Jose Thomas vs State of Kerala

Thomas P. Joseph, J.—Petitioner is accused in Crime No. 81 of 2010 of Kanjikuzhy police Station (Idukki District) and C.C No. 170 of 2010 of the Court of learned Judicial First Class Magistrate, Idukki for offences punishable under Sections 17(4) and 23 r/w. Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, ''the Act''). Petitioner challenges the cognizance taken against him by the learned Magistrate on the final report submitted by the police u/s 173(2) of the Code of Criminal Procedure (for short, ''the Code'').

I have heard learned Counsel for Petitioner and the learned Public Prosecutor. learned Counsel contended that in view of Section 25 of the Act as explained by this Court in Ismayil Vs. State of Kerala, , learned Magistrate ought not and could not have been taken cognizance on a final report submitted by the police u/s 173(2) of the Code. learned Counsel submitted that cognizance taken and all further proceedings in C.C No. 170 of 2010 are, therefore, illegal.

Section 25 of the Act is clear that no Court shall take cognizance of any offence punishable under the Act, except upon a complaint in writing made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology. Assuming that as per the G.O issued by the Government, the police also is authorised to file complaint u/s 25 of the Act, cognizance could have been taken only on a complaint. In view of the definition of "complaint" in Section 2(d) of the Code, a police report cannot be said to be a "complaint". Referring to these aspects, this Court in Ismayil v. State of Kerala (supra) has held that no cognizance could be taken on a final report submitted u/s 173(2) of the Code.

It would appear that the message conveyed by this Court in the said decision has not reached either the police or the Subordinate Courts as is seen from a number of cases where in spite of the decision referred above, the police have filed final reports u/s 173(2) of the Code in respect of offences punishable under the Act and the trial courts have taken cognizance on such final report.

In the light of the above provision and the decision of this Court, it was illegal for the police to file a final report u/s 173(2) of the Code concerning an offence punishable under the Act and for the learned Magistrate to take cognizance on such final report.

But, this order cannot prevent the police, if otherwise competent as per the Government Order filing a Complaint as contemplated u/s 25 of the Act subject to the law of limitation and the power of Magistrate to condone the delay, if any.

Resultantly, with the observation made above this Criminal Miscellaneous Case is allowed. Cognizance taken by the learned Judicial First Class Magistrate, Idukki on the final report in Crime No. 81 of 2010 of Kanjikuzhi Police Station and all further proceedings against Petitioner in C.C No. 170 of 2010 of that Court are quashed.