IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 Crl.MC.No. 445 of 2010() ---------------------------------- CC.106 of 2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA ........................................ Crime No.642 of 2008 OF CHENGAMANAD POLICE STATION ......................................... PETITIONER :- ACCUSED ------------------ VARGHESE, S/O.PAULOSE, AGED 42, KARUMATHY HOUSE, NEDUVANOORKARA, CHENGAMANAD VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. MR.ANIL K. MUHAMED RESPONDENT :- STATE -------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.445 OF 2010 ------------------------------------------ Dated February 2010 O R D E R Petitioner is the sole accused in C.C.106/2009 on the file of Judicial First Class Magistrate-I, Aluva taken cognizance for the offence under Section 4(1)(A) of Mines and Minerals (Development and Regulation) Act and section 17(4) read with Section 23 of Kerala Protection of River Banks and Regulation of Removal Sand Act, 2001 on Annexure-A final report submitted by Sub Inspector of Police, Changamanad. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken on the final report contending that under Section 25 of the Protection of River Banks and Crmc 445/10 2 Regulation of Removal Sand Act, 2001 cognizance can be taken only on a complaint filed by the authorised officer and not on a final report submitted under Section 173(2) of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Question whether cognizance of an offence under Protection of River Banks and Regulation of Removal Sand Act, 2001 could be taken by the Magistrate on a final report submitted by the police, after investigation, has been 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 Crmc 445/10 3 538), and the decision of the Apex court in Jeevankumar Raut v. Central Bureau of Investigation (AIR 2009 SC 2763). As learned Magistrate has taken cognizance on the final report submitted under Section 173(2) of Code of Criminal Procedure and not on a complaint as provided under Section 25 of the Act, cognizance taken can only be quashed. But the authorised officer is entitled to file a complaint as provided under Section 25 of the Act. Petition is allowed. Cognizance taken by the learned Magistrate in C.C.106/2009 on the file of Judicial First Class Magistrate-I, Aluva is quashed. M.SASIDHARAN NAMBIAR, JUDGE. Crmc 445/10 4 uj.