and no sanction was obtained from the court, cognizance of the offence under Section 188 of Indian Penal Code could not have been taken. Learned Public Prosecutor submitted that in view of the decision of this court in Rijo's case submission of the petitioner is tenable. 2. In view of the decision of this court in Rijo's case the petition can only be allowed. The cognizance of the offence was taken on 18/11/2002. But Sub Inspector was authorised to file complaint under Section 25 by notification only w.e.f. 18/1/2007. Hence learned Magistrate cannot legally take cognizance of the offence on 18/11/2002. It was bad. So also as no sanction was obtained under Section 195(1) of Code of Criminal Procedure, cognizance of the offence under Section 188 of Indian Penal Code CRMC 1492/09 3 also could not have been taken by the Magistrate in 2002. Hence the petition is allowed. Annexure-I FIR and Annexure-II charge sheet were quashed as the Sub Inspector was not authorised to file a complaint at that time and the Magistrate could not have taken cognizance of the complaint. M.SASIDHARAN NAMBIAR, JUDGE. uj.