IRSHAD v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936** ## **Crl.MC.No. 4124 of 2013 ()** **--------------------------ST 1956/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD. ......** **PETITIONER/ACCUSED: -----------------------------------** **IRSHAD, AGED 32 YEARS, 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 PUBLIC PROSECUTOR SMT.SAREENA P.GEORGE.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-07-2014, ALONG WITH CRL.MC. NO. 5799 OF 2013, CRL.MC. NO.59 OF 2014 AND CRL.MC. NO.2044 OF 2014,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 4124 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A-I: CERTIFIED COPY OF THE FIRST INFORMATION REPORT NO.68/2013 OF PANGODE POLICE STATION.** **ANNEXURE A-II: CERTIFIED COPY OF THE FINAL REPORT IN S.T.NO.1956/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD.** ## **RESPONDENT'S ANNEXURES:-** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.4124 of 2013, Crl.M.C.No.5799 of 2013, Crl.M.C.No.59 of 2014 & Crl.M.C.No.2044 of 2014 .................................................. Dated this the 17[th] day of July, 2014. ## **O R D E R** These Criminal Miscellaneous Cases were filed by the accused in ST.Nos.1956/2013, 1530/2013, 2001/2013 and 2000/2013 on the file of the Judicial First Class Magistrate Court-II, Nedumangad to quash the proceedings under Section 482 of the Code of Criminal Procedure. Since in all these cases, a common question of law arose for consideration, this Court felt that all these cases can be disposed of by a common judgment. 2. The case of the petitioner in Crl.M.C.4124/2013 was that he is the sole accused in S.T.No.1956/2013 on the file of the Judicial First Class Magistrate Court-II, Nedumangad. The Grade Sub Inspector of Police, Pangod police station on patrol duty on 2.2.2013 at 3.30 a.m found the petitioner in possession of ordinary earth kept in the property without any documents and thereby he had committed the offence punishable under Section 4(1A) read with Section 21 of the Mines and Crl.M.C.No.4124 of 2013 & other connected cases 2 Minerals (Development and Regulation) Act, 1957, and he registered Annexure-A1 First Information Report and after investigation submitted Annexure-A2 final report and that was taken on file by the Judicial First Class Magistrate Court-II, Nedumangad as S.T.No.1956/2013. 3. The case of the petitioner in Crl.M.C.No.5799/2013, who is the accused in S.T.No.1530/2013 of the same court is that Additional Sub Inspector of Police, Pangod police station on 27.5.2013 at 9.40 a.m found the petitioner in possession of huge quantity of ordinary earth without any document for the purpose of sale and thereby he had committed the offence punishable under Section 4(1A) read with Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and registered Annexure-A1 First Information Report and after investigation submitted Annexure-A2 final report, which was taken on file as S.T.No.1530/2013 on the file of the same court. 4. The case of the petitioner in Crl.M.C.No.59/2014, who is the second accused in S.T.No.2001/2013 on the file of the same court was that on 22.12.2012 at about 4.10 p.m the present Crl.M.C.No.4124 of 2013 & other connected cases 3 petitioner along with the first accused had engaged in the sale of ordinary earth which was collected without any document and thereby both of them have committed the offence punishable under the same section mentioned above cases and after investigation final report was filed and the case was taken on file as S.T.No.2001/2013 on the file of the same court. In that case the detection and investigation were conducted by the Sub Inspector of Police, Pangod police station. 5. Crl.M.C.No.2044/2014 was filed by the second accused in S.T.No.2000/2013 on the file of the same court. The allegation was that the Sub Inspector of Police, Pangod police station had found ordinary sand in the property of the first accused and originally registered a case against the first accused as Crime No.2/2013 of Pangod police station alleging offences under Section 4(1A) read with Section 21 of the Mines and Minerals (Development and Regulation Act), 1957 and during investigation, it was revealed that it was supplied to him by the second accused, who is the petitioner herein and so he was also implicated in the case and Annexure-AII final report was filed which was taken on file as S.T.No.2000/2013 Crl.M.C.No.4124 of 2013 & other connected cases 4 and pending before the same court. 