Dismissed

Binu v. the State of Kerala

Kerala HC17 Feb 2016Crl.MC/112/2015

Case brief

AI extract

What is this about?

In this criminal miscellaneous case, the Kerala High Court dismissed the challenge to prosecution proceedings under the Protection of River Banks Act. The Court distinguished cited precedents holding that the police document was a complaint within Section 2(d) Cr.P.C. due to its non-compliance with Section 173(2) format, allowing cognizance.

What did the court decide?

The criminal miscellaneous petition was dismissed. The court below was directed to grant exemption from personal appearance to the petitioner unless his presence is required on specific dates.

Binu Vs the State of Kerala — Public Procurement and Tenders | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937

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Crl.MC.No. 112 of 2015

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CC 887/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM. CRIME NO. 809/2010 OF KUNDARA POLICE STATION, KOLLAM.

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PETITIONER/FIRST ACCUSED:

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BINU, S/O.SUBAKKI THOMAS, AGED 31 YEARS, PAYAS BHAVAN, CHERUMOODU, PERINADU, KOLLAM DISTRICT.

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BY ADV. SRI.V.PHILIP MATHEW

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RESPONDENTS/STATE:

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1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA, ERNAKULAM.

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2. SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM DISTRICT - 691 501.

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BY SENIOR PUBLIC PROSECUTOR SMT.SAREENA GEORGE.P

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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Crl.MC.No. 112 of 2015

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE 1. COPY OF FIR NO.809/2010 IN CRIME NO.809/2010.

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ANNEXURE 2. COPY OF FINAL REPORT/COMPLIANCE REPORT IN CRIME NO.809/2010.

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RESPONDENT(S)' ANNEXURES:

NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

B. KEMAL PASHA, J.

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................................................................ CRL.M.C. No. 112 of 2015 ............................................................... Dated this the 17^th day of February, 2016

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O R D E R

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The petitioner is the first accused in C.C.No.887/2010 pending before the Judicial First Class Magistrate's Court-I, Kollam, which has arisen from Crime No.809/2010 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 the petitioner and the other accused have violated the provisions of the Act and has committed the offences punishable under Sections 20 and 21 of the said Act, as

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CRL.M.C.No. 112 of 2015

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-: 2 :-

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they were found transporting river sand by a country boat on 15.05.2010 at 7 p.m.

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The learned counsel for the petitioner has argued 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.

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The learned counsel for the petitioner has relied on the decision of this Court in Ismayil v. State of Kerala [2010(3) KLT 706] wherein it was held that in a case alleging an offence under the Act, a final report filed under Section 173(2) Cr.P.C. is not maintainable as a complaint, and the prosecution proceedings based on it are not legally sustainable.

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The learned counsel for the petitioner has relied on another decision in Nizam v. State of Kerala [ 2014(2) KLT 467 ] wherein it was held that the final report filed by the police cannot be treated as a complaint. Both the aforesaid

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CRL.M.C.No. 112 of 2015

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-: 3 :-

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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.

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As per the notification in SRO No.64/2007, the Sub Inspector of Police at the relevant period was authorised to file a complaint under the said Act. Therefore, the learned Public Prosecutor has argued that the proceedings cannot be quashed on the ground that the said proceedings are not initiated on the basis of a complaint.

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Without prejudice to the right of the petitioner to

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CRL.M.C.No. 112 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.

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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.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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[True copy] P.S. to Judge

Binu v. the State of Kerala

Case brief

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Binu v. the State of Kerala

Case brief

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