IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1492 of 2009()
1. JAFAR, S/O SAIDHU MUHAMMED,AGED 33 YEARS
... Petitioner
Vs
1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR
... Respondent
For Petitioner :SRI.P.M.ZIRAJ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/05/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.1492 OF 2009
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Dated 21st May 2009
O R D E R
Petitioner is accused in Crime No.117/2002
of Eloor Police Station. Case against petitioner is
that he committed offence under Section 188 of
Indian Penal Code and 17(4) read with section 22 of
Kerala Protection of River Banks Regulation of Sand
Mining Act, 2001. Judicial First Class Magistrate,
North Paravur took cognizance of the offence on a
complaint filed by Sub Inspector of Police, Eloor on
18/11/2002. This petition is filed to quash the FIR
as well as Annexure-II final report for the reason
that on 18/11/2002, when the offence was taken
cognizance the Sub Inspector has no authority to file
a complaint under Section 25 and only as per gazette
notification G.O(Ms) No.11/07/RD dated 10/1/2007
published in Kerala Gazette dated 18/1/2007, Station
House officers were given power to file a complaint
under Section 25 of the Kerala Protection of River
Banks Regulation of Sand Mining Act and therefore
Annexure-I FIR and Annexure-II charge sheet are to be
CRMC 1492/09
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quashed. Reliance was placed on the decision in Rijo
v. State of Kerala and another (2008 (1) KLT 664). It
was also argued that offence under Section 188 cannot
be taken cognizance unless sanction was given by the
court as provided under Section 195(1) and as no
sanction was obtained, case for the offence under
Section 188 of Indian Penal Code is also liable to be
quashed. Learned counsel vehemently submitted that as
sanction is necessary under Section 195(1) of Code of
Criminal Procedure and no sanction was obtained from
the court, cognizance of the offence under Section
188 of Indian Penal Code could not have been taken.
Learned Public Prosecutor submitted that in view of
the decision of this court in Rijo’s case
submission of the petitioner is tenable.
2. In view of the decision of this court
in Rijo’s case the petition can only be allowed. The
cognizance of the offence was taken on 18/11/2002. But
Sub Inspector was authorised to file complaint under
Section 25 by notification only w.e.f. 18/1/2007.
Hence learned Magistrate cannot legally take
cognizance of the offence on 18/11/2002. It was bad.
So also as no sanction was obtained under Section
195(1) of Code of Criminal Procedure, cognizance of
the offence under Section 188 of Indian Penal Code
CRMC 1492/09
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also could not have been taken by the Magistrate in
2002. Hence the petition is allowed. Annexure-I FIR
and Annexure-II charge sheet were quashed as the Sub
Inspector was not authorised to file a complaint at
that time and the Magistrate could not have taken
cognizance of the complaint.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.