RIYAS Vs. STATE OF KERALA

JUDGEMENT

(1.) FIRST accused in Crime No.241 of 2009 of Poochakkal Police Station and C.C.No.1241 of 2009 of the court of learned Judicial FIRST Class Magistrate-II, Cherthala facing trial for offences punishable under Secs.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 the Mines and Minerals (Development and Regulation) Act, 1957 (for short, "the Mines Act") and Rule 58 of the Mineral Concession Rules, 1960 seek to quash proceedings against him. It is contended that cognizance taken by the learned Magistrate on the final report submitted by the police under Sec.173(2) of the Code of Criminal Procedure (for short, "the Code") is illegal since the Court could have taken cognizance only on a complaint preferred by the officer authorized in that behalf. Learned counsel though does not dispute that the police officer also is an officer authorized in that behalf would contend that cognizance could not have been taken on the final report as above stated. Reliance is placed on the decision of the Division Bench of this Court in Ismayil and Ors. Vs. State of Kerala and Ors. (2010 (3) KHC 677). I have heard learned Public Prosecutor also.

(2.) SO far as offence punishable under the Act is concerned, Sec.25 says that cognizance can be taken only on a complaint filed by the officer authorized in that behalf by the Government or District Collector. Sec.22 of the Mines Act also says similarly that no Court shall take cognizance of any offence punishable under that Act or Rules made thereunder except upon a complaint in writing made by a person authorized in that behalf by the Central Government or the State Government. In the decision referred to above, the Division Bench has held that a final report filed by the police under Sec.173(2) of the Code cannot be treated as a 'complaint' as understood in Sec.25 of the Act. The same principle should apply so far as a complaint preferred under Sec.22 of the Mines Act is concerned. It follows that cognizance taken by the learned Magistrate, Cherthala on the final report submitted by the police under Sec.173(2) of the Code is not legal. But I make it clear that this order will not stand in the way of officer authorized in that behalf filing appropriate complaint as provided under law. In the light of what I have stated above, cognizance taken against petitioner cannot stand. In that view, there is no reason why the benefit of this decision shall not be extended to other accused in the case who has not sought to quash proceeding against him.