Allowed

Sherry Joseph v. State of Kerala

Kerala HC26 Nov 2021Crl.MC/902/2016

Case brief

AI extract

What is this about?

The High Court allowed the criminal miscellaneous petition filed by accused persons challenging the taking of cognizance by the Chief Judicial Magistrate under Section 25 of the Kerala Conservation of Paddy and Wet Land Act, 2008, quashing the entire proceeding as the report relied upon did not meet the statutory requirement of being submitted by an authorized officer.

What did the court decide?

The criminal miscellaneous case is allowed and proceedings in C.C.No.13/2015 before the Chief Judicial Magistrate, Alapuzha are quashed.

Sherry Joseph Vs State of Kerala — Land Acquisition | Kerala HC (2021)

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Crl.M.C.No.902/2016

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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 ZIYAD RAHMAN A.A.

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FRIDAY, THE 26^TH DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943

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CRL.MC NO. 902 OF 2016

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AGAINST THE ORDER/JUDGMENT IN CC 13/2015 OF CHIEF JUDICIAL

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MAGISTRATE, ALAPPUZHA

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PETITIONERS/ACCUSED NO.1 AND 2:

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1 SHERRY JOSEPH, S/O.JOSEPH, CHUDUKATTIL HOUSE, PACHA, CHEKKIDIKKADU, EDATHUA.

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2 JESMIMOL, W/O.SHERRY JOSEPH, CHUDUKATTIL HOUSE, PACHACHEKKIDIKKADU, EDATHUA.

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BY ADV SRI.UNNI.K.K. (EZHUMATTOOR)

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RESPONDENTS/COMPLAINANTS:

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

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2 REVENUE DIVISIONAL OFFICER, O/O.OF REVENUE DIVISIONAL OFFICE, OPP.DISTRICT COURT, ALAPPUZHA.

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R1 AND R2 BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

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26.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.902/2016 2

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O R D E R

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Petitioners are the accused Nos.1 and 2 in C.C.No.13/2015 on the file of the Chief Judicial Magistrate Court, Alapuzha. Annexure-A4 is the report on which cognizance was taken by the learned Magistrate. Even though no specific offence is seen mentioned in Annexure-A4, it is discernible from the records that the prosecution was launched for the offences punishable under Section 23 of the Kerala Conservation of Paddy and Wet Land Act, 2008 (herein after referred to as ‘Paddy Act’). The allegation against the petitioners is that, after obtaining permission for conversion of paddy land having an extent of 4.05 Ares of their property, they have converted an extent of 9 Ares and 37 Sq.Mtrs of the land by exceeding the permission granted. This Crl.M.C is filed by the petitioners challenging the action of taking cognizance upon Annexure-A4 report submitted by the Revenue Divisional Officer, Alapuzha.

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Heard Sri.Unni K.K., learned counsel for the petitioners and Sri.Srudheer Gopalakrishnan, learned Public

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Crl.M.C.No.902/2016

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Prosecutor for the State.

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The specific case of the petitioner is that, the learned Magistrate could not have taken cognizance on Annexure-A4, because of the reason that it is not a report as contemplated under Section 25 of the Paddy land Act. Section 25 of the Paddy Land Act which reads as follows:

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“25. Cognizance of offence.- No Court below the rank of Chief Judicial Magistrate Court shall take cognizance of any offence punishable under this Act except on a report in writing of the fact constituting such offence by an officer authorized under sub-section (1) of Section 12.”

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Even though Section 25 of the Act was omitted by Act 29

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of 2018 with effect from 30.12.2017, the said provision was applicable to this case, as the cognizance was taken prior to the aforesaid amendment of the statute.

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Going by the statutory stipulation contained in Section 25 of the Act, it can be seen that the cognizance can be

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taken by a court not below the rank of Chief Judicial Magistrate only on a report in writing of the fact constituting such offence by an officer authorized under sub-Section (1) of Section 12. It

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Crl.M.C.No.902/2016 4

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is true that, the 2^nd respondent/complainant is an authorized officer under Section 12(1) of the Act. However, a perusal of Annexure-A4 report would reveal that it was not a report as contemplated under Section 25 of the Act. On the other hand, the said report was that of Additional Tahsildar, Kuttanad, addressed to 2^nd respondent herein recommending initiation of proceedings against the petitioners herein under the provisions of Paddy Land Act. In other words, Annexure-A4 is an internal communication between the Additional Tahsildar, Kuttanad and the 2^nd respondent herein. When Section 25 of the Act specifically contemplates that cognizance can be taken only on the basis of a report submitted before the Court, that can only mean that the authorized officer has to prepare a report on the basis of the information furnished to him by the other authorities subordinate to him and such report shall be presented before the Court along with description and other details which constitute the offence alleged against the petitioner. However, Annexure-A4 is not a report in the manner as mentioned above. When a statute contemplates for

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Crl.M.C.No.902/2016

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a particular procedure for initiating a proceeding, the same can be done only in the manner mentioned in the statute. The deviation from the same cannot be permitted. In this case, no report as contemplated under Section 25 of the Act was available before the learned Magistrate when cognizance of the offence was taken. Therefore, the further proceedings pursuant to Annexure-A4 is illegal a it is against the procedure prescribed in the statute.

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In such circumstances, I am of the view that, Act of taking cognizance by the learned Magistrate was not in tune with the statutory stipulations as contained in Section 25 of the Paddy Land Act and accordingly, the entire proceedings thereof are vitiated. In such circumstances, this Crl.M.C.is allowed. All proceedings in C.C.No.13/2015 before the Chief Judicial Magistrate, Alapuzha are hereby quashed.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

DG/26.11.21

Crl.M.C.No.902/2016

APPENDIX OF CRL.MC 902/2016

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PETITIONER ANNEXURE

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ANNEXURE-A1: TRUE COPY OF THE PERMISSION GIVEN BY THE 2ND RESPONDENT WITH LOCATION SKETCH.

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ANNEXURE-A2: TRUE COPY OF THE NOTICE ISSUED BY THE DISTRICT COLLECTOR.

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ANNEXURE-A3: TRUE COPY OF THE EXPLANATION PREPARED BY THE PETITIONER.

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ANNEXURE-A4: THE CERTIFIED COPY OF THE REPORTS AND OTHER DOCUMENTS SUBMITTED TO THE 2ND RESPONDENT WHICH WAS FORWARDED TO THE CJM COURT.

Sherry Joseph v. State of Kerala

Case brief

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Sherry Joseph v. State of Kerala

Case brief

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