Allahabad High Court
M/S Albert David Ltd. Thru. Its Plant ... vs State Of U.P. Thru. Prin. Secy. Home ... on 2 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
High Court of Judicature at Allahabad Sitting at Lucknow
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Neutral Citation No. - 2024:AHC-LKO:9837
A.F.R.
Court No. - 27
Case :- APPLICATION U/S 482 No. - 869 of 2024
Applicant :- M/S Albert David Ltd. Thru. Its Plant Head Namely Hemant Tukaram Nazare
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Govt. U.P. Lucknow And Another
Counsel for Applicant :- Salil Kumar Srivastava,Rahul Srivastava
Counsel for Opposite Party :- G.A.,Ashok Kumar Verma
Hon'ble Subhash Vidyarthi J.
1. Heard Dr. Salil Kumar Srivastava, the learned counsel for applicant, Sri Gyanendra Singh, learned A.G.A. for the State and Sri Ashok Kumar Verma, the learned counsel for opposite party no.2.
2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has challenged the validity of the summoning order dated 25.08.2022 passed by the Special Judicial Magistrate, Pollution/CBI, Lucknow in Complaint no.1008 of 2020, whereby the applicant-firm and its 7 partners have been summoned to face trial under Section 37 of the Air Act.
3. On 10.02.2020, the opposite party no. 2 - the U. P. Pollution Control Board (which will hereinafter be referred to as 'the Board') filed a complaint under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981 (which will hereinafter be referred to as 'the Air Act'), through an Assistant Environmental Engineer of the Board, against the applicant firm and its 7 partners, stating that by means of an order dated 15.02.2018 passed by the Chief Environmental Officer, Circle-1, the applicant - M/s Albert David Ltd was granted consent under Section 21 of the Air Act for 06TPH PNG fired boiler, which was valid for the period from 01.01.2018 to 31.12.2019. However, during an inspection made on 06.12.2019, it was found that the applicant had installed a new 8TPH PNG fired boiler and was operating the same without obtaining consent from the Pollution Control Board in violation of Section 21 of the Air Act, which was punishable under Section 37 of the Air Act.
4. On 25.08.2022, the learned Special Judicial Magistrate, Pollution/CBI, Lucknow passed the impugned order summoning the accused persons to face trial under Section 37 of the Air Act.
5. Dr. Salil Kumar Srivastava, the learned Counsel for the applicant has challenged the validity of the summoning order on numerous grounds. The first submission of the learned Counsel for the applicant is that the complaint has been filed by an Assistant Environmental Engineer of U.P. Pollution Control Board, who is not authorized to file the complaint as per the provisions contained in Section 43 of the Air Act. In reply to this submission, the learned counsel for the opposite party no.2 has submitted that Section 15 of the Air Act provides that 'a State Board may, by general or special order, delegate to the Chairman or the member-secretary or any other officer of the Board subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions under this Act as it may deem necessary.'
6. In rebuttal, Dr Salil Kumar Srivastava, learned counsel for the applicant has submitted that the power conferred under Section 15 of the Air Act is a general power whereas the power to institute prosecution has specifically been provided under Section 43 of the Air Act. Section 43 (1) (a) of the Air Act provides that No Court shall take cognizance of any offence under this Act except on a complaint made by a Board or any officer authorised in this behalf by it. Section 15 (1) of the Air Act provides that "A State Board may, by general or special order, delegate to the Chairman or the member-secretary or any other officer of the Board subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions under this Act as it may deem necessary."
7. Dr. Srivastava has contended that as the resolution dated 23.12.1981 passed by the Board does not contain the name of Sri. Ritesh Tiwari, the Board has not delegated the powers to him and the powers have been delegated to Sri. Ritesh Tiwari by the Member Secretary of the Board, who had no authority to delegate the powers. In support of this contention, he has relied upon the judgment of Hon'ble Supreme Court in the case of P. Pramila and others versus State of Karnataka and another reported in (2015) 17 SCC 651, wherein the Hon'ble Supreme Court held that "there cannot be any doubt, that when the authorities decided to initiate proceedings under the provisions of the Air Act, the complaint could have been made either by the Board or by an officer authorised by the Board."
