Research › Search › Judgment

Kerala High Court · body

2014 DIGILAW 119 (KER)

Nizam v. State of Kerala

2014-02-10

P.D.RAJAN

body2014
Judgment 1. This petition is preferred U/s.482 of Code of Criminal Procedure praying that Annexure-II charge in Crime No.874/09 of the Sasthamcotta Police Station pending before Judicial First Class Magistrate, Sasthamcotta for offence punishable U/S.188 IPC and U/Ss.20 and 21 of Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001, may be quashed by invoking inherent jurisdiction. The allegation is that on 4.12.2009 at 8.45 a.m. the accused was found transporting river sand in a vehicle bearing Registration No.KL 2W 106 east of Karalimukku junction in west Kallada Village by the Sub Inspector of Police, Sasthamcotta. Accused were arrested and registered Annexure-1 FIR. The ground alleged by the petitioner for questioning Annexure-II charge sheet is noncompliance of the necessary requirements in the Kerala Protection of river Banks and Regulation of Removal of Sand Act 2001, therefore, continuance of the trial is a mere abuse of process of Court. 2. The inherent powers of the High Court contemplated u/s 482 Cr.P.C. can be exercised to make such orders necessary to “give effect to any order” under this code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned above. It is true that it cannot be used against doubtful cases of injustice. Apex Court in Talab Haji Hussain v. Madhukar Purushotham Mondker ( AIR 1958 SC 376 ) held that the inherent power contemplated under Section 482 Cr.P.C has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the test specifically laid down in the section itself. 3. The averment is that the Sub Inspector of Police, Sasthamcotta registered a case U/S.25 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act against the petitioner in the year 2009. It is true that Kerala River Bank Protection and Regulation of Removal of Sand Act 2001 was amended in 2013 and before amendment, Section 25 of the Act reads as follows: “25. It is true that Kerala River Bank Protection and Regulation of Removal of Sand Act 2001 was amended in 2013 and before amendment, Section 25 of the Act 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.” The provision of the State enactment u/s.25 provides for taking cognizance only 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. When an officer referred to under the above Section is satisfied that an offence under this Act has been committed, he shall file a complaint before the Magistrate Court having jurisdiction. After amendment of the Act, Section 25 of the Act reads as follows: (Substituted by Act 15 of 2013 (w.e.f.25/11/2012). “25. Cognizance of offences.- (1) The Court having jurisdiction may, upon a written complaint by an officer referred to in Section 23 or of a Geologist of the Mining and Geology Department or upon a police report under sub-section (2) of Section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), constituting an offence under this Act, take cognizance of such offence. (2) Where an officer referred to under sub-section (1) is satisfied that an offence under this Act has been committed, he shall, as soon as may be, file a complaint relating to that, before the Magistrate Court having jurisdiction.” 4. The term “complaint” has been defined in Section 2(d) of the Code of Criminal Procedure as follows: “any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, the some person, whether known or unknown, has committed an offence, but does not include a police report.' Explanation portion of S.2(d) says that: “A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.” 5. According to S.24 all offences under the Act are made cognizable. According to S.24 all offences under the Act are made cognizable. Anyhow, taking cognizance has not been defined in the Code, and the word 'cognizance' has no special importance in Criminal Law or Procedure, but it refers to a court or judge, it means 'to take notice judicially'. Taking cognizance does not involve any formal action of any kind, but when a magistrate applies his mind to the commission of an offence for the purpose of proceeding to take subsequent steps (under Section 200 or Section 202, or Section 204) towards inquiry and trial. Apex Court in Darsan Singh v. State of Maharashtra [ AIR 1971 SC 2372 (2374)] held that taking cognizance includes intention of initiating a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is a basis for initiating a judicial proceeding. 