IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 Crl.MC.No. 945 of 2011() ----------------------------- (CRIME NO.329/2010 OF NORTH PARVUR POLICE STATION, ERNAKULAM DISTRICT) ..... PETITIONER(S): ACCUSED ------------------------------- NISHAD, AGED 21 YEARS, S/O. ABDUL KARIM, VALATHU VEEDU, MATTUPURAM, MANJALI. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM(CRIME NO.329/2010 OF NORTH PARVUR POLICE STATION, ERNAKULAM DISTRICT). BY PUBLIC PROSECUTOR SRI.K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.945 of 2011 -------------------------------------- Dated this the 24th day of March, 2011. ORDER Petitioner is accused in Crime No.329 of North Paravur Police Station and C.C.No.861 of 2010 of the court of learned Judicial First Class Magistrate, North Paravur for offence punishable under Section 20 of the Protection of River Banks and Regulation of Removal of Sand Act, 2011 (for short, “the Act”). Petitioner seeks to quash proceeding against him on the contention that learned Magistrate has taken cognizance on a police report under Section 173(2) of the Code of Criminal Procedure (for short, “the Code”) in violation of Section 25 of the Act and against the decisions of this Court in Abdul Azeez v. State of Kerala (2010(1) KLT 394) and Ismail v. State of Kerala (2010 (3) KLT 706). Learned counsel pointed out that under Section 25 of the Act no court could take cognizance of the offence punishable under the Act except on a complaint preferred by an officer authorised in that behalf by the Government or the District Collector. According to the learned counsel in this case the learned Magistrate took cognizance on a report filed by the Police under Section 173(2) of the Code and hence, it is vitiated. Learned counsel contended that Annexure-2, final report is liable to be quashed. I have heard learned Public prosecutor also. 2. There could be no doubt that cognizance could be taken under Crl.MC No.945/2011 2 Section 25 of the Act only on a complaint as referred to therein. The Police Officer is an officer authorized in that behalf by notification issued by the State Government. Then the question is whether Annexure-2 is a final report under Section 173(2) of the Code or is a private complaint. Learned counsel points out that in Annexure-2 it is stated to be a charge sheet (………………….) and crime number is also given. 3. Under Section 2(d) of the Code, ‘complaint’ is defined as any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report (under 173(2) of the Code). Under Section 173(2) of the Code the Police Officer is to submit a report as referred to therein on conclusion of investigation. I have gone through Annexure-2 which ofcourse is styled as a charge sheet. But, it is not the form but substances that matters. Nowhere in Annexure-2, it is stated that it is a report filed under Section 173(2) of the Code. Instead, it is merely stated to be a charge sheet. A charge sheet is an accusation that a person has committed an offence. In the present case Annexure-2 stated that petitioner has committed the offence. 4. Investigation by the Police is not prohibited under the Act. Only thing is that the cognizance must be on a complaint preferred by the officer authorized. On going through Annexure-2, I am unable to accept the contention Crl.MC No.945/2011 3 that it is a final report under Section 173(2) of the Code so that cognizance taken by the Magistrate is illegal. Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks