IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3606 of 2009()
1. ABDUL AZEEZ, S/O.ADAM KUTTY,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. ASST.SUB INSPECTOR OF POLICE,
For Petitioner :SRI.K.ABDUL JAWAD
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/01/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
----------------------------------------------------------
Crl.M.C.NO.3606 & 3715 OF 2009
---------------------------------------------------------
Dated 6th January 2010
O R D E R
Can cognizance of an offence under
the Protection of River Banks And
Regulation of Removal of Sand Act, 2001 can
be taken on a report filed under Section
173(2) of Code of Criminal Procedure, even
if the police officer who submitted the
report is an authorised officer under that
Act. This is the question to be settled in
those petitions.
2. Petitioner in Crl.M.C.3606/2009
is the accused in C.C.141/2008 on the file
of Judicial First Class Magistrate-II,
Palakkad and petitioners in
Crl.M.C.3715/2009 are the accused in
C.C.1670/2008 on the file of Judicial First
Crmc 3606 & 3715/09
2
Class Magistrate-II, Pathanamthitta. Judicial
First Class Magistrate-II, Palakkad had taken
cognizance of the offence under Section 12
read with Section 20 of Kerala Protection
of River Banks and Regulation of Removal of
Sand Act, 2001 (hereinafter referred to as
‘the Act’) on Annexure-A final report filed
by Assistant Sub Inspector of Police, Mankara
police station on the allegation that on 1-
2-2008 at 1.30 a.m, petitioner was illegally
transporting river sand without any license
or permit and therefore, committed the
offences under Sections 12 and 20 of the Act.
C.C.1670/2008 was taken cognizance by the
learned Magistrate-II, Pathanamthitta on
Annexure-1 final report filed by Sub
Inspector of police, Konni for the offences
under Sections 20,21 and 23 of the Act on
Crmc 3606 & 3715/09
3
the allegation that on 17/5/2008 at 3.20 p.m
petitioners in Crl.M.C.3715/2009 were found
transporting river sand in tipper lorry
No.KL.03K/4893. These petitions are filed
under Section 482 of Code of Criminal
Procedure to quash the proceedings contending
that learned Magistrate could not have taken
cognizance of the offence, on a final report
submitted by the police after investigation
under Section 173(2) of Code of Criminal
Procedure in violation of the provisions of
Section 25 of the Act and therefore,
cognizance taken is bad. In addition,
petitioner in Crl.M.C.3606/09 also contended
that Assistant Sub Inspector of police who
filed the final report, which was taken
cognizance as C.C.141/2008, is not an
authorised officer as provided under the Act
Crmc 3606 & 3715/09
4
and on that ground also cognizance taken are
to be quashed.
3. Learned counsel appearing for the
petitioners and learned Public Prosecutor
were heard.
4. Section 25 of the Act provides
cognizance of the offences under the Act. The
Section provides that no court shall take
cognizance of an offence punishable under
the Act except upon a complaint in writing
made by a person authorised in his behalf
by the Government or the District Collector
or a Geologist of the department of mining
and geology. Therefore, by virtue of Section
25, no court can take cognizance of an
offence except on a complaint in writing made
by an authorised officer.