6. A Division Bench of this Court in Ismayil v. State of Kerala [ 2010(3) KLT 706 ] held as follows: (para 23 & 24) “23. It is true that under S.2(d) of the Code there is no particular form prescribed. A complaint can be even oral. No doubt, it must satisfy the essential ingredients in S.2(d) of the Code, namely, it must relate to commission of an offence by known or unknown person and there must be request to take action. It may be true that in substance the ingredients of a complaint could be culled out from the report under S.173 (2). In fact, at this juncture we must notice the submission of Sri. K.K. Dheerendra Krishnan, the learned counsel appearing on behalf of the petitioner in Crl.M.C. 2622/2010 that the Code contemplates different procedures in respect of cases taken cognizance of on the basis of complaint and police report. He would point out that S.202 of the Code is not applicable to cognizance based on police report. Of course, the question which we have to consider is whether a police report can be interpreted and understood as a complaint. 24. In all these cases we cannot overlook the fact that a Division Bench of this Court in Moosakoya's case (supra) has considered the question whether cognizance could be taken on the basis of a report filed by a plice officer under the Code. 24. In all these cases we cannot overlook the fact that a Division Bench of this Court in Moosakoya's case (supra) has considered the question whether cognizance could be taken on the basis of a report filed by a plice officer under the Code. As already noticed the Division Bench has expounded its view as we have referred to and held that cognizance cannot be taken on the basis of a police report. The matter came to be considered by the Apex Court though in the context of another enactment. The Court, on the basis of its reasoning which it had already adopted proceeded to approve the judgment of this Court. Thus, it could be said that the Apex Court approved the principle which was laid down. We cannot overlook the contention of Sri. M.R. Rajesh that when the Apex Court pronounced the law on a point it may not be open to this Court to overlook its command under Art.141 of the Constitution on the footing that if another point had been urged before it, it would have come to a different conclusion. It is no doubt true that the specific question as such as to whether a police report under S.173 (2) could be interpreted to be a complaint for the reason that the contents of the report would suffice to answer the description of complaint under S.2(d) of the Code was not raised before the Division Bench in Moosakoya's case (supra) or in the decision of the Apex Court. But, this does not mean that when the Apex Court proceeded to hold that a complaint cannot be treated as a police report and police report cannot be treated as a complaint and also proceeded to approve the judgment of the Division Bench of this Court, that we will be free to hold that when the statute provides for taking cognizance only on the basis of a complaint by authorised officers complaint can be interpreted as meaning to take within its meaning also a police report. The statute unambiguously postulates a specific method for taking cognizance. Generally, any person can set the criminal law into motion. But, there are exceptions which are provided to the said principle in the Code and also in various special statutes. Instances of the exceptions are Ss.198, 199 of Code of Criminal Procedure. The statute unambiguously postulates a specific method for taking cognizance. Generally, any person can set the criminal law into motion. But, there are exceptions which are provided to the said principle in the Code and also in various special statutes. Instances of the exceptions are Ss.198, 199 of Code of Criminal Procedure. S.25 of the Act is another instance of a statutory prohibition against cognizance of the offence being taken in any manner other than what is provided therein. Therefore, the Legislature intended that cognizance can be taken only in the manner which is contemplated under S.25 of the Act. This means that Legislature intended the provisions to be mandatory and intended further that what is provided therein is to be followed is unaware of the provisions of S.2(d) or S.2(r) of the Code. That is to say, the Legislature was very much aware that the word 'complaint' as defined in S.2(d) does not include a police report. The Courts would ascribe knowledge of the existing law to the legislature when a law arises for interpretation. This being the position though it may be possible for the prosecution to point to the contents of the police report and canvass may also answer the description of a complaint, we are of the view that in the nature of the statute and the decision of the Apex Court approving the decision of the Division Bench in Moosaoya's case and also the fact that the police reports in all these cases do not give any indication whatsoever that is intended to be filed as a complaint or even that it is filed by the police officer as authorised under the Act cognizance taken in all these cases would be hit by the prohibition contained in S.25 of the Act namely that cognizance can be taken only on the strength of a complaint. In all these cases, except one i.e. Crl.M.C.1948 of 2010, the only question which has been raised and which is referred was the legality of the Court taking cognizance on the strength of