SHAJI K.A. Vs. THE STATION HOUSE OFFICER

JUDGEMENT

(1.) ACCUSED in C.C. No. 100/2012 on the file of Judicial First Class Magistrate Court - II, Kottarakkara has filed this petition to quash the proceedings under Section 482 of Code of Criminal Procedure.

(2.) IT is alleged in the petition that petitioner has been made as an accused in C.C. No. 100/2012 on the file of the Judicial First Class Magistrate Court - II, Kottarakkara. He was arrayed as a sole accused in Crime No. 1069/2011 of Pooyappally police station in Kollam District alleging offence under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter called 'the Act'). The allegation was that, on 07.12.2011, while the first respondent and his party was doing patrol duty and when they reached near Oyoor Junction, got information that petitioner was illegally excavating sand from Aduthala Kadavu adjacent to the Brick Killen belongs to the petitioner. They reached the spot and found somebody swam across the river leaving the articles and on enquiry, it was revealed that it was the petitioner who escaped from the spot. So, they suo moto registered Annexure AI Crime against the petitioner and thereafter filed Annexure A2 final report, on the basis of which, the case was taken on file as C.C. No. 100/2012. Taking cognizance under Sections 20 and 21 of the Act on the basis of police report is against Section 25 of the Act, as the court can take cognizance of the offence under the Act only on the basis of a complaint filed by the persons mentioned therein and so, the taking cognizance of the case itself is bad. The petitioner has no other remedy except to approach this court seeking the following relief:

(3.) THE Counsel for the petitioner Smt. Preetha P.S. submitted that Annexure A2 is a police report filed under Section 173(2) of Code of Criminal Procedure and as such, taking cognizance of the case on the basis of that report is bad in law. The learned Counsel has relied on the decisions reported in Sumesh v. State of Kerala [ : 2012 (3) KLT 524] and Ismayil v. State of Kerala [ : 2010 (3) KLT 706] and Nizam v. State of Kerala [ : 2014 (2) KHC 354] in support of her case.