Vijeesh s/o Kelu Vediyath vs The State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 CRL.MC NO. 361 OF 2013 CRIME NO.129/2007 OF Malappuram Police Station, Malappuram [CC No.519/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS,MALAPPURAM, ## MALAPPURAM ## PETITIONER/ACCUSED: VIJEESH S/O.KELU VEDIYATH HOUSE PONMALA AMSOM, DESOM, MALAPPURAM DISTRICT BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH ## RESPONDENT/STATE: THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31 THROUGH THE SUB INSPECTOR OF POLICE, MALAPPURAM POLICE STATION, MALAPPURAM DISTRICT THIS CRIMINAL MISC. CASE HAVING BEING FINALLY HEARD ON 13.10.2021, THE COURT ON 25.10.2021 PASSED THE FOLLOWING: Crl.MC No.361 of 2013 2 ## ORDER The petitioner is the sole accused in L.P.No.11/2009 in C.C.No.519/2007 on the file of the Judicial First Class Magistrate Court, Malappuram which is arising out of Crime No.129/2007 of Malappuram Police Station. 2. The offences alleged against the petitioner are punishable under Sections 4(1)(a) r/w. 21(1) of the Minor Mineral Development and Regulation Act (in short ‘MMDR Act’) and Section 12(2)(b)(x)r/w. Section 20 and 21 of the Kerala River Bank Protection and Regulation of Removal of Sand Act, 2002(in short ‘Sand Act’). The allegation against the petitioner is that on 21.2.2007 at 3.30 p.m., the accused, who was the driver of a mini lorry bearing registration No.KEK/1122 was found transporting river sand and thus he was implicated in the above crime and after investigation, Annexure-A charge sheet was filed for the said Crl.MC No.361 of 2013 3 offence. 3. The case of the petitioner is that the cognizance taken by the learned Magistrate on the basis of Annexure-A charge sheet is improper as it is against the statutory stipulations contained under Section 22 of the MMDR Act and also under Section 25 of the Sand Act. Section 25 of the Sand Act ( _as stood prior to the amendment by Act 15 of 2013_ ) reads as follows: _"25. Cognizance of offences . - No court shall take cognizance of any offence punishable under this Act, except upon a complaint in writing made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology.”_ Similarly Section 22 of the MMDR Act provides that; “No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon a complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.” 4. By placing reliance upon the aforesaid Crl.MC No.361 of 2013 4 statutory provisions, the learned counsel points out that Annexure-A is a final report filed under Section 173(2) of the Code of Criminal Procedure (Cr.PC) which cannot be treated as a complaint as contemplated under the above provisions. In such circumstances, he seeks to invoke the powers of this Court under Section 482 Cr.PC and to quash the proceedings pursuant to Annexure-A final report. 5. On examination of the aforesaid provisions, it can be seen that there is some force in the contention put forward by the learned counsel for the petitioner. The complaint is defined under Section 2(d) of the Cr.PC which reads as follows: “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Act, that some person, whether known or unknown, has committed an offence, but does not include a police report. From the perusal of the said provision, it can be seen that a police report is specifically excluded Crl.MC No.361 of 2013 5 from the purview of a complaint. Police report has been defined under Section 2(r) of the Cr.PC which reads as follows: “Police report” means a report forwarded by a police to a Magistrate under sub section(2) of Section 173. A perusal of Annexure-A would reveal that it is a police report submitted under Section 173(2) of the Cr.PC and hence it is a police report as defined under Section 2(r)of Cr.PC. Since the police report is specifically excluded in the complaint as defined under Section 2(d) of Cr.PC, by virtue of operation of Section 22 of the MMDR Act and Section 25 of the Sand Act, cognizance taken on Annexure-A complaint is not legally sustainable. A Full Bench of this Court in Prakash Nayak v. District Collector, Kasaragod and Others (2016(4) KLT 102) has categorically held as follows: _“We accordingly find that the relief as sought by the writ petitioners cannot be granted. We reiterate that as regards the general police powers under the Code of_ Crl.MC No.361 of 2013 6 _Criminal Procedure for arrest and seizure, there cannot be any doubt or challenge, when such powers are not specifically ousted or excluded by any special or local law. There are provisions in the MMDR Act, authorizing the Government to appoint other categories of officers also to make seizure and to initiate prosecution. We find that this is only in addition to the general powers given to the police under the Code of Criminal Procedure. However, as regards cognizance of offences, there is a specific provision under S.22, and once cognizance otherwise than on complaint as prescribed under the law is barred, such cognizance under the Code of Criminal Procedure may not be possible. Only to that extent, the general powers of police under the Code of Criminal Procedure will stand excluded. In view of the specific provisions in S.22 of the MMDR Act, prosecution on the basis of a final report under S.173(2) Cr.PC is not possible. As regards the other police powers including arrest and seizure, there is no specific exclusion by the special law, and so, such general powers can be exercised by the police, including the powers to make arrest, and to seize properties.”_ Similarly in Ismayil and others v. State of Kerala and others (2010 (3) KLT 706) a Division Bench of this Court considered the said question under the provisions of Sand act and held that, cognizance Crl.MC No.361 of 2013 7 cannot be taken on a final report submitted under Section 173(2) of Cr.PC. In the light of the above legal preposition, Annexure-A final report and the proceedings pursuant to the same are not legally sustainable and accordingly it is quashed. However, it is made clear that the quashing of the proceedings before the Judicial First Class Magistrate Court, Malappuram on Annexure-A complaint will not be a bar for the authorized officer to file complaints before appropriate authorities in accordance to law, if permissible. Crl.M.C. is allowed as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk Crl.MC No.361 of 2013 8 ## APPENDIX ANNEXURE A: TRUE COPY OF THE CHARGE SHEET IN CRIME NO.129/2007 OF THE MALAPPURAM POLICE STATION.