IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Crl.MC.No. 4291 of 2008() ------------------------- C.C.NO.1120/03 OF J.F.C.M-II, ERNAKULAM CRIME NO.30/03 OF CHERANELLUR POLICE STATION PETITIONER(S): ACCUSED NOS.1 & 2 -------------------------------- 1. SEBASTIAN, S/O.VARGHESE, AGED 30 YEARS, PATTARUNADATHIL HOUSE, THAIKKAVU DESOM, CHERANELLUR VILLAGE. 2. RESHEED ALIAS RAJESH, S/O.VIJAYAN AGED 29 YEARS, PATTANASSERY HOUSE, THAIKKAL KARA, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.P.M.ZIRAJ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM REP. BY SUB INSPECTOR OF POLICE CHERANELLUR POLICE STATION IN CRIME NO.30/2003. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4291 of 2008 ------------------------------------- Dated this the 11th day of November, 2008 ORDER Petitioners face indictment in a prosecution under the provisions of Section 12 (10) r/w Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The alleged incident occurred on 08.03.03. Final report was filed by the Investigating Officer on 14.03.03. Cognizance has been taken. The prosecution is pending before the learned Magistrate as C.C.No.1120 of 2003. 2. The petitioners have, at this stage, come before this Court to contend that the cognizance taken by the learned Magistrate is not valid in as much as cognizance has been taken on the basis of a report of the police officer in gross disregard of the provisions of Section 25 of the said Act. The counsel relies on the decision in Rijo v. State of Kerala [2008 (1) KLT 664]. 3. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor accepts that prior to 18.01.07, the date on which the relevant notification comes into effect, the Investigating Officer had no jurisdictional competence to initiate Crl.M.C. No.4291 of 2008 2 prosecution under Section 25 of the said Act. 4. Cognizance taken by the learned Magistrate is thus found to be in violation of Section 25 of the Act as explained in Rijo v. State of Kerala (supra). The cognizance taken deserves to be set aside. 5. This Crl.M.C is, in these circumstances, allowed. Cognizance taken against the petitioners in C.C.No.1120 of 2003 on the basis of the final report submitted by the police officer who was not duly authorised on the relevant date under Section 25 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, is hereby quashed. 6. Needless to say, setting aside of the order taking cognizance will not fetter the rights of the police to take appropriate action in accordance with law now. (R.BASANT, JUDGE) rtr/-