5. Though learned Single Judge
Crmc 3606 & 3715/09
5
(Ramkumar.J) in Mohanan v. S.I of Police
(2008 (1) KLT 560) held that even a report
filed by an authorised officer can be treated
as a complaint and therefore, cognizance of
the offence under the Act could be taken on a
report filed under Section 173(2) of Code of
Criminal Procedure, Division bench of this
court in Moosakoya v. State of Kerala (2008
(1) KLT 538) held that a plain reading of
the provision will show that even though by
Section 24 all offences under the Act are
made cognizable, no court can take
cognizance of the offence except upon a
written complaint made by a person
authorised in that behalf by the Government
or the District Collector or a Geologist of
the Department of Mining and Geology and a
complaint in writing by the authorised
Crmc 3606 & 3715/09
6
officer is a condition for taking
cognizance as provided under Section 25. It
was held;
"If a police officer is
authorised by the Government
he may also file a complaint on
the basis of which the court may
take cognizance. But the court
cannot take cognizance of any
offence punishable under the
Sand Act on a police report
filed under Section 173(2) of
the Cr.P.C after investigation
by police. ”
6. Apex court in Jeewan Kumar Raut
v. Central Bureau of Investigation (AIR
2009 SC 2763) while considering an identical
provision in the Transplantation of Human
Crmc 3606 & 3715/09
7
Organ Act, 1994 had also considered the
Division Bench decision in Moosakoya’s case
(supra) and approved. Section 22 of
Transplantation of Human Organs Act (TOHO
Act) provides cognizance of the offences
under that Act. Under Sub Section 1 no court
shall take cognizance of an offence under
the Act except on a complaint made by (a) an
Appropriate Authority concerned or any
officer authorised in this behalf by the
Central Government or the State Government or
as the case may be, by the Appropriate
Authority or (b) a person who has given
notice of not less than sixty days in such
manner as may be prescribed to the
Appropriate Authority concerned, of the
alleged offence and of his intention to make
a complaint to the court. Under Sub Section
Crmc 3606 & 3715/09
8
2, no court other than that of Metropolitan
Magistrate or the Judicial Magistrate of
First Class shall try any offence
punishable under the Act. Under Sub Section
3, where a complaint has been made under
clause (b) of sub section (1), the court may
on demand by such person, direct the
Appropriate Authority to make available
copies of the relevant records in its
possession to such person.
7. Their Lordships on analysing the
provisions of TOHO Act, held that it is a
special Act and it deals with subjects
mentioned therein and having regard to the
importance of the subject only, enactment of
said regulatory statute was imperative and
the TOHO Act provides for appointment of an
appropriate authority to deal with the
Crmc 3606 & 3715/09
9
matters specified in sub section (3) of
Section 13 thereof and by reason of the said
provision, Appropriate Authority has
specifically been authorised to investigate
any complaint of the breach of any of the
provisions of the Transplantation of Human
Organs Act and Central Bureau of
Investigation was constituted under the
Delhi Special Police Establishment Act, 1946
is the authority specified under the Act to
make investigation in connection with the
complaint and only the authorised authorities
could take investigation in connection with
the complaint, it was held that by virtue of
Section 22, even after completing the
investigation cognizance cannot be taken on a
final report filed under Section 173(2) of
the Code but only on a complaint. It was then
Crmc 3606 & 3715/09
10
held.
"19. Section 22 of TOHO
prohibits taking of
cognizance except on a
complaint made by an
appropriate authority or the
person who had made a
complaint earlier to it as
laid down therein.
Respondent, although, has all
the powers of an investigating
agency, it expressly has been
statutorily prohibited from
filing a police report. It
could file a complaint
petition only as an
appropriate authority so as to
comply with the requirements
contained in Section 22 of
TOHO, filing of a police
report by necessary
implication is necessarily
forbidden, the question of its
Crmc 3606 & 3715/09
11
submitting a report in terms
of sub section (2) of Section
173 of the Code did not and
could not arise. In other
words, if no police report
could be filed, sub section
(2) of Section 167 of the Code
was not attracted.
20. It is a well
settled principle of law that
if a special statute lays down
procedures, the once laid down
under the general statures
shall not be followed. In a
situation of this nature, the
respondent could carry out
investigations in exercise of
its authorisation under
Section 13(3)(iv) of TOHO.
While doing so, it could
exercise such powers which are
otherwise vested in it. But,
as it could not file a police
report but a complaint
Crmc 3606 & 3715/09
12
petition only; sub section (2)
of Section 167 of the Code
may not be applicable. The
provisions of the Code, thus
for all intent and purport,
would apply only to an extent
till conflict arises between
the provisions of the Code and
TOHO and as soon as the area
of conflict reaches, TOHO hall
prevail over the Code.
