IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Crl.MC.No. 924 of 2010() ------------------------ CC.3143/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... (CRIME NO.341 OF 2007 OF ALUVA POLICE STATION) .... PETITIONER(S): ACCUSED: ------------------------------------------ HASSAN MUTHALIB, S/O.KUNJUMUHAMED, AGED 23, MUNDICHIRA HOUSE, KONGORPILLY KARA, ALANGAD VILLAGE, ERNAKULAM (DIST). BY ADV. MR.ANIL K.MOHAMMED RESPONDENT(S): STATE: ------------------------------------------ STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.M.C. No. 924 OF 2010 -------------------------- Dated this the 17th day of March, 2010 O R D E R Petitioner is the accused in C.C. No.3143/2007 on the file of Judicial First Class Magistrate-I, Aluva taken cognizance for the offence under Section 188 of Indian Penal Code, Section 4(1)(a) and 20(1) of Kerala Mines and Minerals Development and Regulation Act and Section 20 of Kerala Protection of River Banks and Regulation and Removal of Sand Act,2001 on Annexure-A final report submitted by the Sub Inspector of Police, Aluva. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken, contending that learned Magistrate is not competent to take cognizance of the offences under the Mines & Minerals (Development & Regulation) Act, 1957 or the Kerala Protection of River Banks and Regulation and Removal of Sand Act,2001 except on a complaint and as cognizance was taken on the final report, and not on a complaint it is to be quashed. It is also contended that an offence under Section 188 of Indian Penal Code can only be taken cognizance as provided under Section 195 of Code of Criminal Procedure, on a complaint filed by an authorised Crl.M.C No.924/2010 2 officer of the court in writing and as the cognizance taken on the final report submitted by the Sub Inspector, the said cognizance taken is also bad. 2. Section 22 of Mines & Minerals (Development & Regulation) Act, 1957 and Section 25 of Kerala Protection of River Banks and Regulation and Removal of Sand Act,2001 specifically provide that cognizance of an offence under this Act can only be taken on a complaint filed by an officer authorised under that Act. But cognizance in this case has been taken on Annexure-A final report submitted by the Sub Inspector. Annexure-A shows that it is not a complaint as defined under Section 2(d) of Code of Criminal Procedure but a final report submitted by the Sub Inspector in his capacity as an investigating officer under Section 173(2) of Code of Criminal Procedure. Therefore the cognizance taken for the offence under Section 22 of Mines & Minerals (Development & Regulation) Act, 1957 and Section 25 of Kerala Protection of River Banks and Regulation and Removal of Sand Act,2001 is bad. 3. As rightly pointed out by the learned counsel for the petitioner, an offence under Section 188 of Indian Penal Code can be Crl.M.C No.924/2010 3 taken cognizance only on a complaint as provided under Section 195 of the Code of Criminal Procedure and the cognizance was taken not on such a complaint, the cognizance taken can only be quashed. Petition is allowed. C.C. No.3143/2007 on the file of Judicial First Class Magistrate-I, Aluva is quashed. It is made clear that quashing of the cognizance taken will not prevent the officer authorised under the Act to file a complaint or the Magistrate to take cognizance on the complaint. M.SASIDHARAN NAMBIAR, (JUDGE ) vps Crl.M.C No.924/2010 4