6. In all these cases the common case of the petitioners was that the court should not have taken cognizance of the case on the basis of the police report in view of the bar under Section 22 of the above mentioned Act and so cognizance is bad and cases against them have to be quashed. So all the petitioners have filed these petitions for quashing the proceedings under Section 482 of the Code. 7. The counsel for the petitioner in all these cases submitted that under Section 22 of the Act, the court can take cognizance of the case only on the basis of the complaint filed by the authorized officer under the Act and in all these cases the First Information Report was registered and investigation was conducted and subsequently final report was filed and it was on the basis of the final report that the case was taken and so it is bad in law and liable to be quashed. He had relied on the decision reported in **Sumesh v. State of Kerala** (2012 (3) KLT 524) and **Ismail v. State of Kerala** (2010 (3) KLT 706) in support of his case. 8. The learned Public Prosecutor opposed the application Crl.M.C.No.4124 of 2013 & other connected cases 5 on the ground that it is not a ground for quashing the proceedings. It has to be decided on the basis of evidence. 9. It is an admitted fact that in all theses cases, the Station House Officer of Pangod police station had registered Annexure-A1 First Information Reports and thereafter investigation was conducted and Annexure-AII final reports were filed and it was on that basis that the court below had taken cognizance of the case against the accused persons. 10.Section 22 of the Act reads as follows: Cognizance of offence:- No court shall take cognizance of any offence punishable under this Act or any Rule made therein except upon a complaint in writing made by the person authorized in this behalf by the Central Government or by the State Government. 11. The Sub Inspector is an authorized officer as per the notification issued. But in the decision reported in **Ismail's case** (cited supra), a Division Bench of this Court while considering the prosecution under Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Kerala) and interpreting Section 25 of that Act, which is similar to Section 22 of this Act held that a police report submitted under Crl.M.C.No.4124 of 2013 & other connected cases 6 Section 173(2) of the Code cannot be treated as a complaint for the purpose of the Act as defined under Section 2(d) of the Code of Criminal Procedure and cognizance taken on the basis of the police report is bad in law and the same is liable to be quashed. But, in that case, it has been observed that however quashing of the cognizance taken will not be a bar for the authorized officer to file a complaint in accordance with law. Relying on this decision, a Single Bench of this Court in **Sumesh's case** (cited supra) held that prosecution based on final report filed by the Sub Inspector under Section 173(2) of the Code alleging commission of offence under Section 4(1A) read with Section 21 of the Mines and Minerals (Development and Regulation) Act and Rule 58 of the Kerala Minor Mineral Concession Rules cannot be treated as complaint and cognizance taken on the basis of such a report is bad and illegal and quashed the proceedings. 12. The same dictum will apply to the facts of these cases also. In all these cases, cognizance was taken by the learned Magistrate on the basis of final report filed under Section 173 (2) of the Code which cannot be treated as complaint as Crl.M.C.No.4124 of 2013 & other connected cases 7 contemplated under Section 22 of the Act and hence cognizance is bad in law and further proceedings as against the petitioner in all these cases are liable to be quashed. 12. So, these above petitions are allowed and further proceedings in ST.No.1956/2013 against the petitioner in Crl.M.C.No.4124/2013, in S.T.No.1530/2013 against the petitioner in Crl.M.C.No.5799/2013, in ST.No.2001/2013 as against the petitioner in Crl.M.C.No.59/2014, who is the second accused in the case and in S.T.No.2000/2013 as against the petitioner in Crl.M.C.No.2044/2014, who is the second accused in the case, are quashed against them. But it is made clear that quashing of these proceedings is not a bar for filing fresh complaints against those persons by the authorized officer as contemplated under Section 22 of the Act in accordance with law. Interim order granted in all these cases is vacated Office is directed to communicate this order to the concerned court immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.4124 of 2013 & other connected cases 8