In this criminal miscellaneous case, the Kerala High Court was asked to quash proceedings under the Protection of River Banks and Regulation of Removal of Sand Act based on a nature of the document used for initiating the case.
Petitioner granted exemption from personal appearance before the court below except on dates when his presence is actually required.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937
Crl.MC.No. 107 of 2015
C.C.NO.906/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM
CRIME NO. 753/2010 OF KUNDARA POLICE STATION , KOLLAM
PETITIONER(S)/FIRST ACCUSED :
BINU, AGED 31 YEARS, S/O.SUBAKKI THOMAS, PAYAS BHAVAN, CHERUMOODU, PERINADU, KOLLAM DISTRICT.
BY ADV. SRI.V.PHILIP MATHEW
RESPONDENT(S)/STATE :
1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.
2. SUB INSPECTOR OF POLICE,
BY PUBLIC PROSECUTOR SMT.P.MAYA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
Crl.MC.No. 107 of 2015
APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE A1: COPY OF FIR NO. 753/2010 IN CRIME NO. 753/2010. ANNEXURE A2: COPY OF FINAL REPORT/COMPLIANCE REPORT IN CRIME NO. 753/2010.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.S.TO JUDGE.
Msd.
B. KEMAL PASHA, J.
................................................................ CRL.M.C. No. 107 of 2015 ............................................................... Dated this the 17th day of February, 2016
O R D E R
The petitioner is the first accused in C.C.No.906/2010 pending before the Judicial First Class Magistrate's Court-I, Kollam, which has arisen from Crime No.753/2010 of the Kundara Police Station, for the offences punishable under Sections 20 and 21 of the Protection of River Banks and Regulation of Removal of Sand Act, 2001(hereinafter referred to as 'the Act'). The case is as a result of a complaint preferred by the Sub Inspector of Police, Kundara alleging the aforesaid offences. It is alleged that on 07.05.2010 at 8.15 a.m. the petitioner and the other accused were found illegally excavating and collecting river sand, thereby violating the provisions of the Act and
CRL.M.C.No. 107 of 2015
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committing the offences punishable under Sections 20 and 21 of the said Act.
that the prosecution proceedings are not legally sustainable as the Sub Inspector of Police, who had registered the crime and thereafter conducted the investigation had filed Annexure 2 final report.
CRL.M.C.No. 107 of 2015
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decisions are not applicable to the facts and circumstances of this case. It is true that the Sub Inspector of Police has filed the complaint with the caption as “Compliance Report in Crime No.809/2010 of Kundara Police Station”. Evidently, it can be seen that it is not a final report filed under Section 173(2) Cr.P.C. It is not in the form of a final report to be filed under Section 173(2) Cr.P.C. Since it is not filed in the format prescribed under Section 173(2) Cr.P.C., it can be treated as a complaint within the meaning of Section 2(d) Cr.P.C. Of course, all the necessary formalities for taking cognizance of the offence have to be complied with by the court below.
CRL.M.C.No. 107 of 2015
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challenge the taking of cognizance or the way in which the cognizance has been taken in the matter, this Crl.M.C. is dismissed.
As far as practicable, the court below shall grant exemption to the petitioner from personal appearance before the court below, and the personal appearance shall be insisted only on the dates on which his presence is actually required.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
[True copy] P.S. to Judge
3 issues framed by the court
Whether a compliance report filed by the Sub Inspector of Police constitutes a valid complaint or a Section 173(2) Cr.P.C. final report for offence under the Protection of River Banks and Regulation o
Whether the Sub Inspector of Police was authorized under SRO No.64/2007 to file a complaint under the said Act.
Whether the criminal miscellaneous case should be quashed on procedural grounds regarding the mode of complaint.
Colour shows how this judgement treated each authority
Ismayil v. State of KeralaDistinguished¶3
Ismayil v. State of Kerala [2010(3) KLT 706]
Nizam v. State of KeralaDistinguished¶3
Nizam v. State of Kerala [2014(2) KLT 467]
4 provisions across 2 enactments
Binu
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
B. Kemal Pasha
Parties & counsel
