IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 Crl.MC.No. 547 of 2010() ----------------------------------- CC.561/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT,CHALAKUDY CRIME NO.73/2007 OF KORATTY POLICE STATION. .................... PETITIONERS/ACCUSED NO.1-2 ----------------------------------------------- 1. MARTIN, AGED 31 YEARS, S/O. OUSEPH, MOOLAN HOUSE, VAPPALASERY DESAM, ANGAMALY VILLAGE, ALUVA TALUK. 2. JINU, AGED 30 YEARS, S/O. VARGHESE, AREECKAL HOUSE, ANGAMALY DESOM, ALUVA TALUK. BY ADV. MR.K.SUNILKUMAR RESPONDENT/COMPLAINANT -------------------------------------------- THE STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KORATTY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/02/2010, ALONG WITH CRMC NO.638 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------------------ CRL.M.C.NOs.547 & 638 OF 2010 --------------------------------------------------------- Dated 23rd February 2010 O R D E R Petitioners in Crl.M.C.547/2010 are the accused in C.C.561/2007 on the file of Judicial First Class Magistrate, Chalakkudy. Petitioners in Crl.M.C.638/2010 are the accused in C.C.17/2008 on the file of Judicial First Class Magistrate, Perumbavoor. Petitions are filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that learned Magistrate has no jurisdiction to take cognizance of the offence on final reports when cognizance can be taken only on a complaint filed by authorised officer. 2. Learned counsel appearing for the petitioner and learned Public Crmc 547 & 638/10 2 Prosecutor were heard. 3. C.C.561/2007 was taken cognizance for the offence under Section 4(1)(A) read with Section 21(1) of Mines and Mineral (Development and Regulation) Act (hereinafter referred to as “M.M.D.R.Act”) on Annexure-A1 final report submitted by Sub Inspector of Police, Koratty on 17/2/2007. 4. C.C.17/2008 was taken cognizance by the learned Magistrate on Annexure-I final report dated 21/11/2007 filed by Sub Inspector of Police, Kalady for the offence under Section 4(1)(A) read with Section 21(1) of M.M.D.R.Act and Section 17(4) and 23 read with Section 20 of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. 5. Section 25 of Kerala Protection of River Banks and Regulation of Removal of Sand Crmc 547 & 638/10 3 Act, 2001 mandates that no court shall take cognizance of an offence under the Act, except on a complaint filed by an authorised officer under the Act. Similarly, Section 22 of M.M.D.R.Act provides that no court shall take cognizance of an offence under the Act, except on a complaint filed by an officer authorised under the Act. Cognizance in both the cases were taken not on complaints filed by the authorised officer, but on final reports submitted by the Sub Inspector of Police under Section 173(2) of Code of Criminal Procedure. Final reports do not show that reports were filed by the Sub Inspector, in his capacity as the authorised officer under the Act. Instead they were filed as Sub Inspector, who investigated the case under Section 173(2) of Code of Criminal Procedure. They cannot be Crmc 547 & 638/10 4 termed complaint as defined under Section 2(d) of Code of Criminal Procedure and could only be termed as final report as provided under Section 2(r) of Code of Criminal Procedure. If that be so, as against the mandate provided under Section 25 of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 and Section 22 of M.M.D.R.Act, learned Magistrate could not have taken cognizance of the offence. Legal position is settled by the decision of this court in Sherif and others v. Sub Inspector of Police, Konni and another (2010 (1) KLD 109) following the Division Bench decision in Moosakoya v. State of Kerala (2008 (1) KLT 538), approved by the Apex court in Jeevankumar Raut v. Central Bureau of Investigation (AIR 2009 SC 2763). Hence cognizance taken can only be quashed. Crmc 547 & 638/10 5 Petitions are allowed. C.C.561/2007 on the file of Judicial First Class Magistrate, Chalakkudy and C.C.17/2008 on the file of Judicial First Class Magistrate, Perumbavoor are quashed. But it is made clear that quashing of the cognizance taken will not prevent the learned Magistrate from taking cognizance on complaints filed by the officer authorised under the Act or the authorised officer from filing the complaint as provided under Section 25 of Kerala Protection of River Banks and Regulation of Removal of Sand Act and Section 22 of M.M.D.R.Act. M.SASIDHARAN NAMBIAR, JUDGE. uj.