8. In P. Pramila (Supra), vide Notification/Resolution dated 29-3-1989, the Karnataka State Pollution Control Board had delegated certain powers to the Chairman of the Board as per which a complaint under Section 43(1) of the Air Act could have been filed either by its Chairman. The Chairman passed an order dated 4-4-2006 authorising the Regional Officer, Karwar to initiate criminal action under Section 37 of the Air Act by filing criminal case. In this factual background, the Hon'ble Supreme Court held that: -
"The Notification/Resolution dated 29-3-1989 indicates that the officer authorised was the Chairman of the Board. The Board could delegate the above power to the Chairman of the Board because Section 43(1) of the Air Act authorised the Board to do so. In that view of the matter, either the Board or the Chairman of the Board could have filed the complaints in terms of the mandate contained in Section 43(1) of the Air Act. The power to file the complaint could not be exercised by any other authority/officer. Under the principle of "delegatus non potest delegare", the delegatee (the Chairman of the Board) could not have further delegated the authority vested in him, except by a clear mandate of law. Section 43 of the Air Act vested the authority to file complaints with the Board. Section 43 aforementioned also authorised the Board to delegate the above authority to any "officer authorised in this behalf by it". The "officer authorised in this behalf" was not authorised by the provisions of Section 43 of the Air Act, or by any other provision thereof, to further delegate the authority to file complaints. The Chairman of the Board, therefore, had no authority to delegate the power to file complaints to any other authority for taking cognizance of offences under the Air Act."
9. There can be no dispute against the proposition of law that a delegate cannot further delegate the authority vested in him. However, in the present case, the Board itself had passed a resolution dated 23.12.1981 authorizing the Law Officer, the Assistant Scientific Officers and the Assistant Environmental Engineers of the Board to file cases in Courts and it was further resolved that the case will be filed by that officer who is nominated by the Member Secretary. In furtherance of this general order of delegation passed by the Board, the Member Secretary of the Board has nominated Sri. Ritesh Tiwari, Assistant Environmental Engineer to file the complaint. Therefore, the power has been delegated to the Assistant Environmental Engineer by the Board only and not by the Member Secretary or the Chairman of the Board or any delegate of the Board. Therefore, the well settled principle of law reiterated in P. Pramila (Supra) does not apply to the facts of the present case.
10. Hence, I find no force in the first submission of the learned Counsel for the applicant and I hold that the complaint has been filed by an Assistant Environmental Engineer of the Board, who was authorized by the Board's resolution dated 23.12.1981.
11. The learned counsel for the applicant has next submitted that the opposite party nos. 2 to 8 in the complaint, who are partners of the applicant firm, are residents of places falling outside the territorial limits of jurisdiction of the Special Judicial Magistrate and, therefore, it was mandatory for the Court to have held an enquiry under Section 202 (1) Cr.P.C. before issuing summons to those accused persons. In support of this contention, learned counsel for applicant has relied upon the judgment of Hon'ble Supreme Court in the case of National Bank of Oman versus Barakara Abdul Aziz and another, reported in (2013) 2 SCC 488.
12. Per contra, Sri A. K. Verma, the learned counsel for opposite party no.2 has submitted that the applicant, who has approached this Court under Section 482 Cr.P.C., is the firm M/s Albert David Ltd, which is situated at Industrial Area, Ghaziabad, which falls within the territorial jurisdiction of the Magistrate, who has passed the summoning order. None of the partners of the firm, who claim to be residents of places outside jurisdiction of the Magistrate, have approached this Court challenging legality of the order summoning them to face the trial. The applicant is undisputedly situated within the limits of territorial jurisdiction of the Magistrate concerned and therefore, there is no illegality in summoning the applicant. In absence of the persons, who claim themselves to be residents of places outside the limits of territorial jurisdiction of the Magistrate concerned, this Court cannot examine validity of the order summoning those persons.
