ISMAYIL Vs. STATE OF KERALA

JUDGEMENT

(1.) The common question which arises in all these cases on a reference made by a learned Single Judge of this Court is 'whether a police report submitted under Section 173(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) can be treated as a complaint for the purpose of taking cognizance under Section 25 of the Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as the 'Act')

(2.) The learned Single Judge of this Court (incidentally the very same Judge who passed the order of reference has in Mohanan v. S.I. of Police, 2008 1 KerLT 560 which was decided on 22.1.2008 proceeded to take the view that the word 'complaint' has not been defined under the Act and the police report satisfies the essential requisites of a complaint and since an officer in charge of a police station is one of the authorised officers under the Act evert if the report is submitted under Section 173(2) of the Code it can be treated as a complaint. Learned Single Judge took the view in the said decision that there is no illegality in the Court taking cognizance on the basis of the said report. A Division Bench of this Court in Moosakoya v. State of Kerala, 2008 1 KerLT 538 had proceeded to consider among various issues the question as to whether the Court can under the Act fake cognizance of any offence on the basis of a police report filed under Section 173(2)of the Code. The said decision was rendered on 5.12.2007. Therein the Court inter alia held as follows:

(3.) A plain reading of the above 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 this behalf by the Government or 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 punishable under the Sand Act on a police report filed under Section 173(2) of the Cr.P.C. after investigation by police....