Dismissed

Suresh v. State of Kerala

Kerala HC15 Mar 2010Crl.MC/868/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal miscellaneous petition by petitioners accused in CC254/2009. They contested the Magistrate's cognizance taken on a police report (Annexure-A1) alleging it should have been a formal complaint under the Mines and Minerals Act and Kerala River Banks Act. The Court refused to quash proceedings under Section 482 CrPC, holding that the document, though label

What did the court decide?

Petition to quash the criminal proceedings is dismissed; petitioners at liberty to raise contentions before the Magistrate.

Suresh Vs State of Kerala — Quashing and FIR | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931

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Crl.MC.No. 868 of 2010() ----------------------------------CC.254/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR ....................

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PETITIONERS/ACCUSED NO.1 TO 4

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----------------------------------------------------

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1. SURESH, AGED 32 YEARS, S/O.PODIYAN, VADAKKADATH THAZHATHIL, MANNADY THAZHATHU MURIYIL, KADAMPANAD VILLAGE, ADOOR.

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2. RAJENDRAN @ RAJAN, AGED 57 YEARS, S/O.KRISHNAN, AMBIYIL PADINJAREPURAYIL, MANNADY THAZHATHU MURIYIL, KADAMPANAD VILLAGE, ADOOR.

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3. KUTTAPPAN, AGED 55 YEARS, S/O.PADMANABHAN, AMBIYIL THAZHETHUNDIL VADAKKEPURAYIL, MANNADY THAZHATHU MURIYIL, KADAMPANAD VILLAGE, ADOOR.

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4. PUNDAREEKASHAN, AGED 52 YEARS, S/O.VELAYUDHAN, AMARAVILA VEETTIL, THUVAYUR THEKKU MURIYIL, KADAMPANAD VILLAGE, ADOOR.

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BY ADV. MR.K.SHAJ, MR.SAJJU.S.

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RESPONDENT(S):

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---------------------------

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR MR.S.U. NAZAR.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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M.SASIDHARAN NAMBIAR,J.

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CRL.M.C.NO.868 OF 2010 ------------------------------------------ Dated 15^th March 2010

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O R D E R

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Petitioners are the accused in

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C.C.254/2009 on the file of Judicial First Class Magistrate, Adoor taken cognizance for the offence under Sections 4 and 21 of Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the M.M.D.R Act) and Section 23 of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 on Annexure-A1 submitted by Sub Inspector of Police, Enath police station. Petition is filed under Section 482 of Code of Criminal Procedure contending that learned Magistrate could not have taken cognizance of the offence under M.M.D.R Act except on

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Crmc 868/10

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a complaint as provided under Section 22 of the

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M.M.D.R Act or for an offence under Section

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Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 except on a complaint as provided under Section 25 of that Act and as Annexure-A1 is not a complaint, but a police report, cognizance taken is bad and it is to be quashed.

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Learned counsel appearing for the

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petitioner and learned Public Prosecutor were heard.

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Argument of the learned counsel

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relying on the decisions of this court in Abdul

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Azeer v. State of Kerala (2010 (1) KLT 394), Moosakoya v. State of Kerala (2008 (1) KLT 538 and Vijayan and others v. Sub Inspector of

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Police, Adoor and another (2010 (1) KLT 279 )

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is that when cognizance was taken on Annexure-

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Crmc 868/10

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A1 report submitted by the Sub Inspector of

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Police, which is not a complaint as defined

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under Section 2(d) of Code of Criminal

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Procedure, the cognizance taken is illegal.

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Learned Public Prosecutor pointed

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out that Annexure-A1 is not a final report in the prescribed form, as provided under Section 173(2) of Code of Criminal Procedure and though nomenclature is wrongly shown as report, it is in fact a complaint.

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Annexure-A1 though shown as a

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report submitted by Sub Inspector, the Sub Inspector is an officer authorized under M.M.D.R Act as well as the Kerala Protection of River Banks and Regulation of Removal of

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Sand Act, 2001. Annexure-A1 is not in form

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provided for filing a final report under Section 173(2) of Code of Criminal Procedure.

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Crmc 868/10

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Hence though it is shown as a report, it cannot be termed as a final report under Section 173 (2). In such circumstances, when the cognizance is taken on the report submitted by the Sub Inspector of police, which is not a final report as provided under Section 173(2) of Code of Criminal Procedure and the Sub Inspector is an officer under the Act, it is not for this court to quash the proceedings invoking the extra ordinary powers under Section 482 of Code of Criminal Procedure. Petitioners are at liberty to raise all the contentions before the learned Magistrate.

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Petition is dismissed.

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M.SASIDHARAN NAMBIAR, JUDGE.

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uj.

Suresh v. State of Kerala

Case brief

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Suresh v. State of Kerala

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