High Court of KeralaSingle Judge2021-12-01Quashed

Rajan Frederic & Ansyrajan; Rinsa Susan Philip, Francis George Frederic & Thomas George Frederic v. State of Kerala (Crl.M.C. Nos. 4230/2020 & 4993/2020, High Court of Kerala)

Case / Petition Number:CRL.MC 4230 of 2020; CRL.MC 4993 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Ziyad Rahman A.A.
Judgment Date: 2021-12-01
Court Decision / Holding: Both Crl.M.Cs. Nos.4230/2020 and 4993/2020 are allowed; all proceedings in C.C.No.84/2020, arising from Crime No.37/2015 (Maradu), are quashed.
Final Disposition: Quashed

Parties to the Case

Appellants / Petitioners

Rajan Frederic
Ansyrajan
Rinsa Susan Philip
Francis George Frederic
Thomas George Frederic

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Sub Inspector of Police, Maradu Police Station, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Deepu Thankan
• Smt. Ummul Fida
• Smt. Lakshmi Sreedhar

Counsels for Respondents

• Public Prosecutor, State of Kerala
• Sri Sudheer Gopalakrishnan (Public Prosecutor)

Case Synopsis & Summary

These two Criminal Miscellaneous Cases challenge the proceedings in C.C. No.84/2020 on the file of the Chief Judicial Magistrate, Ernakulam, arising from Crime No.37/2015 of Maradu Police Station. Petitioners in Crl.M.C. No.4230/2020 are Rajan Frederic and Ansyrajan; petitioners in Crl.M.C. No.4993/2020 are Rinsa Susan Philip, Francis George Frederic, and Thomas George Frederic. The offences alleged are under Section 188 IPC read with Section 34, and Section 23 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The petitioners contend that cognizance for these offences was not properly taken under Section 195 Cr.P.C., which requires a complaint in writing by the officer whose orders were violated, and under Section 25 of the Paddy Land Act. The prosecution opposes the challenge. The High Court notes that cognizance was taken on the basis of a police report under Section 173, which is not contemplated under Section 195 Cr.P.C., and that, at the relevant time, Section 25 of the Paddy Land Act applied, requiring a report by a competent officer. The court relies on Murugan v. State of Kerala (2014) to hold that the procedure renders the cognizance unsustainable. Additionally, Annexures show RDO orders that a portion of the land had been removed from the data bank before enactment’s effect, undermining the case’s gravity. Consequently, the court exercises its inherent power under Section 482 Cr.P.C to quash the proceedings. The petitions are allowed, and CC 84/2020 is quashed.

Provisions of Law Cited

Section 188 IPCSection 34 IPCSection 195 Cr.P.CSection 23 Kerala Conservation of Paddy Land and Wetland Act, 2008Section 25 Kerala Conservation of Paddy Land and Wetland Act, 2008Section 173 Cr.P.CSection 482 Cr.P.C

Legal Doctrines & Maxims

Inherent jurisdiction of the High Court under Section 482 Cr.P.C to quash proceedings
Cognizance of offences under IPC Sections 172-188 can be taken only on a written complaint by the officer whose orders were violated (Section 195 Cr.P.C)
Cognizance under the Paddy Land Act must be on a report by an officer authorized under the Act (Section 12(1) read with Section 25) (as applicable at the relevant time)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that none of the offences in Annexure A1 can be sustained because cognizance was taken in violation of Section 195 Cr.P.C, which prescribes cognizance only on a written complaint by the officer whose orders were violated. They contended that Section 25 of the Paddy Land Act required cognizance to be by a report of an officer authorized under the Act, and that the action here relied on a police report under Section 173, which is impermissible under Section 195. They highlighted that Section 25 was in force at the relevant time and the RDO’s prohibitory orders show the land was already reclaimed from the data bank, diminishing the criminal gravity. Therefore, the proceedings are vitiated, and the High Court should exercise its inherent power to quash under Section 482 Cr.P.C.

