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High Court of KeralaSingle JudgeCrl.MC stands dismissed

R. Kanakaraj v. State of Kerala & Sub Inspector of Police, Punalur

Case / Petition Number:Crl.MC.No. 255 of 2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B. Sudheendra Kumar
Judgment Date
2019-02-04
Court Decision / Holding
In the result, this Crl.M.C. stands dismissed.
Final Disposition
Crl.MC stands dismissed

Parties to the Case

Appellants / Petitioners

  • R. Kanakaraj

Respondents

  • State of Kerala represented by the Public Prosecutor, High Court of Kerala
  • Sub Inspector of Police, Punalur Police Station

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Rajesh P. Nair

Counsels for Respondents

  • • Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

The petitioner, R. Kanakaraj, challenges the order/judgment in S.T. No. 5099/2011 of the Judicial First Class Magistrate Court-III, Punalur, concerning Crime No. 1375/2010 under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. In Crl.MC 255/2019, he seeks to quash the complaint and ongoing proceedings. The High Court examines Section 25 of the Act, which, after amendments, governs cognizance with respect to offences under the Act. The petitioner relies on Ismayil v. State of Kerala and Noushad v. State of Kerala to argue that a police report cannot be treated as a complaint under the Act and that Section 25 is mandatory. The Court accepts that the 2007 SRO (64/2007) authorized police to file a complaint in writing and that Act 15 of 2013 (effective 25.11.2012) amended Section 25 to permit cognizance on police reports under Cr.P.C. 173(2). The offence date was 6.12.2010; Annexure-A2 is a police complaint, not a final report, and there is no fixed form for filing a complaint. The Court, relying on the amended framework, holds that the police had the power to file a complaint and that Annexure-A2 can constitute a complaint for cognizance. Consequently, the petition to quash is dismissed, and the Crl.MC stands disposed.

Provisions of Law Cited

Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001Section 25 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001SRO No.64/2007Act 15 of 2013 (amendment to Section 25)Section 173(2) Cr.P.C.

Legal Doctrines & Maxims

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that Section 25 of the Act is mandatory and that cognizance can be taken only on a complaint filed by an authorised officer; a police report cannot be treated as a complaint under the Act. He relied on Ismayil v. State of Kerala (2010) and Noushad v. State of Kerala (2017) to assert that the police report cannot substitute for a complaint. He contended that prior to 2007, police could not file a complaint, and thus the proceedings should be quashed.

Contentions of Respondents

The respondents argued that the law was amended by SRO 64/2007, authorising police officers to file a complaint in writing, and later by Act 15 of 2013 (effective 2012) to permit cognizance on a police report under Cr.P.C. 173(2). They contended that Annexure-A2 is a complaint filed by the SHO and that the amended provisions allow cognizance on police reports, thus the petition to quash should fail.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Ismayil v. State of Kerala2010(3) KLT 706DistinguishedThe court notes Ismayil held that a police report cannot be treated as a complaint under the Act; however, subsequent amendments (SRO 64/2007 and Act 15 of 2013) alter the regime, justifying distinguishing the earlier decision.
Noushad v. State of Kerala2017(1) KLT 464DistinguishedNoushad was relied upon by the petitioner to assert mandatoriness of Section 25; the court distinguishes it in light of the amendments enabling cognizance on police reports.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY ,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** ## **Crl.MC.No. 255 of 2019** **AGAINST THE ORDER/JUDGMENT IN ST 5099/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR** **CRIME NO. 1375/2010 OF PATHANAPURAM POLICE STATION, KOLLAM** ## **PETITIONER/S:** **R.KANAKARAJ AGED 48 YEARS S/O. RAMASWAMY, EDAVILAKOM VEEDU, KUZHITHURA VILLAGE, VILAVANCODE THALUK, KANYAKUMARI DISTRICT.** **BY ADV. SRI.RAJESH P.NAIR** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. 2 SUB INSPECTOR OF POLICE PUNALUR POLICE STATION, PUNALUR, PATHANAPURAM, KOLLAM-691 305.** ## **OTHER PRESENT:** **(PP) SMT. V. SREEJA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 255 of 2019** -2- ## **ORDER** **The petitioner is the second accused in S.T.No.5099/2011 on the files of the court below. The offences alleged are punishable under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (in short, “the Act”)** **2. The petitioner has filed this Crl.M.C. praying for quashing the complaint and further proceedings against the petitioner in the above case.** **3. Heard. 4. The learned counsel for the petitioner has submitted that in view of the provisions of Section 25 of the Act, no** ## **Crl.MC.No. 255 of 2019** -3- **court can take cognizance of any offence under the Act, except upon a complaint in writing made by a person authorised in this behalf by the State Government or the District Collector or a Geologist of the Department of Mining and Geology and hence the court cannot take cognizance of the offence under the Act on the basis of the police report.** **5. The learned counsel for the petitioner has relied on the decision of the Division bench in Ismayil v. State of Kerala [2010(3) KLT 706] and argued that the police report cannot be treated as complaint for the purpose of the Act. The learned counsel relied on the decision of this Court in** ## **Crl.MC.No. 255 of 2019** -4- **Noushad v. State of Kerala [2017(1) KLT 464] and argued that the provisions of Section 25 of the Act is mandatory.** **6. It is true that the police had no authority to file a complaint in respect of the offence under the Act till 2007.** **However, as per SRO No.64/2007, the Government of Kerala** _**inter alia**_ **authorised the Superintendents of Police and Station House Officers to exercise the power to make a complaint in writing in respect of any offence punishable under the Act. The said notification was published in the Gazette dated 18.01.2007. Thereafter, as per Act 15 of 2013, which came into force with effect from 25.11.2012, the amendment was brought** ## **Crl.MC.No. 255 of 2019** -5- **in to Section 25 of the Act to the effect that the court can take cognizance even upon a police report under Section 173(2) Cr.P.C. The offence alleged in this case was committed on 6.12.2010. Therefore, there cannot be any dispute that the police had the power at the relevant period to file the complaint.** **7. It is clear from the provisions of Section 25 of the Act that Section 25 of the Act is mandatory and the court could take cognizance in respect of the offence till 17.01.2007 on the basis of the complaint filed by the authorised officer alone. As per SRO No.64/2007, the amendment was brought in with effect from 18.01.2007,** ## **Crl.MC.No. 255 of 2019** -6- **as per which, on the basis of complaint filed by the Station House Officer also, the court can take cognizance.** **8. In this case, I have gone through Annexure-A2. Annexure-A2 is the complaint filed by the Station House Officer and it is not a final report filed by the police. The final report will be filed by the police as provided under Section 173(2) Cr.P.C. Having gone through Annexure-A2, it appears that Annexure-A2 is the complaint filed by the Station House Officer concerned. Therefore, it cannot be equated with the final report filed by the police under Section 173(2) Cr.P.C. It is not disputed that there is no particular form for filing** **Crl.MC.No. 255 of 2019** **the complaint.** **9. In view of the above reason, the arguments advanced by the learned counsel for the petitioner that Annexure-A2 is not a complaint, cannot be accepted at all. No other ground has been urged to quash the complaint and further proceedings against the petitioner.** **In the result, this Crl.M.C. stands** **dismissed.** Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE// **Crl.MC.No. 255 of 2019** -8- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE F.I.R NO.1375/2010 IN S.T.NO.5099/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALUR ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT/COMPLIANCE REPORT IN S.T.NO.5099/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTIII, PUNALUR.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY// P.A. TO JUDGE** **STK**