Afsal v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2015-06-10
Court Decision / Holding: The impugned Annexure A1 final report/charge sheet and all further proceedings were quashed; the court held the pre‑amendment regime applicable as of the date of offence, rendering the proceedings ultra vires. The Crl.M.C. was disposed of in the petitioner’s favour.
Final Disposition: Crl.M.C. disposed of; petition allowed; quashed the final report (Annexure A1) and all further proceedings in Crime No. 335/2011.

Parties to the Case

Appellants / Petitioners

Afsal

Respondents

The State of Kerala, through the Sub Inspector of Kalady Police Station, represented by the Public Prosecutor.

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Sunil Kumar
• Smt. K.J. Gisha

Counsels for Respondents

• Public Prosecutor Smt. S. Hyma

Case Synopsis & Summary

This criminal miscellaneous case concerns Afsal, the sole accused in Kalady Judicial First Class Magistrate Court's Crime No. 335/2011, charged under IPC Section 279 and sections 23 r/w 20 and 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The petitioner sought to quash the proceedings on the ground that cognizance could not be taken on a final report/charge sheet submitted by police under Section 173(2) CrPC because of the Act’s notification prerequisites. The offence arose on 20 April 2011; at that time there was no notification authorising subordinate police officers to institute complaints under the Sand Act. Amendment Act 15 of 2013, effective from 25 November 2012, amended Section 25, allowing cognizance upon a written complaint by an officer empowered under Section 23 or upon a police report under 173(2) CrPC. The petitioner argued the pre‑amendment law—under which cognizance could be taken only by an authorised officer—applied, rendering Annexure A1 invalid. The court found that the law as it stood on the date of the offence governs; the impugned final report under 173(2) and subsequent proceedings were ultra vires. It quashed Annexure A1 and all further proceedings in Crime No. 335/2011, and disposed of the Crl.M.C. accordingly.

Provisions of Law Cited

IPC Section 279Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, Section 23 r/w 20 and 27Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, Section 25 (pre-amendment)Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, Section 25 (amended by Amendment Act 15 of 2013)Code of Criminal Procedure, 1973, Section 173(2)

Legal Doctrines & Maxims

the law that stood as on the date of the alleged commission of the offence is the law that is to govern the matter.

Submissions & Arguments

Contentions of Appellants / Petitioners

The accused argued that cognizance could not be taken on the final report/charge sheet under Section 173(2) CrPC because the Sand Act required cognizance only upon a complaint by an officer authorised by government; there was no such notification at the time of the offence (20/04/2011). The Ismayil decision (2010) was cited to support the limitation that the court cannot take cognizance under the Sand Act unless proper authority exists; amended provisions (Act 15 of 2013) were noted as subsequent, but the offence date governs.

