IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 Crl.MC.No. 1026 of 2011() ------------------------ CC.455/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY .................. PETITIONERS / ACCUSED 1 TO 5 : ------------------------------------------------- 1. ABDULSALAM, S/O KUNJIPAREETH, CHUNDEKKATTIL HOUSE, NEDUNGANAM DESOM, KARUMATHRA VILLAGE. 2. NASSAR, S/O KUNJIPAREETH, CHUNDEKKATTIL HOUSE, NEDUNGANAM DESOM, KARUMATHRA VILLAGE. 3. SANTHOSH, S/O GOPI, CHACKAMATTIL HOUSE, NARAYANAMANGALAM, PULLUT VILLAGE. 4. ABDUL NASER, S/O BEERU, KUZHIKKANDATHIL HOUSE, KOVILAKATHUKUNNU DESOM, PUTHENCHIRA VILLAGE. 5. MOHAMMADALI, S/O ABDULRAHMAN, PICHATHA VEEDU, KARUPPADANNA DESOM, THEKKUMKARA VILLAGE. BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT / COMPLAINANT : ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE S.I. OF POLICE, MALA. BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 1026 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - A : FIR IN CRIME 820 OF 2009 DT. 24-10-09. ANNEXURE - B : FINAL REPORT IN CRIME 820 OF 2009 DT. 20-12-09. ANNEXURE - C : COPY OF THE ORDER IN CRL.M.P.16433 OF 2010 AND CRL.M.P.16432 OF 2010 DT. 30-12-2010. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1026 of 2011 --------------------------------------- Dated this 29th day of June, 2011 ORDER Petitioners are accused 1 to 5 in Crime No.820 of 2009 of Mala Police Station and C.C.No.455 of 2010 of the Court of learned Judicial First Class Magistrate, Chalakkudy for offences punishable under Secs.20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, "the Act”), Sec.4(1)(a) r/w Sec.21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, "the Mines Act”) and Rules.48(L) and 58(1), (2), (3) and (4) of the Kerala Minor Mineral Concession Rules (for short, "the Rules”). Case is that on 24.10.2009 at about 15.30hrs first accused as driver of the lorry, accused 2 and 3 as helpers and the fourth accused as driver of a mini lorry transported river sand which was collected by the fifth accused in violation of the said provisions and thereby, the accused committed offences as alleged. Contention of petitioner/accused is that as per the relevant provisions of the Act and the Rules cognizance could be taken only on a complaint preferred by the appropriate authority whereas in the present case the police has submitted a final Crl.M.C.No.1026 of 2011 -: 2 :- report under Sec.173(2) of the Code of Criminal Procedure (for short, "the Code”) and based on that final report learned Judicial First Class Magistrate, Chalakkudy has taken cognizance. I have heard learned counsel for petitioners and the learned Public Prosecutor. 2. As per Sec.25 of the Act, Sec.22 of the Mines Act and Rule 59 of the Rules referred above, cognizance could be taken for offences committed under the said Acts and Rules only on a complaint preferred by the appropriate authority as referred to therein. In view of the definition of 'complaint' in Sec.2(d) of the Code, a final report submitted by the police under Sec.173(2) of the Code cannot be taken as a complaint. It follows that cognizance taken on the final report for offences referred above against petitioners cannot stand and is liable to be quashed. But that does not mean that the charging officer if the appropriate authority or, any other officer authorised in that behalf could not file a complaint before the appropriate Court, subject of course to the provisions relating to the law of limitation and power of learned Magistrate to condone the delay, if any. Resultantly this criminal miscellaneous case is allowed. The cognizance taken and proceeding against petitioners in Crl.M.C.No.1026 of 2011 -: 3 :- C.C.No.455 of 2010 of the Court of learned Judicial First Class Magistrate, Chalakkudy based on the final report in Crime No.820 of 2009 of Mala Police Station are quashed but making it clear that it is open to the officer authorised in that behalf to file complaint in respect of offences alleged before the appropriate Court as provided under law subject to the law of limitation and the power of learned Magistrate to condone the delay, if any. (THOMAS P JOSEPH, JUDGE) Sbna/-