IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 Crl.MC.No. 1546 of 2011() ------------------------------------- CC.NO. 170/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI DISTRICT .................... PETITIONER/ACCUSED ----------------------------------- JOSE THOMAS, S/O.THOMAS, AGED 34 YEARS, URUMBEL HOUSE, KEERITHODU, KANJIKUZHY VILLAGE, IDUKKI DISTRICT BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU) RESPONDENT/ COMPLAINANT --------------------------------------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE KANJIKUZHY POLICE STATION, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI BY PUBLIC PROSECUTOR SRI.MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No. 1546 of 2011 --------------------------------------- Dated this the 30th day of May, 2011 ORDER Petitioner is accused in Crime No.81 of 2010 of Kanjikuzhy police Station (Idukki District) and C.C No.170 of 2010 of the Court of learned Judicial First Class Magistrate, Idukki for offences punishable under Secs. 17(4) and 23 r/w. Sec.20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001(for short, 'the Act'). Petitioner challenges the cognizance taken against him by the learned Magistrate on the final report submitted by the police under Sec.173(2) of the Code of Criminal Procedure (for short, 'the Code'). 2. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned counsel contended that in view of Sec.25 of the Act as explained by this Court in Ismayil v. State of Kerala ((2010) 3 KLT 706), learned Magistrate ought not and could not have been taken cognizance on a final report submitted by the police under Sec.173(2) of the Code. Learned counsel submitted that cognizance taken and all further proceedings in C.C No.170 of 2010 are, therefore, illegal. 3. Sec.25 of the Act is clear that no Court shall take cognizance Crl.M.C.No.1546 of 2011 -: 2 :- of any offence punishable under the Act, except upon a complaint in writing made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology. Assuming that as per the G.O issued by the Government, the police also is authorised to file complaint under Sec.25 of the Act, cognizance could have been taken only on a complaint. In view of the definition of “complaint” in Sec.2(d) of the Code, a police report cannot be said to be a “complaint”. Referring to these aspects, this Court in Ismayil v. State of Kerala (supra) has held that no cognizance could be taken on a final report submitted under Sec.173(2) of the Code. 4. It would appear that the message conveyed by this Court in the said decision has not reached either the police or the Subordinate Courts as is seen from a number of cases where in spite of the decision referred above, the police have filed final reports under Sec.173(2) of the Code in respect of offences punishable under the Act and the trial courts have taken cognizance on such final report. 5. In the light of the above provision and the decision of this Court, it was illegal for the police to file a final report under Sec.173(2) Crl.M.C.No.1546 of 2011 -: 3 :- of the Code concerning an offence punishable under the Act and for the learned Magistrate to take cognizance on such final report. 6. But, this order cannot prevent the police, if otherwise competent as per the Government Order filing a Complaint as contemplated under Sec. 25 of the Act subject to the law of limitation and the power of Magistrate to condone the delay, if any. Resultantly, with the observation made above this Criminal Miscellaneous Case is allowed. Cognizance taken by the learned Judicial First Class Magistrate, Idukki on the final report in Crime No.81 of 2010 of Kanjikuzhi Police Station and all further proceedings against petitioner in C.C No.170 of 2010 of that Court are quashed. Sd/- THOMAS P JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE krj