Contentions of Respondents

The State’s counsel opposed the challenge, arguing that cognizance was properly taken and that the offences are sustainable. He argued that the final report under Section 173 formed a valid basis for proceedings, and that the Act’s provisions and the accompanying data-bank records supported the prosecution’s case. He submitted that the omissions related to remedial formalities rather than fundamental invalidity and that the Court should not exercise its extraordinary jurisdiction to quash.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Murugan v. State of Kerala	2014(2) KHC 150	Positive	Cited to support the proposition that cognizance cannot be taken on a police report under Section 195 Cr.P.C; favouring the petitioners’ challenge to the cognizance in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

Crl.MC No.4230 & 4993 of 2020 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 CRL.MC NO. 4230 OF 2020 [AGAINST C.C.NO.84/2020 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ARISING OUT OF CRIME NO.37/2015 OF ## MARADU POLICE STATION] ## PETITIONERS/ACCUSED NOS.1 AND 2: 1 RAJAN FREDERIC,AGED 64 YEARS S/O.FRANCIS FREDERIC, 55/1900A, PARAYIL HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA P.O., ERNAKULAM682020. 2 ANSYRAJAN,AGED 62 YEARS W/O.RAJAN FREDERIC, 55/1900A, PARAYIL HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA P.O., ERNAKULAM682020. BY ADVS. DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR ## RESPONDENTS: 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 SUB INSPECTOR OF POLICE, MARADU POLICE STATION, ERNAKULAM-682304. ## OTHER PRESENT: R1 AND R2 BY PP-SRI.SUDHEER GOPALAKRISHNAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.12.2021, ALONG WITH Crl.MC.4993/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC No.4230 & 4993 of 2020 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 CRL.MC NO. 4993 OF 2020 [AGAINST C.C.NO.84/2020 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ARISING OUT OF CRIME NO.37/2015 OF MARADU POLICE STATION] ## PETITIONERS/ACCUSED NOS.2,3 & 5: 1 RINSA SUSAN PHILIP AGED 34 YEARS W/O.FRANCIS GEORGE FREDERIC,RESIDING AT PARAYIL HOUSE,CHILAVANNOOR ROAD, KADAVANTHARA,KOCHI-682020. 2 FRANCIS GEORGE FREDERIC, AGED 34 YEARS S/O.RAJAN FREDERIC,RESIDING AT PARAYIL HOUSE,CHILAVANNOOR ROAD,KADAVANTHARA, KOCHI-682020. 3 THOMAS GEORGE FREDERIC, AGED 27 YEARS S/O.MR.RAJAN FREDERIC,PARAYIL HOUSE, CHILAVANNOOR ROAD,KADAVANTHARA, KOCHI-682020. BY ADVS. DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR ## RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2 SUB INSPECTOR OF POLICE, MARADU POLICE STATION,ERNAKULAM-682304. THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.12.2021, ALONG WITH Crl.MC.4230/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC No.4230 & 4993 of 2020 3 ## O R D E R [Crl.MC Nos.4230/2020, 4993/2020] ... Both these Crl.M.Cs. are filed challenging the proceedings in C.C.No.84/2020 on the file of the Chief Judicial Magistrate Court, Ernakulam which arises from Crime No.37/2015 of Maradu Police Station. The petitioners in Crl.MC No.4230/2020 are accused numbers 1 and 2 whereas the petitioners in Crl.M.C.No.4993/2020 are accused Nos.3,4 and 5. 2. The offences alleged against the petitioners are under Section 188 r/w. Section 34 of the Indian Penal Code and also under Section 23 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as Paddy Land Act). The allegation against the petitioners is that, in violation of the prohibitory order passed by the Revenue Divisional Officer, the property included as paddy land in the data bank has been re-claimed by the petitioners. The cause of action was stated to have occurred prior to 7.1.2015 and the property mentioned therein Crl.MC No.4230 & 4993 of 2020 4 comprised in Resurvey No.416/2 in Block No.13 of Maradu Village. These Crl.MCs. are filed by the petitioners to quash the aforesaid proceedings. 