Kerala High Court
Mohanan vs The Sub Inspector Of Police on 22 January, 2008
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 26 of 2008()
1. MOHANAN, AGED 49 YEARS, S/O NARAYANAN,
... Petitioner
2. RAJEEV KURUP, AGED 26 YEARS,
3. ANEESH, AGED 28 YEARS,
4. VINESH, AGED 20 YEARS,
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.V.SETHUNATH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/01/2008
O R D E R
"CR"
V.RAMKUMAR, J.
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CRL.M.C. NO. 26 OF 2008
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Dated, 22nd day of January 2008
O R D E R
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. The case of the prosecution can be summarised 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 an Eicher Mini Lorry bearing Reg. No. KL 27-1438 owned by the CRL.M.C. NO. 26 OF 2008 -:2:- 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:- CRL.M.C. NO. 26 OF 2008 -:3:-
"No Court shall take cognizance of any offence punishable under the Act except upon a complaint in writing made by a person authorised 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 authorised 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".
CRL.M.C. NO. 26 OF 2008 -:4:-
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 authority from the Director General or a Postmaster General. Interpreting the above provisions it was held that the police report eventually filed in the case as a culmination of the complaint lodged before the police by the appropriate postal authority could not be said to be a complaint made by order of or under authority from the Director General or a Postmaster General. In Surajmani Srimali v. State of Orissa - 1980 Crl.L.J. 363, a learned Single Judge of the Orissa High Court held that a charge sheet filed by the police for a cognizable offence under the Orissa (Schedule Area) Money Lenders CRL.M.C. NO. 26 OF 2008 -:5:- Regulation, 1967 could not be treated as a complaint under Sec. 23 of the said Regulation whereunder no cognizance could be taken of the offence punishable under the Regulation except on a complaint in writing made by the Inspector. In K. Ramakrishnan v. Station House Officer, Hosdurg- 1986 Crl.L.J. 392 a learned Single Judge of the Kerala High Court held that cognizance taken of an offence punishable under Sec. 211 I.P.C. on a police report instead of a complaint by the court as provided under Sec. 195 (1)(b) (i) Cr.P.C. was bad. In State of Bihar v. Chandra Bhushan Sing and Others - AIR 2001 SC 429 it was held that a police report under Sec. 173 Cr.P.C. in respect of a non cognizable offence under the Railways Property (Unlawful Possession) Act, 1966 could not be treated as a complaint for the purpose of taking cognizance under the said Act. Hence, the cognizance taken by J.F.C.M. II, Pathanamthitta on the police report filed by the Sub Inspector of Police , Koyippuram is clearly illegal and is liable to be quashed.
JUDICIAL EVALUATION
6. I am afraid that I cannot agree with the above submissions made on behalf of the accused . The offences alleged against the petitioners are those punishable under CRL.M.C. NO. 26 OF 2008 -:6:- Sections 20 and 21 of the Act. Those sections read as follows:
"20. Penalty for contravention of this Act :-
Whoever contravenes any of the provisions of this Act or Rules made thereunder shall, on conviction be punished with imprisonment for a term of which may extend to two years or with fine which may extend to twenty-five thousand rupees or with both and in case of continuing contravention with an additional fine which may extend to one thousand rupees for every day during which such contravention continues".
21. Abetment of offences:- Whoever abets any offence punishable by or under this Act or attempts to commit any such offence shall be punished with the penalty provided by this Act for committing such offence.
Section 24 of the Act which makes the offences under the Act cognizable reads as follows:
24. Offences unde this Act to be cognizable -
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), all offences under this Act shall be cognizable. Section 25 of the Act is the provision regarding cognizance of the offences under the Act. The said Section reads as follows:-
"25. Cognizance of offences: No court shall take cognizance of any offence punishable under this Act, except upon a complaint in writing 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".
Thus, a court can take cognizance of an offence punishable under the Act only on a complaint in writing made by a person CRL.M.C. NO. 26 OF 2008 -:7:- authorised by the government or any of the authorities mentioned in the Section. In exercise of the said power the Governemnt of Kerala has issued a Notification as G.O. (Ms) No.11/07/RD dated 10-1-2007 published in the Kerala Gazette dated 18-1-2007 as S.R.O. 64 of 2007 authorising certain officials to file a complaint in writing under Sec. 25 of the Act. The said notification reads as follows:
GOVERNMENT OF KERALA REVENUE (P)DEPARTMENT NOTIFICATION G.O.(Ms)No.11/2007/RD. Dated Thiruvananthapuram, 10th January, 2007.
S.R.O.No. 64/2007 - In exercise of the powers conferred by Section 25 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (18 of 2001), the Government of Kerala hereby authorise the Revenue Divisional Officers, Tahsildars, Deputy Tahsildars, Superintendents of Police, the Deputy Superintendents of Police and Station House Officers to exercise the power to make a complaint in writing in respect of any offence punishable under the said Act.
