Allahabad High Court
M/S U.P. Pollution Control Board vs Spl. Judicial Magistrate And Others on 26 November, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 346 of 1992
RESERVED
M/S U.P. Pollution Control Board
..Appellant(s)
Versus
Special Judicial Magistrate and others
..Respondent(s)
Counsel for Appellant(s)
:
Kamlesh Singh,
Counsel for Respondent(s)
:
S.H. Ibrahim, M.s. Khan, Neeraj Sahu
Reserved on 12.11.2025
Delivered on 26.11.2025
Court No. - 16
HON'BLE BRIJ RAJ SINGH, J.
1. Heard the arguments of Sri A.K. Verma, learned counsel for the appellant, Sri S.H. Ibrahim, learned counsel for the private-respondents.
2. Instant criminal appeal has been filed by the complainant/U.P. Pollution Control Board, Lucknow (in short Board) against the judgment and order dated 21.05.1992 passed by Special Judicial Magistrate/Pollution Control, Uttar Pradesh, Lucknow (in short trial Court) in Case No. 53 of 1988 (U.P. Pollution Control Board, Lucknow Vs. M/s Unnao Tannery and Others), under Section 44 of Water (Prevention and Control of Pollution) Act, 1974 (in short Act of 1974), whereby the trial Court has acquitted the accused-private-respondents and dismissed the case of the complainant.
3. The complaints case, in brief, as per brief notes submitted by learned counsel for the appellant and impugned judgment and order, is that the complaint by the Board was filed on 05.12.1983 before the trial Court alleging violation of Sections 25 and 26 of the Act of 1977 as M/s Unnao Tannery, Unnao had not obtained the consent to operate under the aforesaid provisions as such the offence had been committed, as provided under Section 44 of the Act of 1977 and M/s Unnao Tannery, Unnao as well as the partners of the industry were the accused persons. The aforesaid complaint had been filed on the basis of inspection conducted on 24.11.1998 by Scientific Officer, Shri G.N. Garg in presence of representative of the industry Shri Kabir Ahmad, who refused to accept notice of inspection. Under Section 244 Cr.PC, PW1-Sri VP Singh and PW2-Shri G.N. Garg were examined and the complaint and other relevant documents including the inspection report, maps etc. were filed before the trial Court. Thereafter, the accused persons were summoned under Section 44 of the Act of 1977. The statements of the accused-respondents were recorded under Section 313 Cr.P.C. who denied the complainants case and claimed to present defence. The trial Court, after examining the statements of the witnesses and relevant material on record, did not find the accused-respondents guilty and exonerated them for the offense under Section 44 of the Act of 1974, vide impugned judgment and order.
4. Aggrieved with the impugned judgment and order of acquittal, the appellant/Board has filed the instant case.
5. The appeal was filed along with applications under Section 378(4) Cr.P.C. by the Board, this Court vide order dated 17.08.1992 granted leave to file special appeals to the Board.
6. The appeal was admitted on the same date i.e. 17.08.1992.
7. Vide order dated 04.11.2009, this Court summoned the lower court record for the purpose of disposal of appeals.
8. The case was taken up on 07.05.2012 and the Court recorded that lower court record had been weeded out and had not been reconstructed, and thereafter, the report was called from District Judge, Lucknow within one month regarding the reconstruction of the record of Case No. 53 of 1988 (Uttar Pradesh Pollution Control Board, Lucknow Vs. M/s Unnao Tannery and others).
9. Again, the order dated 03.07.2012 was passed by the Court regarding the reconstruction of the file of Case No. 53 of 1988 (U.P. Pollution Control Board Vs. M/s Unnao Tannery and others) decided on 21.5.2009 by Special Judicial Magistrate (Pollution), Lucknow.
10. On 15.03.2013, this Court passed the following order :-
In compliance of this Court's order dated 03.07.2012, there is no report regarding re-construction of file of Case No. 53 of 1988 by District Judge concerned.
Let a report be called from District Judge concerned immediately with explanation within 15 days.
List after one month.
11. Thereafter, the matter was taken up on 09.07.2013 and a direction was issued to District Judge, Lucknow to submit specific report regarding reconstruction of the documents/record and enquiry. Report be also submitted as to how much time it will take for reconstruction of the documents or if it is not possible to reconstruct the documents, reasons there for be also submitted within a month.
12. On 04.09.2013, this Court passed the following order :-
List revised.
None is present on behalf of the appellant to press this appeal.
In this case lower court record has been lost and a report has been received from District Judge concerned stating therein that reconstruction of the record is not possible. It has also been stated that factory owners have already sold their factory and are not traceable and in the said premises some houses are being constructed, therefore, no information regarding factory owners is available which has rendered the reconstruction impossible.
In view of this, counsel for both the parties are directed to furnish the documents, if any, they have in their possession.
List after 15 days.