3. Heard Sri. Deepu Thankan, the learned counsel for the petitioners and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the respondents. 4. The learned counsel for the petitioners contends that, the petitioners cannot be proceeded against for any of the offences alleged in Annexure-A1 final report, as the prosecution pursuant to the same are unsustainable in view of the specific bar contained under Section 195 of the Code of Criminal Procedure (Cr.PC) and also under section 25 of Paddy Land Act. 5. The learned Public Prosecutor opposes the said contention. 6. As far as the offence under Section 188 of the IPC is concerned, Section 195 of Cr.P.C provides that no court shall take cognizance of any offences punishable under Sections 172 to 188 (both Crl.MC No.4230 & 4993 of 2020 5 inclusive) of the Indian Penal Code, except on a complaint in writing, by such officer of the court or the public servant whose orders were alleged to have been violated by the accused persons . However, in this case, the cognizance has been taken on the basis of a police report submitted under Section 173 of the Cr.PC which is not contemplated under Section 195 of Cr.P.C. Going by the stipulations contained in Section 195 of the Cr.PC, cognizance can be taken only on the basis of a complaint submitted by the officer of whose order has been violated. In the facts and circumstances of the case, cognizance can be taken only on the basis of a complaint submitted by the Revenue Divisional Officer or any of the officers subordinate to him. In this case, cognizance was taken on the basis of a police report under Section 173 of the Cr.PC on a complaint submitted by the Village Officer and Agricultural Officer, Maradu, which is not permissible by virtue of Section 195 Cr.PC. The position of law is settled in favour of Crl.MC No.4230 & 4993 of 2020 6 the petitioners as per the judgment in Murugan v. State of Kerala [2014(2) KHC 150] . The legal position put forward by the learned counsel for the petitioners is clearly considered therein and is found in their favour. 7. With regard to the offence under Section 23 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, it was contended by the learned counsel for the petitioners that, the act of taking cognizance of the same is bad due to the operation of Section 25 of the said Act. As per Section 25 of the said Act, no court below the rank of Chief Judicial Magistrate Court shall take cognizance of any of the offences punishable under the Act, except on a report in writing of the fact constituting such offence by an officer authorized under sub-section (1) of Section 12. The act of taking cognizance in respect of Section 23 of the Kerala Conservation of Paddy Land and Wetland Act is against the stipulation contained in Section 25 of the said Act which specifically contemplates that a complaint Crl.MC No.4230 & 4993 of 2020 7 has to be filed by the officer specifically authorised in this behalf. Here again, as mentioned above, the cognizance was taken on the basis of a police report. It is true that Section 25 has been omitted from the Kerala Conservation of Paddy Land and Wetland Act, 2008 with effect from 30.12.2017. However, in this case, cause of action has arisen prior to the omission of the said provision from the Act and therefore at the relevant time Section 25 was in force. Thus, on that ground also, the proceedings against the petitioners are vitiated. 