IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Crl.MC.No. 1368 of 2011() ------------------------- CC.238/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, IDUKKI CRIME NO.191/2010 OF MURIKKASSERY POLICE STATION, IDUKKI DISTRICT. .................... PETITIONER/ACCUSED ---------------------------------- JOHN, S/O.DANIEL, AGED 46 YEARS, VATTAKAT HOUSE, THETTALIKADA, CHEMBAKAPARA KARA, VATHIKKUDY VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.K.S.HARIHARAPUTHRAN, SRI.M.D.SASIKUMARAN, SRI.GEORGE MATHEW, SRI.DIPU JAMES, SMT.K.V.RAMYA. RESPONDENTS/COMPLAINANT --------------------------------------------- STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, MURIKKASSERY POLICE STATION, IDUKKI DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.J. MOHAMMED ANZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1368 of 2011 ==================================== Dated this the 26th day of May, 2011 O R D E R Petitioner is accused in Crime No.191 of 2010 of Murikkassery Police Station and C.C. No.238 of 2010 of the court of learned Judicial First Class Magistrate, Idukki for offences punishable under Sections 17(4) and 23 read with Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, “the Act”). Case is that petitioner was found removing river sand from Chinnar river. Cognizance taken by the learned Magistrate is challenged in this proceeding on the ground that cognizance should not have been taken on a final report submitted by the police under Section 173(2) of the Code of Criminal Procedure. Learned counsel submitted that in view of Sec.25 of the Act as held by this Court in Ismayil v. State of Kerala (2010 [2] KLT 706) cognizance taken by the learned Magistrate is illegal. I have heard learned counsel for petitioner and learned Public Prosecutor. 2. In view of Sec.25 of the Act which states that no court shall take cognizance except on a complaint in writing made by CRL.M.C. No. 1368 of 2011 -: 2 :- the person authorised in that behalf and the decision referred supra, learned Magistrate was not correct in taking cognizance on a final report filed by the police under Sec.173(2) of the Code. Hence cognizance taken cannot stand and the impugned order is liable to be set aside. However, that does not deprive right of the Officer authorised by the Government or District Collector from filing a complaint as provided under Sec.25 of the Act in respect of the offence. This Criminal Miscellaneous Case is allowed. Cognizance taken by the learned Judicial First Class Magistrate, Idukki in C.C. No.238 of 2010 based on the final report submitted by the Murikkassery Police in Crime No.191 of 2010 and all further proceedings in C.C. No.238 of 2010 are quashed. But it is made clear that this order will not stand in the way of the Officer authorised by the government or District Collector as the case may be, as per the Government Order concerned filing a complaint against petitioner in respect of offence alleged subject of course to the law of limitation and the power of learned Magistrate to condone the delay, if any. THOMAS P. JOSEPH, JUDGE. vsv