2025:KER:28384 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947 CRL.MC NO. 1963 OF 2025 CRIME NO.305/2022 OF MANKADA POLICE STATION, Malappuram IN CC NO.1218 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA PETITIONER/1SST ACCUSED: MOHAMMED SHAREEF AGED 62 YEARS S/O MUHAMMED, CHERMA KUNIATH HOUSE, MANKADA, MALAPPURAM, KERALA, PIN - 679324 BY ADV VINOD KUMAR.C RESPONDENTS/STATE/DEFACTO COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN - 682031 SRI. M.C. ASHI, PP. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 2025:KER:28384 Crl.M.C.No.1963 of 2025 2 ORDER Dated this the 27th day of March, 2025 The petitioner is the 1st accused in C.C No.1218 of 2022 pending before the Judicial First Class Magistrate Court-II, Perinthalmanna. The case originated from a complaint filed by the Geologist alleging commission of offences punishable under Sections 4(1A) r/w Section 21(1) of the Mines and Mineral (Development and Regulation) Act, 1957 by the petitioner and another. 2. As per the prosecution allegation, mining of laterite stones was conducted in the petitioner’s property without license. 3. Learned Counsel for the petitioner contends that his client is the owner of the property and had entered into an agreement with the 2nd accused on the specific condition that mining will be conducted in the 2025:KER:28384 Crl.M.C.No.1963 of 2025 3 property only after obtaining requisite license. It is the contention of the learned Counsel that even if the 2nd accused has conducted mining in the property without license, the petitioner cannot be penalized. It is submitted that except stating that the petitioner is the owner of the property, the prosecution has not raised any other allegation against him. 4. Learned Public Prosecutor submitted that, having permitted the 2nd accused to conduct mining, the petitioner cannot feign innocence. 5. A decision on the contentions now raised would require this Court to appreciate the evidence. Such course of action is not to be adopted while exercising the power under Section 528 of the BNSS. The proper remedy for the petitioner at this stage is to move for discharge, since the trial court, which has the 2025:KER:28384 Crl.M.C.No.1963 of 2025 4 advantage of sifting through the materials produced by the prosecution, can reach the correct conclusion. The Crl.M.C is accordingly closed, without prejudice to the petitioner's right to move for discharge and with a direction to the court below to consider the discharge petition, if filed, without insisting on the petitioner’s personal presence. Sd/- V.G.ARUN JUDGE SSK/27/03 2025:KER:28384 Crl.M.C.No.1963 of 2025 5 APPENDIX OF CRL.MC 1963/2025 PETITIONER ANNEXURES Annexure 1 CERTIFIED COPY OF COMPLAINT DT 27.10.2022 IN CC 1218/2022 FILED BEFORE JFCM 11 PERINTHALMANNA Annexure 2 TRUE COPY OF THE CONSENT LETTER DT 28.01.2018 GIVEN BY PETITIONER TO MOHAMMED UNAISE, WHO IS THE SECOND ACCUSED IN CRIME Annexure 3 TRUE COPY OF THE INTERIM ORDER DT 16.12.2024 IN WP C 37382/2024 RESPONDENTS EXHIBITS : NIL TRUE COPY P.A. TO JUDGE