8. Apart from the above, the learned counsel for the petitioners brought my attention to Annexures A7 to A10, which are the proceedings of the Revenue Divisional Officer who has passed Annexure-A11 prohibitory order. The aforesaid orders would indicate that the property which was the subject matter of Annexure-A11 prohibitory order, was subsequently ordered to be removed from the data bank, as it was found that the property was reclaimed even before the enactment of Kerala Crl.MC No.4230 & 4993 of 2020 8 Conservation of Paddy Land and Wetland Act, 2008. So, no fruitful purpose would be served by conducting a trial in this case. 9. Thus in any view of the matter, none of the offences alleged against the petitioners are legally sustainable and the act of taking cognizance is also not in the manner as contemplated under Section 195 of the IPC and also under Section 25 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. In such circumstances, I am of the view that this is a fit case in which the extra ordinary jurisdiction of this Court under Section 482 of Cr.PC can be invoked. In the result, both these Crl.MCs. are allowed and all proceedings in C.C.No.84/2020 on the file of the Chief Judicial Magistrate Court, Ernakulam which arises from Crime No.37/2015 of Maradu Police Station are hereby quashed. Sd/- pkk ZIYAD RAHMAN A.A., JUDGE Crl.MC No.4230 & 4993 of 2020 9 ## APPENDIX OF CRL.MC 4230/2020 |PETITIONER’S|ANNEXURES:| |---|---| |ANNEXURE A1|CERTIFIED COPY OF THE FINAL REPORT DATED| ||30.04.2017 IN CRIME NO.37/2015 OF MARADU| ||POLICE STATION.| |ANNEXURE A2|TRUE COPY OF THE BUILDING PERMIT OBTAINED| ||BY THE PREVIOUS OWNER OF THE PROPERTY DATED| ||18.07.2006.| |ANNEXURE A3|TRUE COPY OF THE RELEVANT PAGES OF THE| ||DRAFT DATA BANK PREPARED BY THE LLMC OF| ||MARADU MUNICIPALITY.| |ANNEXURE A4|TRUE COPY OF THE RELEVANT PAGES OF THE DATA| ||BANK PREPARED BY THE LLMC OF MARADU| ||MUNICIPALITY.| |ANNEXURE A5|TRUE COPY OF THE REPORT OF ADDITIONAL| ||TAHSILDAR, KANAYANNOOR DATED 01.08.2013.| |ANNEXURE A6|TRUE COPY OF THE CERTIFICATE NO.215/2014| ||DATED 14.10.2014 ISSUED BY THE VILLAGE| ||OFFICER, MARADU.| |ANNEXURE A7|TRUE COPY OF THE ORDER OF THE RDO DATED| ||13.06.2019.| |ANNEXURE A8|TRUE COPY OF THE ORDER OF THE RDO DATED| ||13.06.2019.| |ANNEXURE A9|TRUE COPY OF THE ORDER OF THE RDO DATED| ||13.06.2019.| |ANNEXURE A10|TRUE COPY OF THE ORDER OF THE RDO DATED| ||15.06.2019.| |ANNEXURE A11|TRUE COPY OF THE PROHIBITORY ORDER OF THE| ||RDO DATED 15.11.2014.| Crl.MC No.4230 & 4993 of 2020 10 ## APPENDIX OF CRL.MC 4993/2020 |PETITIONER’S|ANNEXURES:| |---|---| |ANNEXURE A1|CERTIFIED COPY OF THE FINAL REPORT DATED| ||30.04.2017 IN CRIME NO.37/2015 OF MARADU| ||POLICE STATION.| |ANNEXURE A2|TRUE COPY OF THE BUILDING PERMIT OBTAINED| ||BY THE PREVIOUS OWNER OF THE PROPERTY DATED| ||18.07.2006.| |ANNEXURE A3|TRUE COPY OF THE RELEVANT PAGES OF THE| ||DRAFT DATA BANK PREPARED BY THE LLMC OF| ||MARADU MUNICIPALITY.| |ANNEXURE A4|TRUE COPY OF THE RELEVANT PAGES OF THE DATA| ||BANK PREPARED BY THE LLMC OF MARADU| ||MUNICIPALITY.| |ANNEXURE A5|TRUE COPY OF THE REPORT OF ADDITIONAL| ||TAHSILDAR, KANAYANNOOR DATED 01.08.2013.| |ANNEXURE A6|TRUE COPY OF THE CERTIFICATE NO.215/2014| ||DATED 14.10.2014 ISSUED BY THE VILLAGE| ||OFFICER, MARADU.| |ANNEXURE A7|TRUE COPY OF THE ORDER OF THE RDO DATED| ||13.06.2019.| |ANNEXURE A8|TRUE COPY OF THE ORDER OF THE RDO DATED| ||13.06.2019.| |ANNEXURE A9|TRUE COPY OF THE ORDER OF THE RDO DATED| ||13.06.2019.| |ANNEXURE A10|TRUE COPY OF THE ORDER OF THE RDO DATED| ||15.06.2019.| |ANNEXURE A11|TRUE COPY OF THE PROHIBITORY ORDER OF THE| ||RDO DATED 15.11.2014.| |ANNEXURE A12|TRUE COPY OF THE JUDGMENT IN WPC NO.| ||6662/2020 DATED 5.3.2020.| |ANNEXURE A13|TRUE COPY OF THE JUDGMENT IN WPC| ||NO.6665/2020 DATED 5.3.2020| |ANNEXURE A14|TRUE COPY OF THE INTERIM ORDER DATED| ||22.10.2020 IN CRL.MP NO.1/2020 IN CRL.MC| ||NO.4230/2020.|