Uttarakhand High Court
Masood Alam Mallick vs State Of Uttarakhand And Another on 13 February, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
C482 Application No. 189 of 2024
13th February, 2024
Masood Alam Mallick ........Applicant
Versus
State of Uttarakhand and Another ....Respondents
With
C482 Application No. 188 of 2024
Ch. Raghu Kiran ........Applicant
Versus
State of Uttarakhand and Another ....Respondents
With
C482 Application No. 190 of 2024
Devvarakonda Bapanna Satya
Sai Rameshwara Sastry ........Applicant
Versus
State of Uttarakhand and Another ....Respondents
With
C482 Application No. 191 of 2024
Abhay Ranjan ........Applicant
Versus
State of Uttarakhand and Another ....Respondents
With
C482 Application No. 199 of 2024
Ahsan ........Applicant
Versus
State of Uttarakhand and Another ....Respondents
And
2
C482 Application No. 200 of 2024
R. Rama Mohan Rao ........Applicant
Versus
State of Uttarakhand and Another ....Respondents
Counsel for the applicant : Mr. Arvind Vashisth, learned Senior
Counsel, assisted by Mr. Nipun Dave,
learned counsel and Mr. Mr. Shashwat
Dubey, learned counsel
Counsel for the respondent No. 2 : Mr. Aditya Pratap Singh, learned counsel
Counsel for the State : Mr. Saurabh Pandey, learned Brief Holder
Hon'ble Rakesh Thapliyal, J. (Oral)
1. All these applications preferred under Section 482
CrPC are being decided together with the consent of the
learned counsel for the parties.
2. By all these Applications, preferred under Section
482 CrPC, the applicants are challenging the proceedings
of Criminal Case No. 6124 of 2022, Uttarakhand Pollution
Control Board Vs. Masood Mallick and others, pending in
the Court of IIIrd Additional Chief Judicial Magistrate,
Dehradun, District Dehradun. In addition to the
proceedings, the applicants are also challenging the
orders dated 09.11.2022, 06.01.2023, 30.09.2023 and
20.11.2023.
3. By order dated 09.11.2022, the learned IIIrd
Additional Chief Judicial Magistrate took cognizance on
the complaint filed by respondent No. 2 on 02.09.2022
and summoned all the applicants for the offences
punishable under Section 44 of the Water (Prevention
and Control of Pollution) Act, 1974, as well as for the
offences punishable under Section 37 of the Air
(Prevention of Control of Pollution) Act, 1981 and also for
the offences punishable under Section 15 of the
Environment (Protection) Act, 1986.
4. The order dated 09.11.2022 has been challenged on
the ground that as per the allegations, as alleged in the
complaint, in fact, the allegations are against the
company, known as M/s Dehradun Waste Management
Pvt. Ltd. (DWMPL in short), but the company has not
been made as accused in the complaint.
5. It is submitted that only the office bearers and the
management persons being in-charge of & responsible to
the Company for conduct of businesses of the company,
are made accused in the complaint.
6. In para 9 of the complaint, it is further alleged that
the accused company i.e. DWMPL had violated the terms
and conditions as prescribed under the Consolidated
Consent and Authorization (CCA), accordingly, they were
served with directions for show-cause under Section 33-A
of the Water (Prevention and Control of Pollution) Act,
1974, and Section 31-A of the Air (Prevention of Control
of Pollution) Act, 1981, vide notice dated 09.02.2019 and
subsequently, the inspection was carried out on
01.08.2019 by the officers of the complainant Board in
the presence of the project representatives of the
accused company, being Shri R. Prabhakar and Shri
Harshit Kumar.
7. The officers of the Board vide their inspection report
dated 14.08.2019 have found that the accused company
has not complied with the direction issued as per the
show-cause notice dated 09.04.2019 and along with the
report, the photographs of the site and the violations
were also duly indicated, which were sent to the Head
Office vide letter dated 16.08.2019. Thereafter, the Head
Office of the complainant Board, vide letter dated
07.09.2019 had directed that the Regional Office to
assess the amount of environmental compensation,
caused due to the non-compliance by the accused
company.
8. It is argued by Mr. Arvind Vashisth, the learned
Senior Counsel for the applicant that as per the
allegations alleged in the complaint, the allegations are,
in fact, against the company, but the company is not
made an accused in the complaint.
9. In reference to this, Mr. Arvind Vashisth, the
learned Senior Counsel submits that if the offences are
committed by the company, then in view of Section 16 of
the Environment (Protection) Act, 1986, it is mandatory
that the company should be made a party in the
complaint, but, here in this case, though the allegations,
as alleged, are against the company, but the company is
not made an accused.
10. In support of his argument, the learned Senior
Counsel for the applicants place reliance on a judgment
rendered by the Hon'ble Supreme Court in the case of
Sharad Kumar Sanghi Vs. Sangita Rane, 2015 (12)
SC 781, wherein the Hon'ble Supreme Court held that if
the allegations are against the company and company
has not been arrayed as a party, no proceeding can be
initiated against it even where vicarious liability is
fastened on certain statutes.
11. It is further submitted that the complainant having
failed to arraign parent company as well as operator
company as an accused, is in fact a "fundamental error"
inasmuch as even if the allegations are taken as
uncontroverted, no offence can be made out against the
applicants as it is a settled law that officers of a company
cannot be made vicariously liable for the offence
committed by the company without the company being
made liable for the same. In reference to this, reliance is
placed on the decision of Hon'ble Supreme Court in the
case of Aneeta Hada Vs. Godfather Travels and
Tours Private Limited, (2012) 5 Supreme Court
Cases 661, which was in the context of the Negotiable
Instruments Act, 1881.
12. Mr. Aditya Pratap Singh, learned counsel, who
represents the complainant, fairly submits that in fact,
due to some ill advice, the company was not made an
accused in the complaint, which is, in fact, the mandate
of Section 16 of the Environment (Protection) Act, 1986.
On instructions, he further submits that in respect to the
offence committed by the company, penalty had been
imposed under the head of the environment
compensation for serious violations under the provisions
of Air (Prevention of Control of Pollution) Act, 1981, as
well as under the provisions of Water (Prevention and
Control of Pollution) Act, 1974.
13. Admittedly, in the present case, as per the
allegations, as alleged in the complaint, the allegations
are against the company and the company has not been
made as an accused in the complaint, therefore, the
proceedings, at this stage, cannot be initiated against the
applicants since the company is not made as an accused
in the complaint.
14. Accordingly, the summoning order dated
09.11.2022 passed by the IIIrd Additional Chief Judicial
Magistrate, Dehradun in Criminal Case No. 6124 of 2022,
Uttarakhand Pollution Control Board Vs. Masood Mallick
and Others is hereby quashed.
15. The matter is remanded back to the learned IIIrd
Additional Chief Judicial Magistrate, Dehradun with the
direction to pass a fresh order in accordance with law.
16. With the aforesaid directions, the C482 Applications
stand disposed of.
17. Let a copy of this order be placed in the file of each
of the connected C482 Applications.
___________________________
Rakesh Thapliyal, J.
Dt: February 13, 2024
Mahinder/
