ORDER
M. Sasidharan Nambiar, J.
1. 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 authorized 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. No. 141/2008 on the file of Judicial First Class Magistrate-II, Palakkad and petitioners in Crl. M.C. No. 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 licence 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-I final report filed by Sub Inspector of Police, Konni for the offences under Sections 20, 21 and 23 of the Acton 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. No. 3606/2009 also contended that Assistant Sub Inspector of Police filed the final report, which was taken cognizance as C.C. No. 141/2008, is not an authorized 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 on 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 authorized officer.
5. Though learned single Judge (Ramkumar, J.) in Mohm v. S.I. of Police 2008(1) KLT 560 held that even a report filed by an authorized 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 eventhough by Section 24 all offences under the Act are made cognizable, no court can take cognizance of the offence except upon written complaint made by a person authorized 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 Jeevan Kumar Raut v. Central Bureau of Investigation : 2009 (3) KLT SN 43 (C. No. 45) SC : AIR 2009 SC 2763 while considering an identical revision in the Transplantation of Human Organs Act, 1994 had also considered the Division Bench decision in Moosakoya's case (supra) and approved. Section 22 of Transplantation of Human Organs Act (TOHO Act) provides cognizance of the offences under that Act, Under Sub-section (1) no Court shall take cognizance of an offence under the Act except on a complaint made by (a) an Appropriate Authority concerned or any officer authorised in this behalf by the Central Government or the State Government or as the case may be, by the Appropriate Authority or (b) a person who has given notice of not less than sixty days in such manner as may be prescribed to the Appropriate Authority concerned, of the alleged offence and of his intention to make a complaint to the Court. Under Sub-section (2), no Court other than that of Metropolitan Magistrate or the Judicial Magistrate of First Class shall try any offence punishable under the Act. Under Sub-section (3), where a complaint has been made under Clause (b) of Sub-section (1), the Court may on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.
7. Their Lordships on analyzing the provisions of TOHO Act, held that it is a special Act and it deals with subjects mentioned therein and having regard to the importance of the subject only, enactment of said regulatory statute was imperative and the TOHO Act provides for appointment of an appropriate authority to deal with the matters specified in Sub-section (3) of Section 13 thereof and by reason of the said provision, Appropriate Authority has specifically been authorised to investigate any complaint of the breach of any of the provisions of the Transplantation of Human Organs Act and Central Bureau of Investigation was constituted under the Delhi Special Police Establishment Act, 1946 is the authority specified under the Act to make in vestigation in connection with the complaint and only the authorised authorities could take investigation in connection with the complaint, it was held that by virtue of Section 22, even after completing the investigation cognizance cannot be taken on a final report filed under Section 173(2) of the Code but only on a complaint. It was then held:
19. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its, submitting a report in terms of Sub-section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, Sub-section (2) of Section 167 of the Code was not attracted.
20. It is well settled principle of law that if a special statute lays down procedures, the on's laid down under the general statutes shall not be followed. In a situation of this nature, the respondent could carry out investigations in exercise of its authorisation under Section 13(3)(iv) of TOHO. While doing so, it could exercise such powers which are otherwise vested in it. But, as it could not file a police report but a complaint petition only; Sub-section (2) of Section 167 of the Code may not be applicable. The provisions of the Code, thus for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO.
To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondent to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO.
8. Division Bench decision of this Court in Moosakoya 's case was considered by their Lordship in para. 23 and quoting paragraph 3 of the Division Bench decision wherein Division Bench held that Court cannot take cognizance of an offence punishable under the Act, on police report filed under Section 173(2) of Code of Criminal Procedure after investigation with the police, their Lordships held:
23. We may notice that Division Bench of the High Court of Kerala in Moosakoya v. State of Kerala : 2008 (1) KLT 538 : 2008 Crl. L.J. 2388 held as under:
3. A plaint reading of the above 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 authorized in this behalf by the Government of the District Collector or a Geologist of the Department of Mining and Geology. A complaint in writing by the authorized officer etc., is the only condition for taking cognizance as provided in Section 25. If a police officer is authorized 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 said Act on police report filed under Section 173(2) of the Cr.P.C. after investigation by police.We with respect, agree with the said observation.
9. In the light of the declaration of law by the Apex Court in Jeewan Kumar's case (supra) approving the Division Bench decision of this Court in Moosakoya's case and in view of mandatory provisions of Section 25 of the Act, it can only be held that Judicial First Class Magistrate is not empowered to take cognizance of the offence on a final report filed under Section 173(2) of the Code of Criminal Procedure and Magistrate can take cognizance only on a complaint in writing made by the officer authorized as provided under Section 25. Even if the Sub Inspector who filed the final report is an authorized officer under the Act, only if he files a complaint, the Magistrate can take cognizance and not on a final report submitted under Section 173(2) of code of Criminal Procedure. As the learned Magistrate has taken cognizance in both cases on a final report submitted under Section 173(2) of Code of Criminal Procedure, the cognizance taken can only be quashed.
10. There is force in the submission of the learned Counsel appearing for the petitioner in Crl. M.C. No. 3606/2009 that Assistant Sub Inspector of Police, though in the last portion of the report was shown himself as Sub Inspector, but as is clear from the first page, he is only the Assistant Sub Inspector, is not an authorized officer under the Act. Therefore, he is not even competent to file a complaint. Therefore, on that ground also the cognizance taken in that case is bad.
Petitions are allowed. C.C. No. 141/2008 on the file of Judicial First Class Magistrate-II, Palakkad and C.C. No. 1670/2008 on the file of Judicial First Class Magistrate-II, Pathanamthitta are quashed. It is made clear that quashing of the cognizance taken will not be a bar to the authorized officer to file complaints in accordance with law.