IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Crl.MC.No. 2538 of 2009(B) ------------------------------------ CC.597/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR ............................................... PETITIONER(S): ACCUSED -------------------------------------- FEROZ,S/O.CHEKKUTTY,MELEPEDIAKKAL HOUSE, POLMANDAM POST,POLMANDAM VILLAGE, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.M.N.UNNIKRISHNAN SRI.JAMSHEED HAFIZ RESPONDENT(S): STATE ----------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2538 OF 2009 ------------------------------------------ Dated 19th August 2009 O R D E R This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-2 final report submitted by the Sub Inspector of Police, Tirur Police Station for the offences under Section 4(1)(A) read with Section 20(1) of Mines and Minerals (Development and Regulation) Act, 1957 and Section 20 of Kerala Protection of River Banks and the Regulation of Removal of Sand Act, 2001 contending that Sub Inspector is not an authorised officer either under Mines and Minerals (Development and Regulation) Act, 1957 or Kerala Protection of River Banks and the Regulation of Removals of Sand Act, 2001 and therefore the prosecution is to be quashed. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for petitioner is that cognizance for the offence under Mines and Minerals (Development and Regulation) Act, 1957 could be taken only on a complaint in writing made by a person authorised, as CRMC 2538/09 2 provided under Section 22 of the Act and Sub Inspector of Police is not an authorised officer and therefore cognizance taken for the offence under the Mines and Minerals (Development and Regulation) Act, 1957 is bad. It is also argued that under Section 25 of Kerala Protection of River Banks and the Regulation of Removal of Sand Act, 2001 cognizance could be taken only upon a complaint in writing made by a person authorised by the Government or the District Collector or a geologist of the Department of Mining and Geology as provided under Section 25 of the Act and Sub Inspector who is not authorised to file a complaint filed the final report on 28/7/2002 and therefore the cognizance taken is bad. 4. Learned Public Prosecutor pointed out that as per G.O.(MS) No.917/1997 issued by the Government in exercise of the powers conferred under Section 22 of Mines and Minerals (Development and Regulation) Act, 1957 and in superssession of earlier notification dated 23/6/1991, Sub Inspector of Police is an authorised officer and therefore the cognizance taken by the learned Magistrate for the offence under that Act is not bad. Learned Public Prosecutor fairly submitted that in 2002 Sub Inspector of Police is not authorised to file a complaint as provided under Section CRMC 2538/09 3 25 of the Kerala Protection of River Banks and the Regulation of Removals of Sand Act, 2001. 5. G.O.(MS) No.917/1997 published in the gazette dated 28/7/1997 shows that as item No.3, “police officer of and above the rank of Sub Inspector in the State” were conferred with the power to file a complaint as provided under Section 22 of the Act within the respective areas of jurisdiction. Therefore, in 2002 in view of G.O.(MS) No.917/1997 Sub Inspector of Police who filed the final report under Section 173(2) of Code of Criminal Procedure is an authorised officer who can file a complaint. The Magistrate is competent to take cognizance upon the said complaint made in writing by the said authorised officer. Therefore, cognizance taken for the offence under Section 4(1)(A) read with Section 20(1) of Mines and Minerals (Development and Regulation) Act, 1957 is perfectly legal and cannot be quashed. 6. But under Section 25 of Kerala Protection of River Banks and the Regulation of Removal of Sand Act, 2001 court cannot take cognizance of an offence punishable under Kerala Protection of River Banks and the Regulation of Removal of Sand Act, 2001, except on CRMC 2538/09 4 a complaint in writing made by a person authorised by the Government or District Collector or Geologist of the Department of Mining and Geology. As Sub Inspector of Police is not an authorised officer as provided under Section 25 on the date of taking offence, learned Magistrate is not competent to take cognizance of the offence under Kerala Protection of River Banks and the Regulation of Removal of Sand Act, 2001. Hence cognizance taken for the offence under Section 20 of Kerala Protection of River Banks and the Regulation of Removal of Sand Act, 2001 is bad and can only be quashed. Petition is allowed in part. Cognizance taken under Section 20 of Kerala Protection of River Banks and the Regulation of Removal of Sand Act, 2001 in C.C.597/2009 by Judicial First Class Magistrate-I, Tirur as against the petitioner is quashed. As learned Magistrate is competent to take cognizance he is to proceed with the trial for the offence under Mines and Minerals (Development and Regulation) Act, 1957. M.SASIDHARAN NAMBIAR, JUDGE. uj.