REJI Vs. STATE 0F KERALA

JUDGEMENT

(1.) The revision petitioner is the 2nd accused in CC No. 25/2006 on the files of the Judicial First Class Magistrate's Court, Kothamangalam, as well as the appellant in Crl. A No. 124/2009 on the files of the V Additional Sessions Judge, Ernakulam, and the respondent herein is the complainant. The offences alleged against the revision petitioner are under Section 378 read with Section 34 of the Indian Penal Code and Section 12(10) read with Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short 'the Act'). The case of the prosecution is that in furtherance of the common intention to commit theft, on 18/08/2005 at about 2.30 p.m. the 1st and 2nd accused together committed theft of river sand worth Rs. 1,000/- from the Periyar River at a place called 'Chembankuzhi' and loaded the sand in the lorry bearing registration No. KL-07-B-6564 and thereby the accused have committed the offences alleged against them. After hearing the prosecution and defence, the Court framed charges against the revision petitioner for the offences punishable under Section 379 read with Section 34 of the IPC and under Section 12(10) read with Section 20 of the Act.

(2.) The revision petitioner entered appearance and pleaded not guilty. On the side of the prosecution, CWs 1 and 3 were examined and Exts. P1 and P2 and MO 1 were also marked. The revision petitioner was questioned under Section 313(1)(b) of the CrPC and he denied the entire charge framed against him. After considering the evidence on record, the learned Magistrate found that the petitioner is not guilty of the offences punishable under Section 378 of the IPC and Section 12(10) read with Section 20 of the Act; but found that the petitioner is guilty of the offence punishable under Rule 48K read with Rule 58(1) of the Kerala Minor Mineral Concession Rules, 1967 and convicted thereunder. He was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 5,000/- and in default, to undergo simple imprisonment for a period of one month. Though the petitioner had preferred the above Criminal Appeal, after re-appreciating the entire evidence on record, the learned Sessions Judge also confirmed the findings of the conviction; but modified the sentence. The substantive sentence of simple imprisonment for six months was reduced and modified to simple imprisonment for 3 months and sustained the rest of the sentence as such, without any interference. The legality and propriety of the impugned judgments are under challenge in this Revision Petition.

(3.) Though this Revision Petition has been filed on various grounds, the learned counsel for the revision petitioner has mainly canvassed two points. Firstly, the learned counsel contended that the Court below has erred in making a searching enquiry after finding that the petitioner is not guilty of the offences for which he was charge-sheeted and found out another offences for which no charge was framed against him. Thereafter, the Court below found the revision petitioner guilty of the offences for which no charge was framed as provided under law. Secondly, the cognizance of offence for which the petitioner was convicted was taken by an Officer, who was not authorised to take cognizance under Section 59 of the Rules.