Ordinarily, thus, although in
terms of the Code, the
respondent upon completion of
investigation and upon
obtaining remand of the
accused from time to time, was
required to file a police
report, it was precluded from
doing so by reason of the
provisions contained in
Section 22 of TOHO.
To put it differently,
upon completion of the
Crmc 3606 & 3715/09
13
investigation, an authorised
officer could only file a
complaint and not a police
report, as a specific bar has
been created by the parliament.
In that view of the matter,
the police report being not a
complaint and vice-versa, it
was obligatory on the part of
the respondent to choose the
said method invoking the
jurisdiction of the Magistrate
concerned for taking
cognizance of the offence only
in the manner laid down therein
and not by any other mode. The
procedure laid down in TOHO,
thus, would permit the
respondent to file a complaint
and not a report which course
of action could have been taken
recourse to but for the special
provisions contained in Section
22 of TOHO.”
Crmc 3606 & 3715/09
14
8. Division Bench decision of this
court in Mosakoya’s case was considered by
their Lordships in paragraph 23 and quoting
paragraph 3 of the Division Bench decision
wherein Division Bench held that court
cannot take cognizance of an offence
punishable under the Act, on a police report
filed under Section 173(2) of Code of
Criminal Procedure after investigation with
the police, their Lordships held.
“23. We may notice that a Division
bench of the High court of Kerala
in Moosakoya v. State of Kerala
(2008 Crl.LJ 2388) held as under:
“3.A plaint reading
of the above provision
will show that even
though by Section 24 all
offences under the ActCrmc 3606 & 3715/09
15are made cognizable no
court can take cognizance
of the offence except
upon a written complaint
made by a person
authorised in this behalf
by the Government of the
District Collector or a
Geologist of the
Department of Mining and
Geology. A complaint in
writing by the authorised
officer etc, is the only
condition for taking
cognizance as provided in
Section 25. If a police
officer is authorised by
the Government, he may
also file a complaint on
the basis of which the
Court may take
cognizance. But the Court
cannot take cognizance of
any offence punishableCrmc 3606 & 3715/09
16under the said Act on a
police report filed under
Section 173(2) of the
Cr.P.C after
investigation by police.”
We with respect, agree with the
said observation.”
9. In the light of the declaration
of law by the Apex court in Jeewan Kumar’s
case (supra) approving the Division Bench
decision of this court in Moosakoya’s case
and in view of mandatory provisions of
Section 25 of the Act, it can only be held
that Judicial First Class Magistrate
Magistrate is not empowered to take
cognizance of the offence on a final report
filed under Section 173(2) of the Code of
Criminal Procedure and Magistrate can take
cognizance only on a complaint in writing
Crmc 3606 & 3715/09
17
made by the officer authorised as provided
under Section 25. Even if the Sub Inspector
who filed the final report is an authorised
officer under the Act, only if he files a
complaint, the Magistrate can take cognizance
and not on a final report submitted under
Section 173(2) of Code of Criminal Procedure.
As the learned Magistrate has taken
cognizance in both cases on a final report
submitted under Section 173(2) of Code of
Criminal Procedure, the cognizance taken can
only be quashed.
10. There is force in the submission
of the learned counsel appearing for the
petitioner in Crl.M.C.3606/2009 that
Assistant Sub Inspector of police, though in
the last portion of the report was shown
himself as Sub Inspector, but as is clear
Crmc 3606 & 3715/09
18
from the first page, he is only the Assistant
Sub Inspector, is not an authorised officer
under the Act. Therefore, he is not even
competent to file a complaint. Therefore, on
that ground also the cognizance taken in that
case is bad.
Petitions are allowed. C.C.141/2008
on the file of Judicial First Class
Magistrate-II, Palakkad and C.C.1670/2008 on
the file of Judicial First Class
Magistrate-II, Pathanamthitta are quashed.
It is made clear that quashing of the
cognizance taken will not be a bar to the
authorised officer to file complaints in
accordance with law.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.
Crmc 3606 & 3715/09
19