13. The relevant part of the letter No.2502/SrAO/प्रा0जाँच सं0 1/12/पुनर्गठन Lucknow dated August 22, 2013 sent by Kamal Kishore Sharma, Sessions Judge, Lucknow is extracted herein-under:-
In this way, it is respectfully submitted that neither reconstruction of the lost record is possible, nor presence of any accused is possible. Hence, in view of the above, my this report may kindly be placed before Hon'ble Court for necessary action and suitable guideline, if any.
14. The aforesaid proceedings indicate that lower court record has been lost and a report has been received from District Judge concerned stating therein that reconstruction of the record is not possible. It has also been stated that factory owners have already sold their factory and are not traceable and in the said premises some houses are being constructed, therefore, no information regarding factory owners is available which has rendered the reconstruction impossible.
15. After going through the aforesaid order dated 04.09.2013, this Court is not left with any option for reconstruction of the record and the Court has to proceed in the case on the basis of available records i.e. memo of appeal and paper-book.
16. Honble Supreme Court in the case of Jitendra Kumar Rode v. Union of India, (2024) 11 SCC 559 has considered the questions whether, in the absence of the records of the court of trial, the appellate court could have upheld the conviction and enhanced the quantum of fine? and whether, given the language employed under Section 385 of the Criminal Procedure Code, 1973, the present situation constitutes a violation of the accused's fundamental rights under Article 21 of the Constitution of India?
17. In the aforesaid case of Jitendra Kumar Rode (Supra), order of conviction and sentence was passed on 04.12.1999 by the trial Court under Prevention of Corruption Act, 1988 against which appeal was preferred before the High Court. Honble Supreme Court has considered the case of appellant- Jitendra Kumar Rode, and recorded the finding that the non-availability of trial court records before the High Court, and upholding the conviction, despite the absence thereof, infringes the right to life and liberty of the accused enshrined under Article 21 of the Constitution of India.
18. Honble Supreme Court has further gone to the extent that despite efforts, documents such as the witness statements, statements under Section 313CrPC are neither available nor have been able to be reconstructed. Therefore, upholding conviction in the absence of such documents cannot be said to be in consonance with due process of law and fairness.
19. In conclusion, it has been held by Honble Supreme Court that protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure.
20. Honble Supreme Court has observed as under :-
35. In light of the abovementioned discussion, the accused, in appeal, has a right to have the record perused by the appellate court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is doubtful and that no one can believe the appeal would have been filed without perusing the record, as observed by the High Court is not correct. The job of the court of appeal is not to depend on the lower court's judgment to uphold the conviction but, based on the record available before it duly called from the trial court and the arguments advanced before it, to come to a conclusion thereon.
36. In the facts at hand, the alleged offence in question was committed on 21-3-1995, and the judgment of the trial court was delivered on 7-12-1999. More than 28 years have passed since the commission of the offence. As already indicated, the relevant trial court record has not been able to be reconstructed, despite the efforts of the courts below. Hence, in our considered view, as discussed above, ordering a retrial is not in the interest of justice and will not serve any fruitful purpose. The time elapsed must be taken into consideration by the Court, and we may stress on that, only after taking due note of and taking steps to abide by the warning issued by this Court in Abhai Raj Singh [State of U.P. v. Abhai Raj Singh, (2004) 4 SCC 6 : 2004 SCC (Cri) 901] , as was correctly done in Sita Ram [Sita Ram v. State of U.P., 1980 SCC OnLine All 531 : 1981 Cri LJ 65] .
37. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the court of appeal. That is the mandate of Section 385CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straitjacket formula, we hold that non-compliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find it to be so in the instant case.
21. In the present case, despite mammoth exercise undertaken by this Court, neither the record has been found nor it could have been reconstructed due to unavoidable circumstances, as stated in the order dated 04.09.2013, quoted above.
22. In the present appeal, it is to be noted that the trial Court has acquitted the respondent nos.3 to 7 and the instant appeal has been filed by the Board in the year 1992. The trial Court has recorded categorical finding that the Board, being complainant, could not prove the case beyond reasonable doubt, therefore, the order of acquittal was passed. The appeal is pending before this Court for the last 33 years which is against judgment and order of acquittal and in absence of any record, it is not possible for this Court to go through the record and to take any adverse opinion against the trial Court judgment and order, which is an order of acquittal.
23. It is also well settled that against an acquittal after a long lapse of time, the appellant-complainant has to prove his case beyond reasonable doubt so that acquittal may be turned into conviction for which cogent finding is required based on material available on record. In the present case, record is already lost and reconstruction of record is not possible, therefore, in the case of acquittal, this Court cannot take contrary view than that taken by the trial Court, the appeal is accordingly, dismissed for the aforesaid reasons record.
24. Let a copy of this order be communicated to the trial Court.
(Brij Raj Singh,J.)
November 26, 2025
Mohit Singh/-
