IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Crl.MC.No. 727 of 2010() ----------------------------------- CC.11/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA CRIME NO.210/2005 OF KATTAKADA POLICE STATION. .................... PETITIONER/1ST ACCUSED: ----------------------------------------- VIJAYAKUMARAN NAIR, S/O.GOPALA PILLAI, SATHYASAI NILAYAM, ETTIRUTHI, KULATHUMMAL VILLAGE. BY ADV. MR.R.T.PRADEEP, MR.V.VIJULAL. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.727 OF 2010 ------------------------------------------ Dated 3rd March 2010 O R D E R Petitioner is the first accused in C.C.11/2007 on the file of Judicial First Class Magistrate, Kattakada taken cognizance for the offences under Section 4(1) read with Section 2(1) of Kerala Mines and Minerals Development Act, 1957 (hereinafter referred to as M.M.D.R Act) read with Section 58 of Mines and Minerals Conversion Rules, 1967. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that learned Magistrate could not have taken cognizance of the offence under M.M.D.R Act, except on a complaint as provided under Section 22 of the Act and as Crmc 727/10 2 cognizance was taken on Annexure-I final report submitted under Section 173(2) of Code of Criminal Procedure, cognizance taken is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Section 22 of M.M.D.R Act mandates that no court shall take cognizance of the offence under the Act except on a complaint filed by an officer authorised under the Act. Question has been settled by this court in Sherif and others v. Sub Inspector of Police, Konni and another (2010 (1) KLD 109). Though by Annexure-II order learned Magistrate dismissed the petition filed by the petitioner for discharge taking the view that though Annexure-I is termed as final report, as Sub Crmc 727/10 3 Inspector can only file a complaint and not a final report and so it is to be treated as a complaint, following the decision of this court in Mohanan, Kunnathanam & others v. Sub Inspector of Police, Koipuram Police Station and another (2008 (1) KLT 56), in view of the decision of Division Bench of this court in Moosakoya v. State of Kerala (2008 (1) KLT 538) as approved by the Apex court in Jeevankumar Raut v. Central Bureau of Investigation (AIR 2009 SC 2763), it cannot be held that Annexure-I is a complaint as provided under Section 2(d) of Code of Criminal Procedure. Annexure-I report does not even disclose that Sub Inspector who submitted the report is the officer authorised under the Act or that Annexure-I is submitted in his capacity as the authorised officer. Instead it only shows that Crmc 727/10 4 case was investigated by the Sub Inspector in his capacity as Sub Inspector and after completing investigation, the final report is submitted under Section 173(2) of Code of Criminal Procedure. In such circumstances, when the complaint as defined under Section 2(d) makes it absolutely clear that complaint cannot include the final report submitted under Section 173(2) of Code of Criminal Procedure as defined under Section 2(n) of Code of Criminal Procedure, it cannot be said that cognizance was taken on Annexure-I as it is a complaint and not a final report. In such circumstances, cognizance taken can only be quashed. Petition is allowed. C.C.11/2007 on the file of Judicial First Class Magistrate, Kattakada is quashed. It is made clear that Crmc 727/10 5 any officer authorised under the Act is entitled to file a complaint and learned Magistrate is entitled to take cognizance of the offence on the complaint as provided under Section 22 of M.M.D.R Act. M.SASIDHARAN NAMBIAR, JUDGE. uj.