If special law puts restriction on taking cognizance, Magistrate cannot order FIR [Read the Judgment].

A bench of Justice Dangre in the case titled Pratap Lal Teli vs The State of Maharashtra on 22.10.2019 has rejected a challenge against dismissal of a plea seeking FIR against Kumar Mangalam Birla when it found that Environment Act puts restriction on power to take cognizance.

The Applicant asserts that he is a social conscious person and has been taking up various social issues relating to environment and in particular the harm caused to the environment on account of illegal construction. He proceeds on the premise that several accused persons have commenced construction of a Commercial and I.T. building without adhering to the norms contained in the Environment (Protection) Act, 1986 i.e. without obtaining the Environmental Clearance from the State Environment Impact Assessment Authority (“SEIAA”) under the EIA Notification of 2006 and thereby they have cheated the Government. He, therefore, filed a complaint under Section 156(3) of the Criminal Procedure Code seeking police investigation for the alleged offences under Sections 420, 120-B and Section 187 of the Indian Penal Code read with Section 15 of the Environment (Protection) Act. The said complaint came to be rejected by the learned Metropolitan Magistrate in view of the barrier contained in Section 19 of the Environment (Protection) Act. Being aggrieved, he preferred an appeal to the Sessions Judge, which also resulted in dismissal by order dated 12th December, 2018. Applicant approached the High Court.

Bombay High Court observed and held as under:

"Learned counsel for the Applicant has posed a question whether the offence under Section 15 of the Environment (Protection) Act is a cognizable offence.

The said proposition is not in dispute as one looks at Section 15, it would disclose that failure to comply or acting in contravention to the provisions of the rules, orders and direction is punishable with imprisonment for a term which may extend to five years and if the failure or contravention continues beyond a period of one year from the date of conviction, the punishment to be imposed may extend to imprisonment for a term upto seven years. Offence in terms of Part-II of Schedule-I appended to the Code of Criminal Procedure makes it cognizable and non-bailable.

The manner in which the cognizance of the offence under the Act can be taken is set out in Section 19 and the cognizance can only be taken on a complaint by the Central Government or any authority or officer authorized in this behalf by the Government.

Other mode of taking cognizance is on a complaint made by a person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid. It is this provision contained in the special enactment which is besieged by learned counsel Mr. Pratap.....

Such an eligibility criteria being prescribed by a statute would therefore constrict the operation of Section 190 of the Code of Criminal Procedure which empowers the Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitutes such an offence.

Section 190 of the Code of Criminal Procedure which otherwise do not perceive any qualification or eligibility of the complainant to file a complaint is circumscribed by a provision contained in the special statute to the contrary which may indicate the qualification or eligibility of the complainant to file complaint, the Magistrate before taking cognizance is then entitled to enquire as to whether the complainant satisfies the eligibility criteria. ....

In the light of the settled position of law and the provisions contained in the Environment (Protection) Act, 1986 which is a special enactment, I do not wish to delve into the contention of the learned counsel for the Applicant that Section 154 comprised a pre-cognizance stage and when the police proceed to investigate under Section 154 of the Code of Criminal Procedure, the cognizance stage would come at the stage of Section 173 since there is a fetter created in taking cognizance of an offence without the modality set out in Section 19 of the Environment (Protection) Act.

The contention of the Applicant that he is a private person and is at liberty to file FIR with the police disclosing cognizable offence by the accused under Section 15 of the Environment (Protection) Act is without any merit and substance.

The present Criminal Application is without any merit and the inherent deficiency noted by the Metropolitan Magistrate in the first instance and the Sessions Court in revision, in not entertaining the complaint by the Applicant cannot be faulted with and both the impugned orders do not call for any interference. The Criminal Application is dismissed with no order as to costs".

Read the Order here:

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