IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.MC.No. 1948 of 2010(C) ------------------------------ CC.130/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... PETITIONER(S): ACCUSED ----------------------------- 1. MANILAL, AGED 42 YEARS, S/O.VIJAYAN, LAKSHMI BAVAN, NEAR CHENGANDAM BRIDGE VARANADU P.O., CHERTHALA. 2. SHAIJU, AGED 35 YEARS, S/O.DASAN, VALIMPARAMBU VEEDU, MAYATHARA, KANJIKKUZHI. BY ADVS. SRI.ABDUL JALEEL.A SMT.M.A.SULFIA RESPONDENT(S): COMPLAINANT ------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTED BY ASSISTANT INSPECTOR OF POLICE, ARTHUNGAL, ALAPPUZHA DISTRICT. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.1948 OF 2010 --------------------------------------------- Dated 31st August, 2010 O R D E R Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure A1 charge, taken cognizance by Judicial First Class Magistrate-II, Cherthala as C.C.130/2008 for the offences under Sections 20 and 21 of Protection of River Banks and Regulation of Removal of Sand Act, 2001. Cognizance taken was challenged on two grounds. Firstly, it was contended that learned Magistrate could not have taken cognizance on a final report, as cognizance could only be taken on a complaint and final report is not a complaint. Secondly, it was contended that Assistant Sub Inspector of Police who Crmc 1948/10 2 submitted the final report is not an officer authorized to file a complaint. Question whether cognizance could be taken on a final report submitted by the Police was referred to the Division Bench. Division Bench upheld the decision of this court in Abdul Azeez v. State of Kerala (2010 (1) KLT 394) and held that cognizance can be taken only on a complaint filed by an officer authorized under the Act and not on a final report submitted under Section 173(2) of Code of Criminal Procedure. Division Bench did not consider the question whether Assistant Sub Inspector of Police is an officer authorized under the Act, as that question was not referred to the Division Bench. Hence the petition is again posted before this court. When cognizance is taken on a final report submitted under Section Crmc 1948/10 3 173 of Code of Criminal Procedure, which is bad in law, cognizance taken can only be quashed. It is not necessary for this court to consider in this petition whether the officer who submitted the final report is an officer authorized under the Act. That question need be considered, if raised when a complaint is filed. Petition is allowed. Cognizance taken in C.C.130/2008 on the file of Judicial First Class Magistrate-II, Cherthala is quashed. It is made clear that quashing of the cognizance taken will not bar the officer authorized under the Act to file a complaint or the Magistrate to take cognizance of the offence on such complaint. M.SASIDHARAN NAMBIAR, JUDGE. Crmc 1948/10 4 uj.