IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 Crl.MC.No. 4268 of 2010() ------------------------ CC NO. 180/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVOOR ................................................... PETITIONER / ACCUSED : ---------------------------------- GOPALAKRISHNAN @ GOPALJI, KIZHAKKEKARA PUTHENVEEDU, PALLIMON P.O., KANNANALLOOR, KOLLAM DISTRICT. BY ADVS. DR. K.P. SATHEESAN SRI. K.K. GOPINATHAN NAIR SRI. M.R. JAYAPRASAD SRI. P. MOHANDAS SRI. MATHEW SUNNY SRI. ANOOP V. NAIR RESPONDENTS / STATE & COMPLAINANT : ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 31. 2. THE SUB INSPECTOR OF POLICE, CHATHANNOOR POLICE STATION, CHATHANNOOR, KOLLAM DISTRICT, PIN – 691 572. R1 & R2 BY PUBLIC PROSECUTOR SRI. PRAMOD I.V. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/10/2010, ALONG WITH CRMC NO. 4272/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. -------------------------------------------------------- CRL.M.C.NOs.4268 & 4272 OF 2010 --------------------------------------------------------- Dated 21st October, 2010 O R D E R Petitioner is the first accused in C.C.43/2010 and the sole accused in C.C.180/2010 on the file of Judicial First Class Magistrate's Court, Paravoor, taken cognizance for the offences under Sections 20 and 21 of Kerala Protection of River Bank and Regulation of Removal of Sand Act, 2001, on a final report submitted by the Sub Inspector of Police. Petitioner filed petitions in both the cases contending that as the learned Magistrate could not have taken cognizance on the final report, he is to be discharged. Learned Magistrate by separate impugned orders, finding that cognizance could not have been taken on the final reports Crmc 4268/10 & 4272/10 2 submitted under Section 173(2) of Code of Criminal Procedure, stopped the procedure under Section 258 of Code of Criminal Procedure. Petitions are filed under Section 482 of Code of Criminal Procedure to quash the said orders contending that when petitioner has filed applications for discharge and it was found that cognizance could not have been taken, petitioner should have been discharged. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that when learned Magistrate has passed order under Section 258 of Code of Criminal Procedure finding that cognizance could not have been taken, a specific order discharging the accused should have been Crmc 4268/10 & 4272/10 3 passed. 4. Learned Magistrate has passed the impugned orders under Section 258 of Code of Criminal Procedure for the reason that the cases are being tried following the procedure provided under Chapter XX for summons cases and not the procedure under Chapter XIX, for warrant cases. An accused can be discharged under Section 239 of Code of Criminal Procedure, only when the learned Magistrate is trying the case following the procedure provided for warrant cases. when the Magistrate is following the procedure for summons cases, Magistrate can proceed only under Section 258 of Code of Criminal Procedure. 5. Learned Magistrate accepted the contentions of the petitioner and stopped Crmc 4268/10 & 4272/10 4 the proceedings as provided under Section 258 of Code of Criminal Procedure. Section 258 of Code of Criminal Procedure specifically provide that if such stoppage of proceedings is made, after the evidence of the principal witnesses has been recorded, he shall pronounce a judgment of acquittal and in any other case, the accused shall be released. It further provides that such release shall have the effect of discharge. The impugned order does not specifically show that accused is released. It is for that reason, these petitions are filed. Petitions are disposed making it clear that by the impugned orders passed under Section 258 of Code of Criminal Procedure petitioner is released in both Crmc 4268/10 & 4272/10 5 the cases. Such release shall have the effect of discharge, as provided under Section 258 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR, JUDGE. uj.