Contentions of Respondents

The State contended that the Sand Act has been amended to permit cognizance based on a police report under 173(2) or a complaint by an officer under Section 23. It argued that the amendment should govern the matter where applicable, and that the existence of a later notification does not invalidate cognizance under the amended framework.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ismayil v. State of Kerala	2010(3) KLT 706	Positive	Cited to support the proposition that cognizance under the Sand Act cannot be taken solely on a police report under 173(2) without proper authorization; the judgment is used to ground the pre‑amendment cognizance requirement.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 10TH DAY OF JUNE 2015/20TH JYAISHTA, 1937** ## **Crl.MC.No. 2138 of 2015** ## **---------------------------** **CC 1005/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KALADY. CRIME NO. 335/2011 OF KALADY POLICE STATION, ERNAKULAM.** **............** ## **PETITIONER(S)/PETITIONER/ACCUSED:** **----------------------------------------------------------------** **AFSAL, AGED 24 YEARS, S/O.RASHEED, THARAYIL HOUSE, SREEBHOOTHAPURAM BHGAM, SREEMOOLANAGARAM KARA, CHOWWARA, THEKKUM BHAGAM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.K.SUNILKUMAR SMT.K.J.GISHA** ## **RESPONDENT/COMPLAINANT:** **---------------------------------------------** **THE STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KALADY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **Crl.MC.No. 2138 of 2015 ----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ------------------------------------------ANNEXURE AI: CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.1005/14 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTTRATE COURT, KALADY. RESPONDENT(S)' ANNEXURES: - NIL ----------------------------------------------** ## **/TRUE COPY/** **P.S. TO JUDGE** **mbr/** ## ALEXANDER THOMAS, J. ================== ## Crl.M.C.No.2138 of 2015 ================== Dated this the 10[th] day of June, 2015 ## O R D E R The prayer in this Crl.M.C. is as follows: “.....to quash the entire proceedings in C.C.No.1005/2014 on the file of the Judicial First Class Magistrate Court, Kalady arising out of Crime No.335/2011 of Kalady Police Station, in the interest of justice.” The petitioner is the sole accused in C.C.No.1005/2014 on the file of the Judicial First Class Magistrate Court, Kalady for the offences under Section 279 of IPC and Sections 23 r/w 20 and 27 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short the Act). The case was initiated on the basis of the crime registered by the Sub Inspector of kalady in that regard. The gist of the prosecution case is that on 20/04/2011 at about 11 a.m., while the Sub Inspector of Kalady Police Station on patrol duty had seen the accused transporting river sand in mini lorry bearing Registration No.KL-7/L-1805 through Aramkavu- Crl.M.C.No.2138 of 2015 - : 2 :- Madathikadavu-Kanjoor road in a rash and negligent manner. When the police party tried to intercept the vehicle, the petitioner/accused did not stop the vehicle and thereby committed offences punishable under 279 of IPC and Sections 23 r/w 20 and 27 of the Act. It is also alleged that the petitioner had transported the river sand without authorised licence. It is stated that the petitioner was arrested and released on bail. The police after investigation submitted the impugned Annexure A1 final report/charge sheet in the above said crime which led to the pendency of C.C.No. 1005/2014 on the file of the above said Jurisdictional Magistrate's Court concerned. 2. It is contended that in the light of the decision of this Court in Ismayil v. State of Kerala reported in 2010(3) KLT 706, the Criminal Court cannot take cognizance on a final report/charge sheet filed by the police under Section 173(2) of the Cr.P.C as Section 25 of the Sand Act mandates that an authorised officer who is empowered to file a complaint that the court can take cognizance only on a complaint instituted by an authorised officer. That such notification authorising the Sub Inspector of Police, was not in Crl.M.C.No.2138 of 2015 - : 3 :- existence as on the date of occurrence of the alleged offence viz, 20/04/2011 and that it is only much later the notification in that regard was issued authorizing officers including Sub Inspector of Police concerned. Therefore it is contended that taking of cognizance of the present case on the basis of Annexure-1 final report/charge sheet cannot be justified and the entire impugned criminal proceedings initiated and pending against the petitioner is liable to be interdicted by this Court. 3. Heard, Sri.K.Sunil Kumar, learned counsel for the petitioner and the learned Public Prosecutor appearing for the respondent State of Kerala. It is indisputable that the date of occurrence of the alleged offence is on 20/04/2011 on which date there was no notification authorising an officer of the rank of Sub Inspector of Police to institute even a complaint. It is only thereafter that by Amendment Act 15 of 2013 made effective from 25/11/2012 (published in Kerala Gazette Ext.No.693 dated 07/03/2013) that amendment to Section 25 of the Act was made. Prior to the said amendment of Section 25 of the Act reads as follows: “25. Cognizance of offences- No Court shall take cognizance of any offence punishable under this Act, Crl.M.C.No.2138 of 2015 - : 4 :- 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.” ## After the amendment, Section 25 reads as follows: “25.Cognizance of offences-(1) The Court having jurisdiction may, upon a written complaint by an officer referred to in Section 23 or of a Geologist of the Mining and Geology Department or upon a police report under sub-section (2) of Section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), constituting an offence under this Act, take cognizance of such offence. (2) Where an officer referred to under sub-section (1) is satisfied that an offence under this Act has been committed, he shall, as soon as may be, file a complaint relating to that, before the Magistrate Court having jurisdiction.” 4. In this view of the matter it cannot be doubted that the impugned criminal proceedings are ultra vires and unenforceable in the light of the provisions of section 25 as it stood prior to the amendment. The law that stood as on the date of the alleged commission of the offence is the law that is to govern the matter. 5. Accordingly the impugned Annexure A1 final report/charge sheet filed in Crime No. 335/2011 of Kalady Police Station which led to the institution of C.C.No.1005/2014 on the file of the Judicial First Class Magistrate Court, Kalady and all further proceedings Crl.M.C.No.2138 of 2015 - : 5 :- therefrom pending against the petitioner are quashed. With these observations and directions the Crl.M.C.stands finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MJL Crl.M.C.No.2138 of 2015 - : 6 :-