Babu and Valson vs State of Kerala

Thomas P. Joseph, J.—Petitioner is accused in Crime No. 143 of 2008 of Puthenvelikkara Police Station and C.C. No. 909 of 2008 of the court of learned Judicial First Class Magistrate, North Paravur for offence punishable u/s 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, "the Act"). Allegation is that on 17.05.2008 Petitioner was found transporting river sand in a country boat without authority and in violation of the Act. Petitioner seeks to quash proceeding against him on the contention that learned Magistrate was not correct in taking cognizance of the offence on a final report submitted by the police u/s 173(2) of the Code of Criminal Procedure (for short, "the Code"), in view of the decisions in Abdul Azeez Vs. State of Kerala, and Ismayil Vs. State of Kerala, .

u/s 25 of the Act, cognizance can be taken of the offence under the Act only on a complaint preferred by the Officers mentioned therein. But in the present case cognizance is taken on the final report filed by the police u/s 173(2) of the Code which is not permissible as explained in the decisions referred supra. Hence cognizance taken is illegal, cannot stand and it is liable to be set aside. I make it clear that it is open to the Officer concerned if he is authorised u/s 25 of the Act to file complaint before the learned Magistrate in respect of the offence allegedly committed by the Petitioner subject to the law of limitation and the power of learned Magistrate to condone the delay if any in filing the complaint.

This Criminal Miscellaneous Case is allowed. The cognizance taken by the learned Judicial First Class Magistrate, North Paravur in C.C. No. 909 of 2008 based on the final report submitted by the Puthenvelikkara Police in Crime No. 143 of 2008 and all further proceedings in C.C. No. 909 of 2008 are quashed without prejudice to the right of the Officer authorised in that behalf to file appropriate complaint before the learned Magistrate in respect of the same, subject of course to the law of limitation and the power of learned Magistrate to condone the delay if any in filing the complaint.