By order of the Governor, Dr. Nivedita P.Haran Principal Secretary to Government
7. Now the question for consideration is as to whether CRL.M.C. NO. 26 OF 2008 -:8:- the report dated 16-09-2007 filed by the Station House Officer, Koyippuram police station styled as a final report under Sec. 173 Cr.P.C. alleging that the petitioners committed offences punishable under Sections 20 and 21 of the Act, is a complaint filed under Section 25 of the Act and if not could it be treated as such a complaint. The word "complaint" has not been defined under the Act, but has been defined under Sec. 2(d) Cr.P.C. as extracted in paragraph 5 above and it excludes a police report. The expression "police report"has been defined under Sec. 2 (r ) Cr.P.C. as follows:
"Police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173;"
Thus, police report is a report forwarded by a police officer to a Magistrate under Sec. 173 (2) Cr.P.C. Here, the Sub Inspector of Police, Koyippuram, who filed the final report on 16-09-2007, i.e. after the notification published on 18-1-2007 was doing so not in his capacity as the police officer but in his capacity as the authorised officer under Sec. 25 of the Act. Hence, it is not a police report under Sec. 173 (2) Cr.P.C. forwarded by a police officer. If so, it cannot be treated as a "police report" as contemplated under Sec. 2(r) Cr.P.C. Consequently, such a CRL.M.C. NO. 26 OF 2008 -:9:- report is not excluded from the definition of complaint as contained in Sec. 2(d) of the Act. It is not the label or nomenclature of the report which matters. What is to be examined is as to whether the said report satisfies the definition of a complaint falling under Sec. 2 (d) Cr.P.C. The report filed by the Station House Officer, Koyippuram contains an allegation in writing given to a Magistrate with a view to his taking action under the Code and stating that the petitioners herein have committed the aforementioned offences which are made cognizable by Sec. 24 of the Act. It, therefore, satisfies the definition of a complaint and it does not amount to a police report since it is filed by an authorised officer.
8. I am not able to find any contraindication or binding precedent in the rulings cited at the bar by the learned counsel for the petitioners. In Bholanath's case (supra) there was no complaint before the Magistrate by order of or under authority from any of the officials enumerated under Section 72 of the Indian Post Officer Act, 1898 and what was before the Magistrate was only a final report by the police who were not one of the enumerated authority under Sec. 72 of the Post Office Act. Hence, that decision is not an authorities for the CRL.M.C. NO. 26 OF 2008 -:10:- proposition canvassed by the learned counsel for the petitioner. In Surajmani's Case (supra), no doubt, an almost identical question arose before the Orissa High court. But then, going strictly by the lable of the police report and without properly imbibing the principles of law laid down in Bholanath's Case adverted to therein, a learned Judge of the Orissa High Court came to the conclusion that the cognizance taken on a police report without there being a complaint was bad. In Ramakrishnan's Case (supra) the offence involved was one punishable under Sec. 211 I.P.C. which is a non-cognizable offence. When, to start with, the offence is a non-cognizable offence, the police cannot conduct an investigation without the permission of the Magistrate under Sec. 155 (2) Cr.P.C. Hence, the investigation conducted by the police without such permission and the cognizance taken by the Magistrate on the police report under Sec. 173 (2) Cr.P.C. were held to be bad. This case is also clearly distinguishable . Same is the position with regard to Chandra Bhushan Singh's case (supra). There also the offence was a non-cognizable offence and a final report filed by police under Sec. 173 Cr.P.C. instead of a complaint was held to be bad. But in the case on hand the CRL.M.C. NO. 26 OF 2008 -:11:- offences are made cognizable by the provisions of the Act itself. Merely because the report filed by the police has the label of a charge sheet filed under Sec. 173 (2) Cr.P.C. it does not cease to be a complaint the essential requisites of which are present in the report. Since it has been filed by an officer authorised under Sec. 25 of the Act it cannot be said to be a final report filed by a police officer answering the definition of a "police report" under Sec. 2(r) Cr.P.C.
9. In the decision reported in State of Bihar v. Chandra Bhushan Singh - AIR 2001 S.C. 429 an enquiry report submitted under Sec. 8 of the Railway Protection Officers Act was held to be a complaint. Similarly in the decision reported in State of Kerala v. Sreedharan - 1964 KLT 309 a report filed by the Prohibition Officer was held to be a complaint. As long as the Act does not prescribe any form for the complaint to be filed under the Act, it is sufficient that the report filed by an officer authorised under the Act satisfies the definition of a complaint. All that the law requires is that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. See in this connection the decision in CRL.M.C. NO. 26 OF 2008 -:12:- Bhimappa Bassappa Bhu Sannavar v. Lazman Shivarayappa Samagouda and others - A.I.R. 1970 SC 1153.
10. The matter can be examined from another angle as well. The definition of various expressions under Sec. 2 Cr.P.C. is are with a rider "unless the context otherwise requires". So, the meaning of the word "complaint" in Sec. 25 of the Act can only be understood in the context in which it is used under the Act.
I am, therefore, not inclined to accept the contentions raised by the petitioner. The cognizance in the case has been validly taken on the final report which satisfies the definition of a complaint. This Crl.M.C. is accordingly dismissed.
V.Ramkumar, Judge.
ani CRL.M.C. NO. 26 OF 2008 -:13:-