IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 Crl.MC.No. 3548 of 2011() ------------------------------- CC.349/2008 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... PETITIONER(S): ACCUSED NO.4 ------------------------------------- SALIM,AGED 38 YEARS, S/O.ABOOBACKER, KANELI HOUSE,KANJOOR KARA, KANJOOR VADUKKUMBHAGOM VILLAGE, ALUVA TALUK. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S): COMPLAINANT -------------------------------------- THE STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE,KALADY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SMT. HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs CRMC. NO. 3548/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1:COPY OF THE FINAL REPORT IN C.C NO.349/2008 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR, ARISING OUT OF CRIME NO.425/2002 OF KALADY POLICE STATION. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE. svs N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3548 of 2011 ----------------------------------- Dated this the 2nd day of November 2011 O R D E R There were altogether four accused in the charge sheet filed by the police in Crime No.425/2002. It is stated that A1 expired and that A3 who faced the trial was acquitted by the learned Magistrate. A2 and A4 were reported to be absconding and therefore, the case against them was split up and refiled. The petitioner herein is the 4th accused therein. The learned counsel for the petitioner submits that since the cognizance was taken based on the final report filed under Sec.173(2) Cr.P.C., that part of the cognizance taken by the learned Magistrate with regard to the offence under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 cannot be sustained. The cognizance under that Act can be taken only on a complaint filed by any of the officers mentioned therein. I accept that submission. The prosecution against the accused for offence punishable under the provisions of the aforesaid Crl.M.C. No.3548 of 2011 -: 2 :- Act will stand quashed. 2. But the charge sheet filed against the accused discloses the offence punishable under Sec.379 r/w 34 IPC also. Learned counsel for the petitioner submits that, though that section is also incorporated, there are no sufficient ingredients to attract that offence. The petitioner can very well urge that contention by filing an application for discharge before the learned Magistrate. Therefore, the entire case cannot be quashed. Hence, this Crl.M.C. is allowed in part. Further proceeding against the petitioner for the offence punishable under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 will remain quashed. The learned Magistrate will proceed in accordance with law with regard to the offence punishable under Sec.379 r/w 34 IPC. N.K.BALAKRISHNAN, JUDGE. Jvt