IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 Crl.MC.No. 112 of 2010() ------------------------ ST.151/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... PETITIONER(S): ACCUSED NO.4: -------------------------------------------------- ANILKUMAR S/O. BHASKARAN, CHETHAYIL HOUSE, P.O. KANDASWARAM KADAVU,KARAMUCK, THRISSUR DISTRICT BY ADV. MR.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HGIH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.112 OF 2010 ------------------------------------------ Dated 13th January 2010 O R D E R Petitioner is the fourth accused in C.C.761/2003 on the file of Judicial First Class Magistrate, Pattambi taken cognizance for the offences under Section 12(6) and 23 read with Section 20 of Kerala Protection of River Banks and Regulation of Removal of Sand Act (hereinafter referred to as the Act). As the petitioner was absconding, the case as against him was split up and re-filed as S.T.151/2007 and accused 2,3,5 and 6 were tried by the learned Magistrate. By Annexure-D judgment dated 27/1/2007 all those accused were acquitted. This petition is filed under Section 482 of Code of Criminal Procedure Crmc 112/10 2 to quash the case now pending as L.P.109/2009, contending that in view of the order of acquittal as against the other accused and as no complaint was filed as provided under Section 25 of the Act, when cognizance taken on the final report submitted under Section 173(2) is bad, even if petitioner is to be tried, there is no likelihood of a conviction and therefore, the case is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure-C final report shows that prosecution case is that six accused on 22/5/2002 was found on a surprise search conducted by the Tahsildar, Palakkad and Depety Superintendent of Police, Vigilance and Anti Corruption Bureau, Palakkad, loading six Crmc 112/10 3 lorries of river sand without the permit and thereby they committed the offences. Annexure-D judgment shows that all the remaining five accused were already acquitted after trial. 4. Section 25 of the Act provides that cognizance of an offence under the Act could be taken only on a complaint filed by the authorised officer. Learned Magistrate has taken cognizance on Annexure-C final report filed by the Sub Inspector of police, Thrithala after investigation under Section 173(2) of Code of Criminal Procedure. As held by this court in Moosakoya v. State of Kerala (2008 (1) KLT 538), learned Magistrate cannot take cognizance of the offence under the Act, except on a complaint. In such circumstances, even if petitioner is to be tried there cannot be a successful prosecution. Hence it is liable to Crmc 112/10 4 be quashed. Petition is allowed. L.P.109/2009 on the file of Judicial First Class Magistrate, Pattambi is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.