IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 Crl.MC.No. 151 of 2011() ----------------------------------- CC.138/2010 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... PETITIONER(S): ACCUSED --------------------------------------- VASAVAN,AGED 61,S/O.SANKARANKUTTY, PUTHANKANDATHIL HOUSE,PANAVALLY.P.O, CHERTHALA. BY ADV. SRI.C.G.RAJ KUMAR RESPONDENT(S): RESPONDENT ------------------------------------------------ STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.151 of 2011 --------------------------------------- Dated this 07th day of February, 2011 ORDER Petitioner is accused in C.C.No.138 of 2010 of the court of learned Judicial First Class Magistrate-II, Cherthala for offences punishable under Sec.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”) and Sec.4(1) r/w Sec.21(1) of Mines and Minerals (Development and Regulation) Act 1957 (for short, "the Mines and Minerals Act”). Annexure-B is the final report submitted by the Station House Officer, Poochakkal under Sec.173(2) of the Code of Criminal Procedure (for short, "the Code”). Contention of petitioner is that learned Magistrate was not correct in taking cognizance on a police report filed under Sec.173(2) of the Code in view of Sec.25 of the Act and the decision of the Division Bench of this court in Ismayil Vs. State of Kerala (2010 (3) KLT 706). I have heard learned Public Prosecutor as well. 2. Under Sec.25 of the Act, no court shall take cognizance of any offence punishable under the Act, except on a complaint in writing made by a person authorised in that behalf Crl.M.C.No.151 of 2011 -: 2 :- by the Government or the District Collector or a Geologist of a department of Mining and Geology. True that as per G.O(Ms) No.11/2007/RD dated January 10, 2007 the Government in exercise of its power under Sec.25 of the Act have conferred power on the Superintendent of Police, Deputy Superintendent of Police and Station House Officers to exercise the power to make a complaint in writing in respect of any offence punishable under the said Act. But, going by Sec.25 of the Act the court can take cognizance only on a complaint filed by the officers authorised in that behalf. Sec.2(d) of the Code states that 'complaint' does not include a police report (submitted under Sec.173(2) of the Code). The Division Bench of this court in Ismayil Vs. State of Kerala (supra) has made it clear that a police report submitted under Sec.173(2) of the Code cannot be treated as a complaint for the purpose of the Act and hence, no cognizance could be taken on such a police report. In the case on hand, cognizance has been taken on Annexure-B, final report submitted by the Station House Officer, Poochakkal under Sec.173(2) of the Code which is illegal. If that be so, cognizance taken against petitioner is liable to be quashed. Crl.M.C.No.151 of 2011 -: 3 :- Resultantly this criminal miscellaneous case is allowed and cognizance taken against petitioner in C.C.No.138 of 2010 of the court of learned Judicial First Class Magistrate-II, Cherthala based on the final report filed under Sec.173(2) of the Code and all proceedings pursuant thereto against the petitioner will stand quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-