Jayakumar v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941** **Crl.MC.No. 297 of 2014** **ST NO.1972/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS , SASTHAMCOTTA** ## **PETITIONER/1ST ACCUSED:** **JAYAKUMAR AGED 30 YEARS S/O.MUKUNDAN PILLAI, KOCHUVEETTIL, NADUVILEKKARA MURI, WEST KALLADA VILLAGE, KOLLAM-691 001.** **BY ADVS. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.RAAJESH S.SUBRAHMANIAN SRI.T.S.HARIKUMAR** ## **RESPONDENTS/STATE AND THE COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031.** - **2 THE SUB INSPECTOR OF POLICE SOORANADU POLICE STATION, KOLLAM-691 001.** **PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON 20.05.2019 PASSED THE FOLLOWING:** Crl.M.C.No.297/2014 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.297 of 2014 ----------------------------------------------------Dated this the 20[th] day of May, 2019 ## **O R D E R** The petitioner is the first accused in the case S.T.No.1972/2012 on the file of the Court of the Judicial First Class Magistrate, Sasthamcotta. The petition is filed by him to quash Annexure-A2 report filed by the Sub Inspector of Police alleging commission of the offence punishable under Section 4 read with 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the Act'). 2. On 28.12.2011, at about 08.50 hours, the Sub Inspector of Police, Sooranad police station reached the property of one Girija on getting reliable information that mining of earth was being conducted there. The Sub Inspector saw there mining of earth being conducted using a JCB. The petitioner was the operator of the JCB. The Sub Inspector also saw four tipper lorries parked there, two of them loaded with soil. There was no Crl.M.C.No.297/2014 3 licence or permit for conducting mining operations. The Sub Inspector arrested the petitioner and the drivers of the tipper lorries and seized the vehicles and returned to the police station and registered Crime No.1448/2011 of Sooranad police station (Annexure-A1) in the matter. He conducted the investigation of the case and thereafter, filed Annexure-A2 report in the Magistrate's Court concerned. On the basis of Annexure-A2 report, learned Magistrate took cognizance of the offence punishable under Section 4 read with 21(1) of the Act and took the case on file as S.T.No.1972/2012. 3. Heard learned counsel for the petitioner and the learned Public Prosecutor. 4. Learned counsel for the petitioner contended that the learned Magistrate should not have taken cognizance of the offence alleged against the petitioner on the basis of AnnexureA2 report filed by the Sub Inspector in view of the bar contained in Section 22 of the Act. 5. Section 4(1) of the Act provides that no person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and Crl.M.C.No.297/2014 4 conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under the Act and the rules made thereunder. Section 21(1) of the Act, as it stood on the date of commission of the offence, provided that whoever contravenes the provisions of sub-section (1) or subsection (1A) of Section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty - five thousand rupees, or with both. 6. Section 21(6) of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under sub-section (1) of Section 21 shall be cognizable. Section 22 of the Act states that no Court shall take cognizance of any offence punishable under the Act or any rules made thereunder except upon complaint in writing made by a person authorised in that behalf by the Central Government or the State Government. 7. In view of Section 21(6) of the Act, the offence punishable under Section 4(1) read with 21(1) of the Act is cognizable. It means that the police can arrest a person who has committed the aforesaid offence, register case against him and Crl.M.C.No.297/2014 5 conduct investigation of the case. But, if the offender is to be prosecuted, a duly authorised officer has to make a complaint to the Magistrate concerned. 8. The petitioner has no case that a Sub Inspector of Police is not an officer authorised under Section 22 of the Act to make a complaint regarding commission of the offence under Section 4(1) read with 21(1) of the Act. In fact, the decisions of this Court in **Aloshias C. Antony v. Chief Secretary: 2014 (1) KHC 329 : 2014 (1) KLT 536 and Prakash Nayak v. District Collector: 2016 (4) KHC 915: 2016 (4) KLT 102,** give the indication that the Government of Kerala has issued notification appointing different categories of persons of various departments including police officers of and above the rank of Sub Inspector in the State to launch prosecution under Section 22 of the Act. Therefore, it cannot be found that a Sub Inspector of Police is not an officer authorised under Section 22 of the Act. 9. There can be no doubt with regard to the fact that the court cannot take cognizance of the offence under Section 4(1) read with 21(1) of the Act upon a police report filed under Section 173(2) of the Code of Criminal Procedure, 1973 Crl.M.C.No.297/2014 6 (hereinafter referred to as 'the Code'). Cognizance of such offence can be taken only on a written complaint as envisaged under Section 22 of the Act. The crucial question is whether Annexure-A2 report filed by the Sub Inspector is a complaint or not. 10. Annexure-A2 report filed by the Sub Inspector is not in the prescribed form for filing a report under Section 173(2) of the Code. Annexure-A2 report is described therein as “complaince report”. No doubt, there is no prescribed form or nomenclature for a complaint. The nomenclature is immaterial. However, a perusal of Annexure-A2 report shows that it has got all the main characteristics of a report filed under Section 173(2) of the Code except that it is not in the form prescribed for filing such a report. The process of investigation conducted by the Sub Inspector is narrated in Annexure-A2 report. The documents which shall be forwarded along with a report under Section 173(2) of the Code were also forwarded to the court along with Annexure-A2 report. These documents include the notes of examination of witnesses. The only thing is that they are not described as statements of witnesses recorded under Section 161 Crl.M.C.No.297/2014 7 of the Code. In the aforesaid circumstances, I am of the considered view that Annexure-A2 report cannot be treated as a complaint. It is to be noted that as per the definition of 'complaint' given under Section 2(d) of the Code, it does not include a police report. What is really submitted before the lower court is a police report under the guise of a complaint. Therefore, cognizance of the offence punishable under Section 4(1) read with 21(1) of the Act taken by the learned Magistrate on the basis of Annexure-A2 report cannot be sustained in view of the bar contained in Section 22 of the Act. Consequently, the petition is allowed. All proceedings against the petitioner alone in the case S.T.No.1972/2012 on the file of the Court of the Judicial First Class Magistrate, Sasthamcotta, based on Annexure-A2 report, are hereby quashed. (Sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/16/05/2019 Crl.M.C.No.297/2014 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 ANNEXURE A1- CERTIFIED COPY OF THE FIR NO.1448, DATED 28.12.2011 OF THE SOORANADU POLICE STATION.** **ANNEXURE P2** **ANNEXURE A2- CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BEFORE THE J.F.C.M.COURT, SASTHAMCOTTA IN CRIME NO.1448 OF 2011, DATED 28.12.2011.** ## **RESPONDENTS' EXHIBITS:** **NIL** **TRUE COPY** **PS TO JUDGE**