13. A copy of the complaint has been annexed with the application, wherein the applicant has been arrayed as opposite party no.1 and its address is mentioned as B-12/13, Site-3 Meerut Road Industrial Area, Police Station Sihani Gate, Ghaziabad, through its partners. The partners of the firm, who have been impleaded as opposite party nos.2 to 8 in the complaint, are all the residents of places other than the Ghaziabad, falling outside the limits of State of U.P. but they have not joined the applicant in filing the application under Section 482 Cr.P.C.
14. In Sulochana Devi Vs. District Magistrate, 1993(1)Crimes108(Ori.), Hon'ble Mr. Justice Arijit Pasayat dealt with the question of locus standi for filing an application under Section 482 Cr.P.C. in the following manner: -
"9 . Can a person who is not a party to the proceeding invoke the jurisdiction of the Court for exercise of powers under Section 482? Who has locus standi to do so ? The concept of locus standi has undergone a sea-change. It is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory : because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold. The traditional syntax of law in regard to locus standi for a specific judicial redress, sought by an individual person, or determinate class or identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to actionability within the categories of law..."
15. What was further held by the Orissa High Court in Sulochana Devi (Supra), was quoted with approval by the Hon'ble Supreme Court in Harsh Mandar v. Amit Anilchandra Shah, (2017) 13 SCC 420: -
"41. In Sulochana Devi the petitioner who was not a party to the proceedings had invoked the powers of the High Court under Section 482 CrPC to challenge the order of issuance of proclamation under Section 82 of the Code and attachment of the property. Raising the issue of locus standi, preliminary objection was raised to the maintainability of the application at the behest of the petitioner. The Orissa High Court after considering the scope of Section 482 CrPC as well as the decisions of the Apex Court in Madhu Limaye (1977) 4 SCC 551, Simranjit Singh (1992) 4 SCC 653, and in Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305, held that:
"... Even if there are million questions of law to be deeply gone into and examined in a criminal case registered against specified accused persons, it is for him/them to raise all such questions and challenge the proceedings initiated at appropriate time before the proper forum and not for third parties either individually or under the garb of public interest litigation. Ordinarily, the aggrieved party, which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order unless such party is a minor and insane person or is suffering from any other disability which law recognises as sufficient to permit another person e.g. next friend, to move the court in his behalf."
16. The other 7 accused persons, who are partners of the applicant firm, are not suffering from any disability due to which they are unable to approach this Court and yet they have chosen not to join the applicant firm in filing the application under Section 482 challenging the validity of order summoning them. In these circumstances, the applicant firm cannot challenge the validity of the order so far as it summons the firm's partners who have not approached this Court.
17. Even otherwise, in National Bank of Oman (Supra) relied upon by the learned Counsel for the applicant, the High Court had taken the view that prima facie the bare allegation of cheating did not make out a case against the accused for issuance of process under Sections 418 or 420 IPC. Further, it was held that the Magistrate was obliged to postpone the process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding in a case where the accused is residing beyond the area in which the Magistrate exercises his jurisdiction. The Hon'ble Supreme Court upheld the decision of the High Court. However, the Hon'ble Supreme Court has observed in National Bank of Oman (Supra) that: -
"10. Section 202 CrPC was amended by the Code of Criminal Procedure (Amendment) Act, 2005 and the following words were inserted:
"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,"
The notes on clauses for the abovementioned amendment read as follows:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."
18. The object of holding an enquiry under Section 202 is to ensure that innocent persons, who are residents of far off places, are not harassed by unscrupulous persons by filing of false complaints. The complainant in the present case is U. P. Pollution Control Board, and not any unscrupulous individual. The nature of complaint is that upon inspection of the premises of the applicant firm, it was found that the applicant had installed a new 08 TPH PNG fired boiler and was operating the same without obtaining consent from the Pollution Control Board in violation of Section 21 of the Air Act, which was punishable under Section 37 of the Air Act. The firm is admittedly situated within the territorial limits of jurisdiction of the Magistrate. There is no allegation of personal nature against any of the partners of the firm who are residents of areas falling beyond the territorial limits of jurisdiction of the Magistrate and only this much is revealed from the records that the applicant's partners are responsible for running of its plant. The limited enquiry which the Magistrate can hold at this stage is meant to ascertain whether any case for summoning the accused persons is made out. The enquiry report submitted by a public servant was filed with the complaint and that is sufficient to enable the Magistrate to arrive at a conclusion that a case for taking cognizance of the offence and summoning the accused persons is made out.
