Irshad v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 ``` ``` CRL.MC NO. 55 OF 2014 ``` ``` CC 917/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - ``` ## **`II,NEDUMANGAD`** ## **`PETITIONER/ACCUSED:`** ``` IRSHAD AGED 32 YERAS, S/O.MOHAMMED NOOH, KATTAIKKALIL HOUSE, KOCHALUMOODU, PANGODE, THIRUVANANTHAPURAM 695 609. ``` ``` BY ADVS. ``` ``` SRI.T.B.HOOD SMT.M.ISHA ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, PANGODE POLICE STATION, THIRUVANANTHAPURAM 695 609, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI 682 031. ``` ``` BY ADV. ``` ``` PP-SRI.SUDHEER GOPALAKRISHNAN, PP-SRI.ARAVIND V. MATHEW ``` ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ## **`17.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`** ``` CRL.MC NO. 55 OF 2014 ``` ``` 2 ``` ## **`ORDER`** The petitioner herein is the accused in C.C. No.917/2013 on the files of the Judicial First Class Magistrate Court II, Nedumangad. The aforesaid case arises from Crime No.828 of 2012 of Pangod Police Station. 2. The offences alleged against the petitioner are under Section 430 of Indian Penal Code read with Section 4 (1)(a) read with Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 (in short MMDR Act). The allegation against the petitioner is that he illegally mined sand from the property of the petitioner without permission from the Geology Department and utilized the water from a water channel for carrying out the said activities. This Crl.M.C. is filed seeking to quash the entire proceedings in the aforesaid calendar case, mainly on the ground that, the cognizance was taken thereon by the learned Magistrate upon a final report submitted by the Police under Section 173(2) of Cr.P.C. which was specifically prohibited under Section 22 of the MMDR Act. ``` CRL.MC NO. 55 OF 2014 ``` ``` 3 ``` 3. Heard Smt.M. Isha, learned counsel for the petitioner and Sri.Aravind V. Mathew, learned Public Prosecutor. 4. The learned counsel for the petitioner contends that Section 22 of MMDR Act contains a specific prohibition against taking cognizance of the offences under the Act or Rules made thereunder except upon a complaint in writing made by a person authorized in his behalf by the Central Government or the State Government. It was pointed out that Police Officer is not an officer authorised in this regard, and the final report submitted under Section 173 (2) does not come within definition of complaint. Learned counsel also relies upon the judgments in **Ismayil v. State of Kerala [2010 (3) KLT 706], P.M. Sumesh v. State of Kerala and Another [2012 (3) KLT 524] and Digil v. Sub Inspector of Police [2013 (1) KLT 600** ]. 5. Learned Public Prosecutor opposes the said contention. As per the final report, two offences are charged against the petitioner namely Section 430 of Indian Penal Code as well as the offence under Section 4(1) (a) read with Section 21 of MMDR Act. ``` CRL.MC NO. 55 OF 2014 ``` ``` 4 ``` As far as the offence under the provisions of the MMDR Act is concerned, the statute prescribes a special procedure for taking cognizance thereon, as per section 22. The said provision reads as follows: _“22. Cognizance of offences.--No court shall take cognizance of any offence punishable under this Act or rules made thereunder except upon the complaint in writing made by a person autherised in this behalf by the Central Government or the State Government.”_ 6. The said provision contemplates a prohibition in taking cognizance except upon a complaint in writing made by a person authorized in this behalf. The case of the petitioner is that, police officer is not one among the autherized persons, as mentioned in section 22.The aforesaid question was considered by this Court in **P.M. Sumesh’s** case ( supra) wherein after referring to the judgment in **Ismayil’s** case ( supra) which was pronounced under the provisions of Protection of River Banks and Regulation of Removal of Sand Act, 2001, it was categorically held that, no cognizance can be taken on the basis of a final report submitted by the police Section 173(2) of Cr.P.C. Therefore, the cognizance taken in respect of the aforesaid offences under the provisions of the MMDR Act is not ``` CRL.MC NO. 55 OF 2014 ``` ``` 5 ``` proper. ## 7. The other offence alleged against the petitioner is under ## Section 430 of IPC and the said provision reads as follows; ## _“_ _**Mischief by injury to works of irrigation or by wrongfully diverting water**_ _Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both._ ” In this case, the aforesaid offence is incorporated on the allegation that the petitioner had utilized water from a water channel, which was being used by the public for drinking and agricultural purposes and thereby caused diminution of water supply. However, I am of the view that, the said allegation would not attract the offence under Section 430 of IPC. To constitute the offence under Section 430, the accused must have committed an act of 'mischief', which is defined under Section 425 of IPC, which reads as follows: ## “ **Mischief** Whoever, with the intent to cause, knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously,commits “mischief”.” ``` CRL.MC NO. 55 OF 2014 ``` ``` 6 ``` From the joint reading of the aforesaid provisions, it is evident that in order to attract the offence under Section 430 of IPC, there must be an act of the accused which must have caused destruction of or any change in the property and such destruction or change in property must have caused or the the accused knows to be likely to cause, diminution of supply of water for agricultural purposes, food or drink of human being or animal. In this case, the final report does not contain any allegation as to any such destruction or change in the property, i.e. water channel (thodu). The only allegation is utilization of water therefrom for his mining activities. In my view, in the absence of allegation of any destruction or change in the said water channel, offence under the said provision would not be attracted. The basic requirement for constituting the said offence is the destruction of or change in the property and in this case such an allegation is lacking. Hence, prosecution under section 430 of IPC is an abuse of process of court. Thus, I am of the view that, this is a fit case in which the powers of this Court under Section 482 Cr.P.C. can be invoked, as it ``` CRL.MC NO. 55 OF 2014 ``` ``` 7 ``` is evident that the prosecution is not legally sustainable as against the petitioner herein. Accordingly, I allow this Crl.M.C. and quash Annexure AII final report and all further proceedings in C.C. No.917/2013 on the files of the Judicial First Class Magistrate Court II, Nedumangad. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ``` ``` CRL.MC NO. 55 OF 2014 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 55/2014`** `PETITIONER ANNEXURES` ANNEXURE A1 `ANNEXURE A1. COPY OF THE FIRST INFORMATION REPORT NO.828/12 OF PANGODE POLICE STATION.` ANNEXURE A II `ANNEXURE A2. COPY OF THE FINAL REPORT IN CC NO.917/13 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT 11, NEDUMANGAD.`