Allahabad High Court
U.P.Pollution Control Board ... vs M/S.Rampur Disttilliary And ... on 9 August, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:52867
Court No. - 28
Case :- APPLICATION U/S 378 No. - 1297 of 2001
Applicant :- U.P.Pollution Control Board Through Its Member
Opposite Party :- M/S.Rampur Disttilliary And Chemicals Co.Rampur And Others.
Counsel for Applicant :- Kamlesh Singh,A.K. Verma
Counsel for Opposite Party :- Shusheel Kumar,Siddharth Lal Vaish,Sushil Kumar
Hon'ble Shree Prakash Singh,J.
Heard Sri A.K. Verma, learned counsel for the appellant, Sri Dinesh Kumar Pathak, learned Senior Advocate assisted by Sri Sushil Kumar, learned counsel for the respondents and perused the material placed on record.
By means of the instant appeal, the appellant has sought the following reliefs :-
1) That after summoning the entire records of the trial court in Criminal case No.85 of 1988 decided on 28.03.2001 and 19.3.2001, by Special Judicial Magistrate (Pollution), Lucknow Whose certified copy is attached herewith as Annexure I to this appeal may kindly be quashed as it relates to respondents No.2 to 9 and allow the appeal of - the appellant against the respondents 1 to 9 and punished them all with imprisionment and heavy penalty both as provided under section 44 of the Water Act 1974.
2) That the fine imposed upon the Industry respondent No. 1 may kindly be inhanced to maximum one,and maximum imprisonment of it's managing Director and others be done through whom it is represented.
3) To pass appropriate orders amount to be contempt against the respondent No. 10 for open violation and not following of Laws and principles laid down by Hon'ble Supreme Court in various decision and giving the law of the decision against the statutory land as well.
4) To pass such other order/direction or judgment or as may be deemed just and proper in the circumstances of the case in the public interest at large with heavy cost in favour of the appellant and against the respondents after allowing the appeal alongwith application for g grant of special leave for appeal U/S 378 Criminal panel Code of 1973.
The learned counsel appearing for the respondents; raised preliminary objection while submitting that the instant appeal is not maintainable on behest of the appellant. He added that in fact the present appeal has been filed under Section 378 of CrPC, which is evident from the page no. 2 of the appeal itself, whereas, the provision with respect to the appeal under section 378 is concerned, it is very clear that an appeal under section 378 can be instituted, against an order of acquittal.
Section 378 of the CrPC reads as under:-
"Appeal in case of aquittal.
1) Save as otherwise provided in Sub-Section (2) and subject to the provisions of Sub-Sections (3) and (5),
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.";
2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of Sub-Section (3), also direct the Public Prosecutor to present an appeal?
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
3) No appeal under Sub-Section (1) or Sub-Section (2) shall be entertained except with the leave of the High Court.
4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
5) No application under Sub-Section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
6) If, in any case, the application under Sub-Section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-Section (1) or under Sub-Section (2)."
Referring the aforesaid, he submits that the appeal has been filed against the order dated 19.03.2001, passed by the court of Judicial Magistrate, dealing with pollution matters and the order is quoted hereinunder :-
"??????????. 1, ?????? ?????? ???????? ???? ?????? ?????? ??????? ?????? ?? ??????? ???? 44 ?.???.?? ??????? ??????? ??? ????????? ??????? ?? ???????? ???? ?????? ???? ?????? ? ???????? ??. 2 ?? 9 ?????? 13.5.88 ?? ?? ???????? ???? ?? ???? ??? ?????? ??????? ???? ???????? ??. ? ?????? 28.3.2001 ?? ???? ?? ?"
He contended that the learned Magistrate while passing the aforesaid order, has given its finding on the basis of the version of the appellant that no revision or appeal has been instituted by the appellant against the order dated 13.05.1988. Contrary to it, the order dated 13.05.1988 has already been assailed by the appellant, while instituting the revision before the High Court at Allahabad, which was dismissed. Further, so far as the provision with respect to filing of the appeal is concerned that has also been prescribed under section 378(5) of the CrPC. He added that in fact the appeal except apart provided under section 378(1)(a)(b), can be instituted only by grant of special leave to appeal from an order of acquittal, by the High Court. He added that no such application for seeking such leave of this court has been filed along with the present appeal. Thus, submission is that the present appeal is not maintainable and is liable to be dismissed.
On the other hand, the learned counsel for the respondent while responding to the argument of the learned counsel for the appellants, submits that after the order dated 19.03.2001, an order was passed on 28.03.2001, wherein, the respondent company has admitted the offence, and as such, the accused nos. 2 to 9, though, has already been discharged, cannot be treated as discharged, because of the fact that company being a person has admitted the offence and that is represented by the accused nos. 2 to 9. He further added that the trial has concluded and in such event the instant appeal is maintainable.
Having heard the learned counsel for the parties and after perusal of the material placed on record, it transpires from the plea taken by the counsel for the respondent that the appeal under section 378 of CrPC is not maintainable against the accused nos. 2 to 9 as the appeal is not against an order of acquittal, but it is against the order of discharge, though not passed against the accused nos. 2 to 9, but that is against the accused no. 1, which is the company.
Further, this court has also considered that appeal under section 378 of Cr.P.C. can be filed only against the order of acquittal, but, the instant appeal has been filed against order of discharge, which is erroneous and against the provisions of law.
This court has also noticed the fact that though it has been stated by the appellant before the trial Court that the order dated 13.05.1988 was not challenged by the appellant and that is pending consideration but the fact is otherwise, that the same was challenged before the Hon'ble High Court at Allahabad while filing revision and the same has already been decided finally, on 9.02.1993.
In view of the aforesaid submissions and discussions, the instant appeal is not maintainable, so far as, it has been filed under Section 378 of CrPC.
Thus, the instant appeal is hereby dismissed.
Order Date :- 9.8.2023
Anurag