19. Thus I am of the considered view that the object of inserting the amendment in Section 202 Cr.P.C. for conducting an enquiry has not been defeated in the present case. The inherent powers of this Court under Section 482 Cr.P.C. are meant to be exercised to secure the ends of justice and not to create hurdles in dispensation of justice on mere technicalities which do not defeat the ends of justice. Therefore, I find myself not in agreement with the submission of the learned Counsel for the applicant that the order summoning the non-applicant accused persons is bad for want of an enquiry under Section 202 Cr.P.C.
20. The next submission made by the learned counsel for the applicant is that the complaint alleges that the applicant was operating without obtaining the requisite consent from the U. P. Pollution Control Board under Section 21 of the Air Act whereas the applicant had due permission under Section 21 of the Air Act and the allegation levelled in the complaint is false on the face of the record.
21. In reply to this submission, the learned counsel for opposite party no.2 has submitted that the applicant was granted consent under Section 21 of the Air Act by means of an order dated 15.02.2018 passed by the Chief Environmental Officer, Circle-1, which was valid for the period from 01.01.2018 to 31.12.2019, but the consent was granted only for 06 TPH PNG fired boiler. When it was found upon inspection that the applicant has installed a new 08 TPH PNG fired boiler and was operating it without obtaining consent from the Pollution Control Board, the complaint was lodged.
22. The record reveals that that the applicant was granted consent under Section 21 of the Air Act only for 06 TPH PNG fired boiler. Section provides for restriction of use of particular industrial plants, and it does not provide that after consent has been granted to an applicant to run an industry, it may install any other new plant without obtaining consent in respect thereof. The applicant had installed and was operating a new 08 TPH PNG fired boiler without obtaining consent from the Pollution Control Board. These facts, prima facie make out commission of offence under Section 21 which is punishable under Section 37 of the Air Act. Therefore, this submission of the learned Counsel for the applicant is also turned down.
23. The learned Counsel for the applicant has next submitted that the learned Magistrate has summoned the accused persons to face the trial without taking cognizance of the offences.
24. Section 190 (1) Cr.P.C. reads as follows: -
"190. Cognizance of offences by Magistrates.-- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."
25. In Fakhruddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157, the Hon'ble Supreme Court answered in the following words the question as to 'what is meant by the expression "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190 of the Code?'
"14. The expression "cognizance" is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit v. State of W.B.: (AIR 1963 SC 765)
"19. ... The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means--become aware of and when used with reference to a court or Judge, to take notice of judicially."
Approving the observations of the Calcutta High Court in Emperor v. Sourindra Mohan Chuckerbutty [ILR (1910) 37 Cal 412], the Court said that
"taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence."
(emphasis supplied)
15. Recently, this Court in Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492, speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase "taking cognizance" under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Supdt. & Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR 1950 Cal 437 which were approved by this Court in R.R. Chari v. State of U.P. AIR 1951 SC 207. The observations are:
"7. ... What is 'taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
16. From the aforenoted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.
17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
26. In Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609, the Hon'ble Supreme Court held that: -
"47....The expression "taking cognizance" has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in Chief Enforcement Officer v. Videocon International Ltd.(2008) 2 SCC 492, in the following words:
"19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a court or a Judge, it connoted 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. 'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence."
48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."
27. In the impugned order dated 25.08.2022, the Magistrate has considered the facts stated in the complaint that upon an inspection made on 06.12.2019 it was found that the applicant no. 1 company was operating a 08 TPH PNG boiler without obtaining consent under Section 21 of the Air Act, which is an offence punishable under Section 37 of the Air Act, and that the partners of the applicant are responsible for its functioning. The inspection report dated 06.12.2019, the recommendation for filing the complaint, the authorization etc. had been filed with the complaint. After perusal of the complaint and the aforesaid material produced before the Magistrate, he recorded a satisfaction that the accused persons operated the unit without obtaining consent and thus they violated the mandatory provisions of Sections 21 and 31-A of the Air Act. This satisfaction recorded by the Magistrate amounts to taking cognizance of the offences. The law requires that the Court will take cognizance of the offence, but it does not mandate that the cognizance has to be taken by using express words that the Court takes cognizance of the offence. A bare perusal of the order dated 25.08.2022 reveals that the Magistrate has taken cognizance of the allegations levelled in the complaint which constitute the aforesaid offences and this is sufficient to take cognizance of the offence. Hence I find no force in the submission made by the learned Counsel for the applicant that the Magistrate has not taken cognizance of the offences.