a police report under S.173(2). In all these cases, except one i.e. Crl.M.C.1948 of 2010, the only question which has been raised and which is referred was the legality of the Court taking cognizance on the strength of a police report under S.173(2). It is the common case of both the learned counsel for the petitioners and also the learned Public Prosecutor that no further question would arise after the matter is answered by holding that a complaint would not take in a police report under S.173 (2) of the Code and the matter can be finally decided under S.7 of the Kerala High Court Act. In the light of our decision we must proceed to hold that the decision in Mohanan v. S.I. of Police ( 2008(1) KLT 560 ) cannot be treated as good law and we approve the decision of the learned Single Judge in Abdul Azeez v. State of Kerala [ 2010 (1) KLT 394 ].” 7. No doubt, Government of Kerala has issued Gazette notification on 18.1.2007 empowering officers u/s.25 to exercise the power to file a complaint in writing in respect of any offence punishable under the Act. The notification reads as follows: “Appointment of Authorised Officers 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.” Therefore a final report filed u/s.173(2) of Cr.P.C is not a complaint u/s.25 of the Act. Now the Section is amended and substituted by Act 15 of 2013 with effect from 25.11.2012 published in Kerala Gazette Ext.No.693 dated 7.3.2013. This legal proposition has been explained by this Court in Mohanan and others v. S.I. Of Police, Koipuram [2008(1) KHC 507, Ismayil v State of Kreala [2010 (3) KHC 677 and P.M. Suresh v. State of Kerala [ 2012 (3) KLT 524 ]. Therefore, the Section is mandatory and the officers shall file a complaint in writing in respect of an offence punishable under the Act. The prosecution in respect of the above said offence is absolutely restricted by filing a complaint by the authorised officers. Therefore, the Section is mandatory and the officers shall file a complaint in writing in respect of an offence punishable under the Act. The prosecution in respect of the above said offence is absolutely restricted by filing a complaint by the authorised officers. The object of imposing such limitation is to save the accused from vexatious prosecution by vindicative feeling on the part of non-empowered officers. Therefore, the final report filed by the police cannot be treated as complaint as mentioned in the Act. A complaint in writing as stated u/s.25 is a 'sine qua non'. 8. Another aspect is that a case u/s. 188 IPC was registered against the petitioner by the S.I. of police, Sasthamcotta without considering the prohibition U/s.195 Cr.P.C. The offence under Section 188 IPC is disobedience to an order duly promulgated by public servant whoever knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act or to take certain order with certain property in his possession or management disobey such direction shall if such obstruction causes or tends to cause obstruction, annoyance or injury to any person lawfully employed shall commit such offence. A close reading of S.195 to 199 Cr.P.C. shows that there are some limitations on the unfettered powers of Magistrates to take cognizance of offences u/s.190 Cr.P.C. The general rule is that any person having knowledge of the commission of an offence, may set the law in motion by filing complaint. While considering the limitations imposed u/s.195 Cr.P.C., the Magistrate must examine the facts of the complaint before him and decide whether his power u/s.190 has been taken away by any of the provisions of S.195-199. 9. Prosecution for contempt of lawful authority of public servants or offence against public justice and for offences relating to documents given in evidence are mentioned u/s.195 of the Code of Criminal Procedure 1973. 9. Prosecution for contempt of lawful authority of public servants or offence against public justice and for offences relating to documents given in evidence are mentioned u/s.195 of the Code of Criminal Procedure 1973. S.195 1(a) reads as follows: “195(1) No Court shall take cognizance- (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.” A close analysis of the above Section 195(1) (a) impart with three types of offences such as (1) contempt of lawful authority of public servants (2) offences against public justice and (3) offences relating to documents given in evidence. While dealing with offence u/s 172 to 188 IPC it is mandatory that a private prosecution in the above offence is barred, the concerned public servant mentioned therein initiate proceedings and file complaint with regard to those offences. The purpose of introducing above limitation is to save the accused from baseless prosecution by private persons. However, the statutory requirement for taking cognizance of the offence by a Magistrate shall be only upon a complaint in writing by the public servant concerned or of some other public servant to whom he is administratively subordinate. 