1. Accused in C.C.No.100/2012 on the file of Judicial First Class Magistrate Court - II, Kottarakkara has filed this petition to quash the proceedings under Section 482 of Code of Criminal Procedure.

2. It is alleged in the petition that petitioner has been made as an accused in C.C.No.100/2012 on the file of the Judicial First Class Magistrate Court - II, Kottarakkara. He was arrayed as a sole accused in Crime No.1069/2011 of Pooyappally police station in Kollam District alleging offence under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter called 'the Act'). The allegation was that, on 07.12.2011, while the first respondent and his party was doing patrol duty and when they reached near Oyoor Junction, got information that petitioner was illegally excavating sand from Aduthala Kadavu adjacent to the Brick Killen belongs to the petitioner. They reached the spot and found somebody swam across the river leaving the articles and on enquiry, it was revealed that it was the petitioner who escaped from the spot. So, they suo moto registered Annexure AI Crime against the petitioner and thereafter filed Annexure A2 final report, on the basis of which, the case was taken on file as C.C.No.100/2012. Taking cognizance under Sections 20 and 21 of the Act on the basis of police report is against Section 25 of the Act, as the court can take cognizance of the offence under the Act only on the basis of a complaint filed by the persons mentioned therein and so, the taking cognizance of the case itself is bad. The petitioner has no other remedy except to approach this court seeking the following relief:

“To quash Anneuxre-A1 and A2 FIR and Final Report in Crime No.1069/2011 of Pooyappally Police Station in Kollam District pending as C.C.No:100/2012 on the file of the Judicial First Class Magistrate Court-II, Kottarakkara as against the Petitioner.”

3. Heard the Counsel for the petitioner and the learned Public Prosecutor.

4. The Counsel for the petitioner Smt.Preetha P.S. submitted that Annexure A2 is a police report filed under Section 173(2) of Code of Criminal Procedure and as such, taking cognizance of the case on the basis of that report is bad in law. The learned Counsel has relied on the decisions reported in Sumesh v. State of Kerala [2012 (3) KLT 524] and Ismayil v. State of Kerala [2010 (3) KLT 706] and Nizam v. State of Kerala [2014 (2) KHC 354] in support of her case.

5. The learned Public Prosecutor Shri.Rajesh Vijayan has submitted that, in this case, what is filed is a complaint and the ingredients of the complaint has been made out. Merely because in the prayer portion, it was mentioned as charge and certain inadmissible documents were produced will not take away the document filed from the character of the complaint as contended by the Counsel for the petitioner.

6. It is an admitted fact that the first respondent had registered Annexure A1 Crime No.1069/2011 of Pooyappally police station alleging offence under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 against the petitioner and thereafter, filed Annexure A2 complaint, on the basis of which, the case was taken on file as C.C.No.100/2012 on the file of the Judicial First Class Magistrate Court - II, Kottarakkara. It is true that in the decisions reported in Sumesh v. State of Kerala [2012 (3) KLT 524] and Nizam v. State of Kerala [2014 (2) KHC 354] relying on the decision reported in Ismayil v. State of Kerala [2010 (3) KLT 706], this court has observed that, court cannot take cognizance of the case on the basis of a final report filed under Section 173(2) of Code of Criminal Procedure. There is no dispute regarding the proposition laid down by the learned Single Judges, as in those cases, after investigation, final report under Section 173(2) of Code of Criminal Procedure was filed and it was on the basis of the final report filed, that cognizan