28. The learned Counsel for the applicant has also submitted that the Magistrate has not recorded any statements under Section 200 or 202 Cr.P.C. and the Magistrate has summoned he accused persons without holding any enquiry and that the summoning order passed without taking cognizance of the offences is bad in law.
29. Sections 200 and 202 of Cr.P.C. are being reproduced below: -
"200. Examination of complainant.-- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) ...
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202. Postponement of issue of process.-- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:"
30. In India Carat (P) Ltd. v. State of Karnataka, (1989) 2 SCC 132, the Hon'ble Supreme Court held that: -
"11. Chapter XV which contains Sections 200 to 203 deals with "Complaints to Magistrates". A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case, upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the complaint, if after considering the statements on oath (if any) of the complaint and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding.
12. Chapter XVI deals with "Commencement of Proceedings before Magistrates" and Section 204 empowers a Magistrate to issue summons or a warrant as the case may be, to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.
13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complaints and the witnesses present under Section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straightway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued."
31. The complaint has been filed by the U. P. Pollution Control Board through its Assistant Environmental Officer, who is a public servant. Section 200 Cr.P.C. itself provides that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint. Therefore, there was no need for examination of the complainant public servant in the present case.
32. Section 202 mandates an enquiry being held by the Magistrate by providing that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Sub-Section (2) of Section 202 provides that in an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath. Thus there is no mandatory requirement of recording the evidence of any witness. Depending upon the nature of the complaint, the Magistrate can hold enquiry on the basis of documentary evidence also, which has been done in the present case. Therefore, the mere non-examination of any witness under Section 202 Cr.P.C. would not vitiate the order summoning the accused persons to face the trial.
33. The learned Counsel for the applicant has also submitted that no affidavit has been filed under Sections 295 and 209 Cr.P.C. So far as the submission regarding non-compliance of Section 295 and 296 Cr.P.C. is concerned, the two provisions read as follows: -
"295. Affidavit in proof of conduct of public servants.-- When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servants, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given.
* * *
296. Evidence of formal character on affidavit.--(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.
34. Section 295 applies where any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, containing allegations against any public servants, which is not the case here and, therefore, Section 295 does not apply to the present case. Section 296 gives discretion to the Court to receive the evidence of a formal character on affidavit. It does not mandate that an affidavit is to be necessarily to be taken during an enquiry under Section 202 Cr.P.C., even where the Court is able to record a satisfaction on the basis of documentary evidence produced with the complaint.
35. The learned Counsel for the applicant has also submitted that the complaint does not make a mention of Section 31-A of the Air Act, and in absence of allegation of commission of offence under Section 31-A of the air Act in the complaint, the Magistrate has no jurisdiction to summon the accused persons for that offence.
36. Section 31-A of the Air Act provides as follows: -
"31-A. Power to give directions.--Notwithstanding anything contained in any other law, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.
Explanation.--For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct--
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) the stoppage or regulation of supply of electricity, water or any other service."
37. The 'directions' referred to in Section 31-A of the Air Act are "any directions in writing" and these are not limited to directions issued expressly stating that the same are issued under Section 31-A. The directions issued with the consent order dated 15.02.2018 which have been annexed with the copy of the complaint filed with the application under Section 482 Cr.P.C., are also directions issued under Section 31-A.
38. A bare reading of Section 190 (1) (a) Cr.P.C. indicates that a Magistrate is empowered to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. The complaint has to narrate the facts only and it need not necessarily mention the offences that are made out on the basis of those facts. Even if the complaint mentions some offence and it omits to mention some other offence, in case the Magistrate is satisfied from facts stated in the complaint that some other offence is also made out, the Magistrate can take cognizance of that offence also.