10. In Devakiamma v. State of Kerala [ 1981 KLT 475 ], it is held that “It is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under S 195 Cr.P.C. and if the offence was under S.186 IPC, a complaint in writing was necessary. In the absence of a complaint as contemplated under S.195(1), although an offence under S.186 IPC is disclosed from the records, prosecution against the petitioners cannot be continued, as there is a specific prohibition to take cognizance of the offence punishable under S.186 IPC., except upon a complaint in writing under S.195 (1) (a) Cr.P.C.” Apex Court in ML Sethi v. R.P. Kapur [ AIR 1967 SC 528 held that “S.195, is, in fact, a limitation on the unfettered power of a magistrate to take cognizance u/s.190.” 11. Therefore, evidently the powers conferred in the above Section, I have no doubt that by a written complaint specified under Section 195(1) Cr.P.C. filed by the public servant concerned or of some other public servant to whom he is administratively subordinate alone the Court can take cognizance. Apex Court in A.R. Antulay v. Ramdas Sriniwas Nayak [ AIR 1984 SC 718 ] held as follows: “While S.190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Ss.195 to 199 of the Cr.P.C. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contraindicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e., an act or omission made punishable by any law for the time being in force is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To held that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision.” 12. There is blanket prohibition on the Court from taking cognizance of any offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act except upon a complaint in writing made by a person authorised u/s.25 of the Act by the State Government. There is blanket prohibition on the Court from taking cognizance of any offence under the Kerala Protection of River Banks and Regulation of Removal of Sand Act except upon a complaint in writing made by a person authorised u/s.25 of the Act by the State Government. There is also a mandatory direction u/s195(1) Cr.P.C. to file a written complaint before a Court by the public servant or of some other public servant whom he is administratively subordinate to take cognizance of any offence. In that circumstances the registration of the case and investigation by the S.I. of police would be a futile exercise. 13. It is clear that failure of exercise of inherent powers in favour of the petitioner would result in the failure of justice. Hence the F.I.R. and final report in crime No.874/2009 registered by the Sasthamcotta Police is quashed by invoking inherent powers u/s.482 Cr.P.C. In view of this order, further proceedings taken on the basis of the case also stand quashed. Crl.M.C. is allowed as above. Hence, I am of the view that this is a fit case to invoke the inherent jurisdiction U/S.482 Cr.P.C. Accordingly, Annexure-II charge sheet is hereby quashed. The validation of the Act was given by including validation and temporary provisions (13) under the Amendment Ordinance. It refers that notwithstanding the cesser of operation of the Kerala Protection of River Bank and Regulation of Removal of Sand(Amendment) Ordinance 2011 (hereinafter referred to as the said Ordinance). As per Section 13(a), everything done or deemed to have been done and every action taken or deemed to have been taken from the 14th day of June, 2010 to the 13th day of July, 2011 under the Principal Act as amended by the said Ordinance shall be deemed to be valid. In 13(b), it refers that the prosecution proceedings and the confiscation proceedings in respect of the properties sezied during the said period as per the provisions of the Principal Act as amended by the said Ordinance, so far as they are not inconsistent with the provisions of the Principal Act as amended by this Act, may be continued. In 13(b), it refers that the prosecution proceedings and the confiscation proceedings in respect of the properties sezied during the said period as per the provisions of the Principal Act as amended by the said Ordinance, so far as they are not inconsistent with the provisions of the Principal Act as amended by this Act, may be continued. Proviso also says that no persons accused of an offence under the principal Act as amended by the said Ordinance, during the period from the 13th day of July, 2011 to the date of commencement of the Kerala Protection of River Banks and Regulation of Removal of Sand (Amendment) Ordinance, 2012 shall be liable to be convicted. The alleged offence in this case was took place on 4.12.2009 and such seizure of the police officer was not protected in the new amendment. The above act came into force only on 25.11.2012. Therefore, there is some relevancy in the contention advanced by the petitioner. Therefore, it can be treated as a seizure before commencement of the new Act and it will come within the purview of the decision reported in Ismail's case (supra).