Sunil Kumar Singh vs The State Of Jharkhand And Another
2023 Latest Caselaw 2169 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1662 of 2012

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      1.Sunil Kumar Singh
      2.Sunil Pandey                               .... Petitioners
                                 --  Versus --
      The State of Jharkhand and Another           .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Petitioners       :-   Mr. Ajay Kumar Sah, Advocate
       For the State             :-   Mr. Vishwanath Roy, Advocate
       For the O.P.No.2          :-   Mr. Prabhash Kumar, Advocate
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7/16.06.2023        Heard Mr. Ajay Kumar Sah, the learned counsel for the

petitioners, Mr. Vishwanath Roy, the learned counsel for the respondent

State and Mr. Prabhash Kumar, the learned counsel for the O.P.no.2.

2. This petition has been filed for quashing of the entire

criminal proceeding including the order taking cognizance dated

27.6.2012 arising out of C/7 Case No.162 of 2012, pending before

learned Chief Judicial Magistrate, Chaibasa.

3. The case in the complaint petition is that M/s Usha Martin

Limited, Ghatkuri RF, Barajamda, West Singhbhum is having lease area of

155.078 hectare. The lease period is valid till 15.8.2025. the MoEf Govt.

of India granted Environment Clearance to the unit for production of iron

ore 0.65 lakh ton per year. MoEF Government of India issued

corrigendum dated 29.5.2006 by amending production capacity of unit

from 0.65 lakh ton per annum to 0.65 million ton per annum. The Board

received raising and dispatch figures for the period 2005-06 to 2011-12

of iron and manganese mines vide letter dated 15.5.2012. The unit was

asked to show cause for making excess production in the year 2006-07

and 2007-08 in respect of quantity mentioned in the environmental

clearance. The unit's representative appeared to show cause on

9.06.2012 and submitted show cause reply vide letter dated 9.6.2012. It

is submitted that the project cannot increase production even if they

have the IBM/Min. of Coal's approval for the enhanced production until

environmental clearance is obtained for the enhanced rated capacity in

light of Circular dated 28.10.2004 issued by MoEf, Govt of India. The

unit has exceeded the production in the year 2006 -07 and 2007-08 as

per production data received from A.M.O Chaibasa. Thus, the unit has

exceeded the production in year 2006-07 and 2007-08 in respect of

production capacity mentioned in E.C. The offence committed by the

accused unit is punishable under section 15 of Environment (Protection)

Act, 1986.

4. Mr. Sah, the learned counsel for the petitioners submits that

the petitioners have been made accused on the ground that they were

agent and Mines Manager of the company in question. He submits by

way of referring section 16 of the Environment (Protection) Act, 1986

that the employee and officer of the company, who was directly incharge

of, and was responsible to the company for the conduct of the business

of the company shall be deemed to be guilty. He submits that the case is

made out against them as they were not looking after the day to day

affairs of the company.

5. On the other hand, Mr. Prabhash Kumar, the learned

counsel for the O.P.No.2 submits that in view Environment (Protection)

Ac, 1986 the petitioner is liable to be prosecuted. He further submits that

the learned court has rightly taken cognizance. According to him, the

petitioners were looking after the day to day affairs of the company.

6. Learned counsel for the respondent State submits that

learned Court has taken cognizance under the said Act which is special

provision and this Court may not entertain this petition.

7. In view of the above submission of the learned counsel

appearing for the parties, the Court has gone through the materials on

record and finds that admittedly the petitioners were agent of mines and

Mines Manager of the company. The learned court has taken cognizance

under section 15 of the Environment (Protection) Act, 1986. Section 16 of

the Environment (Protection) Act, 1986 reads as under:

"16. Offences by companies- (1) Where any 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 subsection 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."

8. On perusal of sub-section 1 of Section 16, it is clear that if the

offence is committed by a company, the officer who is directly in charge

and was responsible to the company for the conduct of business of the

company as well as the company are liable to be punished. In the entire

complaint petition, there is no averment that these petitioners were in-

charge and they were looking to the day-to-day affairs of the company.

9. The provisions of Section 16 of the Environment (Protection) Act,

1986 are pari materia the same of Section 141 of the Negotiable

Instrument Act as well as Section 25 of the Contract Labour (Regulation

and Abolition) Act 1970 and Section 278-B of the Income Tax Act. The

Hon'ble Supreme Court while dealing with the cases under Negotiable

Instruments Act in National Small Industries Corporation Ltd. v.

Harmeet Singh Pental and Another; [2010 (3) SCC 330] has held

that it is mandatory for the complainant to make averments in the

complaint petition that the accused is directly in charge and was

responsible to the company for the conduct of the business of the

company. The said ingredient is missing in the case in hand. Moreover

the company is not made an accused in the complaint.

10. So far as the contention of Mr. Prabhash Kumar, learned counsel

for opposite party no.2 is concerned, that is not accepted by this Court in

view of the fact and there is no such averments in the entire complaint

and the case of the petitioner is fully covered in view of the judgment in

the case of National Small Industries Corporation Ltd. v. Harmeet

Singh Pental and Another; [2010 (3) SCC 330].

11. In view of the above reasons and analysis the entire

criminal proceeding including the order taking cognizance dated 27.6.2012

arising out of C/7 Case No.162 of 2012, pending before learned Chief

Judicial Magistrate, Chaibasa is quashed.

12. This petition is allowed and disposed of.

13. Interim order granted earlier by this Court stands vacated.

( Sanjay Kumar Dwivedi, J.)

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