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 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 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 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 (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 authorized 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