In this petition filed under Sec.482 Cr.P.C. the petitioners, four in number, who are the accused in

S.T. 1550 of 2007 on the file of the J.F.C.M. II, Pathanamthitta arising out of Crime No.268 of 2007 of Koyippuram Police Station for offences punishable under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, (“the Act” for short) seek to quash the entire proceedings pending before the aforesaid Court.

THE PROSECUTION CASE

2. Thecase of the prosecution can be summarized as follows:-

On 18-8-2007 at about 10 p.m. near the market bathing ghat at Maramon in Thottapuzhasseri Village, the Circle Inspector of Police, Kozhencherry and his police party detected first accused and driven by the 2nd accused and accused Nos.3 and 4 loading the said lorry with sand from pampa river in contravention of the prohibition against mining of sand during the monsoon period. The accused have thereby committed offences punishable under Sections 20 and 27 of the Kerala Protection of River Banks and Regulation of Sand Act.

THE COGNIZANCE

3. The learned Magistrate took cognizance of the offences and registered the case as S.T.1550 of 2007 and issued process to the accused. It is at that stage that the accused have approached this court for quashing the entire proceedings.

4. I heard Advocate Sri. Sethunath, the learned counsel appearing for the petitioners/accused and Advocate Sri. K.S. Sivakumar, the learned Public Prosecutor in charge of the case.

THE STAND OF THE ACCUSED

5. Adv. Sri. V. Sethunath, the learned counsel appearing for the petitioners/accused made the following submissions before me in support of this petition:-

Even though the offences punishable under Sections 20 and 21 of the Act are made cognizable by virtue of Sec.24 of the Act, Section 25 of the Act reads as follows:-

“No Court shall take cognizance of any offence punishable under the Act except upon a complaint in writing made by a person authorized in this behalf by the Government or District Collector or a Geologist of the Department of Mining and Geology.”

Subsequently, as per notification published in the Kerala Gazette dated 18-1-2007 the Government of Kerala have empowered the Revenue Divisional Officers, Tahasildars, Deputy Tahsildars, Superintendent of Police, Deputy Superintendent of Police, and Station House Officers to exercise to make a complaint in writing in respect of any offence punishable under the Act. Thus, even if the Sub Inspector of Police, Koyippuram who is the Station House Officer is an authorised officer empowered under Sec.25 of the Act, such authorized officer can only file a complaint in writing before the Magistrate. But what has been filed before the J.F.C.M.II, Pathanamthitta is Annexure I final report under Sec.173 Cr.P.C, which is nothing but a “police report” as defined under Section 2

(r) Cr.P.C. The word “complaint” has been defined under Sec.2 (d) Cr.P.C. which reads as follows:-

“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed and offence, but does not include a police report.” that some person whether known or unknown, has committed and offence, but does not include a police report.”

Since the above definition specifically excludes a police report under Sec.173 Cr.P.C. the Magistrate could not have taken cognizance of the offences on Annexure I police report. The Station House Officer ought to have filed a complaint in writing instead of a police report under Sec.173 (2) Cr.P.C. Hence, the cognizance taken is bad. In Bholanath Amritlal Purohit v. State of Gujrat – (AIR 1971 SC 194), cognizance of an offence punishable under Sec.55 of the Indian Post Office Act, 1898 was taken on a police report filed under Sec.173 Cr.P.C. Under Sec.72 of the said Act no court could take cognizance of such offence except upon a complaint made by order of or under au