39. In Nahar Singh versus State of U. P. and others, (2022) 5 SCC 295, after discussing various precedents on the point, the Hon'ble Supreme Court has held that the Magistrate has to apply his mind while taking cognizance of an offence and if it appears from the material placed before him and any person other than those arrayed as accused also needs to be summoned, the Magistrate can certainly summon him. On the same principle, in case the Magistrate is satisfied that there is sufficient material for trial of the accused for any other offence, he has the power to summon the accused person(s) for trial of that offence also.
40. In the present case, the Magistrate is satisfied by a perusal of the complaint and the material filed with it, that the accused persons appear to have violated any direction, it can take cognizance of the offence under Section 31-A also. In such circumstances, he has not committed any illegality in taking cognizance of the offence under Section 31-A of the Air Act and in summoning the applicant and its partners for trial of the aforesaid offence.
41. Relying upon the decision of the Hon'ble Supreme Court in Devendra v. State of U.P., (2009) 7 SCC 495, the learned Counsel for the applicant has submitted that it was obligatory on the part of the learned Magistrate to apply his mind to the contents of the complaint and such application of mind on his part should have been reflected from the order.
42. There can be no dispute against the aforesaid preposition of law and this is a rudimentary principle that any judicial authority must apply his mind to the relevant facts, the relevant material placed in support of the material and the relevant provisions of law while passing any order. However, the narration made in preceding paragraphs reveals that the Magistrate has fulfilled this requirement while passing the impugned order dated 25.08.2022.
43. The complaint has been filed by the U. P. Pollution Control Board through its Assistant Environmental Officer, who is a public servant. Section 200 Cr.P.C. itself provides that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint. Therefore, there was no need for examination of the complainant public servant in the present case.
44. The learned Counsel for the applicant has also submitted that the documents produced with the complaint have to be proved by oral evidence. That stage would arrive during the trial and at the stage of taking cognizance and summoning the accused person for trial the Court has only to arrive at a prima facie satisfaction that a case for trial is made out, which satisfaction can be arrived on the basis of documentary evidence, without strict proof of the documents.
45. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi, (2009) 2 SCC 147, the Hon'ble Supreme Court held that: -
"23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.
* * *
41. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained. To put it clear, it is the function of the trial Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Criminal Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal."
46. The learned Counsel for the applicant lastly submitted that the trial Court has erred in summoning all the partners of the applicant firm without ascertaining as to which of them were actually responsible for the offence. In support of this contention, he placed reliance on a judgment of the Hon'ble Supreme Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89, which arose from a reference made by a two-Judge Bench of this Court for determination of the following questions: -
"(a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfil the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company.
(b) Whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary.
(c) Even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the managing directors or joint managing director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against."
47. The following answers were given to the aforesaid questions: -
"(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.
(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.
(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141.
48. S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla was a case arising out of the Negotiable Instruments Act. Section 141 of the Negotiable Instruments Act and Section 40 of the Air Act contain pari materia provisions. Section 40 of the Air Act reads as follows: -
"40. Offences by companies.--(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purposes of this section,--
(a) "company" means any body corporate, and includes a firm or other association of individuals; and
(b) "director" in relation to a firm, means a partner in the firm.
49. It has specifically been stated in the complaint that the partners of the applicant are in-charge of the as well as responsible for the conduct of the day to day business of the applicant and they are personally liable for the violation of the provisions of law. Therefore, the averment mandatory as per the answer to question (a) in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (Supra) is there in the present case. Whether each of the partners of the applicant is actually liable to be convicted or sentenced or not, will be decided upon conclusion of the trial and the averments made in the complaint are sufficient for their trial.
50. In view the aforesaid discussion, I find no force in any of the submissions made by the learned Counsel for the applicant. There appears to be no illegality in the impugned order dated 25.08.2022 passed by the Special Judicial Magistrate, Pollution/CBI, Lucknow, taking cognizance of the offence and summoning the accused persons to face trial under Section 37 of the Ari Act.
51. The application filed under Section 482 Cr.P.C. lacks merit and the same is accordingly dismissed.
Order Date - 02.02.2024
Renu/-
