Jharkhand High Court

Harsh Vardhan Bajaj vs The State Of Jharkhand on 5 August, 2022

                                       1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr.M.P. No. 871 of 2021

     Harsh Vardhan Bajaj                             ...... Petitioner
                              Versus

1.The State of Jharkhand
2. Dilip Kumar, Regional Officer, Jharkhand State Pollution Control Board,
Ranchi
                                        ...... Opposite Parties
                         ---------

CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                     ---------
For the Petitioner  : Mr. Pandey Neeraj Rai, Advocate
For the State        : Mr. Ashish Kumar, A.C. to G.A.-II
For the O.P. No. 2   : Mrs. Ranjana Mukherjee, Advocate
                     .........

11/Dated: 05/08/2022

Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioner, Mr.

Ashish Kumar, learned counsel for the State and Mrs. Ranjana Mukherjee, learned

counsel for the O.P. No. 2.

2. The present petition has been filed for quashing entire criminal

proceeding including the order taking cognizance dated 28.02.2020 and the

Criminal Complaint registered as C.G. No. 17/2014, pending in the Court of learned

Additional Chief Judicial Magistrate, Latehar.

3. Complaint has been filed alleging therein that the petitioner is

director of M/s Parijat Mining Industries India Private Limited. It is further alleged

that the DMO, Latehar has written a letter no. 449 dated 27.07.2013 that (i) the

lease had been granted from 29.09.1995 for 20 years without obtaining

Environmental Clearance from Ministry of Environment and Forest and (ii) the

production had been made from February, 1996 to May, 2012 without obtaining

Environmental Clearance from the Ministry of Environment and Forest under EIA

Notification 2006 which are in violation of the provisions of Environment

(Protection) Act, 1986.

It is further claimed on the basis of letter no. 279 dated 21.02.2014 of

the SEIAA addressed to the department of Forest and Environment, Government of

Jharkhand, Ranchi that the mine of M/s Parijat Mining Industries India Private

Limited was in operation without prior Environmental Clearance thereby violating

the provisions of the Environment (Protection) Act and by the said letter direction

was to take action against the unit. By letter no. 1981 dated 22.04.2014 direction

was given to launch prosecution against the unit.

It is further alleged that the company M/s Parijat Mining Industries India

Limited and its officials who were agent of the mine of the company have

committed offence under the Environment (Protection) Act for which they should

be prosecuted and punished.

On the basis of these allegations, complaint was filed against two persons

including the petitioner.

4. Mr. Pandey Neeraj Rai, learned counsel for the petitioner submits that

earlier cognizance was taken on 09.09.2014 which was challenged before this

Court in Cr.M.P. No. 1011 of 2019 and the same was allowed on limited ground by

order dated 18.11.2019 and the matter was remitted back to the concerned court

to pass order afresh after going through the specific provision of law. Thereafter

again cognizance has been taken vide order dated 28.02.2020. He submits that

the petitioner who is one of the directors of M/s Parijat Mining Industries and

residing in Daltonganj whereas the occurrence took place at Latehar and the

learned court without following the procedure under section 202 Cr.P.C.

straightway summoned the petitioner. He further submits that the mandatory

provision of section 202(2) Cr.P.C. has been discussed by the Hon'ble Supreme

Court in the case of "Udai Shankar Awasthi Vs. State of U.P." reported in

(2013) 2 SCC 435 at para 40 of the judgment in the following manner:-

"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case

himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."

5. Learned counsel for the petitioner further submits that in the light of

section 16 of the Environment (Protection) Act, 1986 if the offence has been

committed by a company and a person in charge of looking into day to day affairs

of the company is only liable to be prosecuted. He further submits that there is no

allegation against the petitioner who is director of the company. To buttress his

argument, he relied on judgment in the case of "Municipal Corporation of

Delhi Vs. Ram Kishan Rahtagi and Others" reported in (1983) 1 SCC 1

wherein para 15 the Hon'ble Supreme Court has held as under:

"15. So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (Accused 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed"

6. He further submits that petitioner's prosecution as director on the

basis of vicarious liability is impermissible in law as there is no cognizance order

against the company. He relied on judgment in the case of "Aneeta Hada Vs.

Godfather Travels & Tours (P) Ltd." reported in (2012) 5 SCC 661 wherein

paras 58 and 59 the Hon'ble Supreme Court has held as under:-

"58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted.

59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated

in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada is overruled with the qualifier as stated in para 51. The decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove."

On these grounds, learned counsel for the petitioner submits that the

entire criminal proceeding is fit to be quashed by this Court.

7. Per contra, Mrs. Ranjana Mukherjee, learned counsel for the O.P. No.

2 submits that there is no requirement of section 202 Cr.P.C. as the occurrence

took place at Latehar. She further submits that after remand a fresh order was

passed by which cognizance has been taken against the petitioner. She further

submits that the petitioner who is one of the director of the company, the learned

court has rightly taken cognizance against him and there is no illegality in the

cognizance order.

8. Mr. Ashish Kumar, learned counsel for the State submits that learned

court below has rightly taken cognizance.

9. In view of the above submission of the learned counsel for the

parties, the Court has gone through the materials on record and finds that in the

complaint itself the residence of the petitioner has been shown as Daltonganj

whereas the case has been instituted at Latehar. Section 202 Cr.P.C. was amended

in the year, 2005 making it mandatory and the judgment relied on by the learned

counsel for the petitioner has held that it is mandatory provision, which has not

been done by the learned court in passing the impugned order. Looking into

section 16 of Environment (Protection) Act, 1986 it appears that if the company is

an accused, a person in charge of looking into day to day affairs of the company is

only liable to be prosecuted. What is the role of this petitioner in discharging the

business of the company, has not been disclosed in the petition. Reference may be

made to the case of "Girdhari Lal Gupta Versus D.H. Mehta & Another"

reported in (1971) 3 SCC 189, wherein it has been held in para 6 as under:-

"6. What then does the expression "a person in-charge and responsible for the conduct of the affairs of a company mean" ? It will be noticed that the word 'company' includes a firm or other

association and the same test must apply to a director in-charge and a partner of a firm incharge of a business. It seems to us that in the context a person 'in-charge' must mean that the person should be in over all control of the day to day business of the company or firm. This inference follows from the wording of Section 23C(2). It mentions director, who may be a party to the policy being followed by a company and yet not be incharge of the business of the company. Further it mentions manager, who usually is in charge of the business but not in over-all-charge. Similarly the other officers may be in charge of only some part of business."

10. It is well settled that if the offence is committed by the company,

other persons who is incharge of to the day to day affairs, can be prosecuted and

only if the company is made accused. In the case in hand, earlier cognizance was

taken against the company as well as petitioner which was quashed by this court

and now again the learned court passed afresh order wherein he has not taken

cognizance against the company and cognizance has been taken against the

petitioner which is not in accordance with law.

11. In view of the above facts, reasons and analysis, entire criminal

proceeding including the order taking cognizance dated 28.02.2020 and the

Criminal Complaint registered as C.G. No. 17/2014, pending in the Court of learned

Additional Chief Judicial Magistrate, Latehar, are hereby quashed.