Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Gujarat High Court Case Information System
Print
CR.RA/244/1990 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 244 of 1990
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JAGDIP
V PANDYA - Applicant(s)
Versus
L.B.INDUSTIRIES
& 2 - Respondent(s)
=========================================================
Appearance
:
MR
KH BAXI for
Applicant.
MR RN SHAH for Respondent nos. 1 - 2.
Ms. Falguni D
Patel, APP. for for Respondent
no.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 11/11/2008
ORAL
JUDGMENT
1. This Revision Application filed under Section 397 read with Section 401 of the Code of Criminal Procedure challenges the judgment and order dated 30-5-1990 passed by the learned 2nd Joint Judicial Magistrate, First Class, Anand in Criminal Case no.4950 of 1988 whereby the learnd Magistrate convicted and sentence the present respondents-accused till rising of the Court and to pay a fine of Rs.500/-, in default, S.I. for 30 days.
2. The facts leading to the institution of the present Revision Application are that the present petitioner Jagdip V. Pandya, Assistant Law Officer, Gujarat Pollution Control Board, Race Course, Baroda had lodged complaint under Sections 31, 39 and 40 of (The) Air Pollution (Prevention and Control of Pollution) Act, 1981 on the basis of the fact that the Unit of the respondents at Vasad during the manufacturing process used raw material 10DT(800 grade) which emits black-white smoke with great density and caused pollution and this fact was noticed by the complainant during the inspection which was carried out on 4-6-1988. On the basis of the said complaint, offence was registered and the case was numbered as Criminal Case no.4950/1988.
3. Before the learned Magistrate, the respondents pleaded guilty and prayed for mercy and imposition of lesser sentence as they are poor persons whereupon the learned 2nd Joint Judicial Magistrate, First Class, Anand passed the judgment and order dated 30-3-1990 in Criminal Case no.4950/1988 whereby the respondents-accused were convicted and setenced till rising of the Court and to pay fine of Rs.500/-, in default, S.I. for 30 days. It is against this judgment and order of the learned Magistrate that the present petitioner (original complainant)has approached this Court by way of the present Criminal Revision Application.
4. Heard learned Advocate Mr. K.H.Baxi for the petitioner, learned Advocate Mr. R.N. Shah for the respondents nos.1 and 2 and Ms. Falguni D.Patel, learned A.P.P. for the State.
5. Mr.
K.H.Baxi, learned Advocate for the petitioner has submitted that the learned Magistrate has erred in awarding less than the minimum sentence prescribed under Section 37 of (The) Air (Prevention and Control of Pollution) Act,1981 and as such , the sentence being inadequate,the judgment and order passed by the learned Magistrate is bad in law and requires to be quashed and set aside.
6. As against that Mr. R.N. Shah learned Advocate for the respondents submitted that the offence is registered in the year 1988 and since such a long period has elapsed this Court should not interfere in Revision. In support of his submission Mr. Shah had placed reliance on the decision rendered in the case of C.M. Rao, Food Inspector v. Rohitkumar Kanchanlal Bhavsar & Ors. ( 1994-2 G.L.R. Vol.35 Page 1638).He further submitted that the respondents had already closed the entire unit after the incident in question and now they are not carrying out any manufacturing activities since then, and hence, also this Court should not intefere with the said judgment and order of the learned Magistrate.
7. This Court has gone through the Purshis whereby the respondents had pleaded guilty as also the judgment and order dated 30-5-1990 passed by the learned 2nd Joint Judicial Magistrate, First Class, Anand in Criminal Case no.4950 of 1988. Undoubtedly, the learned 2nd Joint Judicial Magistrate, First Class, imposing the above referred sentence against the respondents contrary to the provisions of law. A bare look at the relevant provisions of law, more particularly, Section 37 of the said Act makes it clear that the respondents accused ought to have been awarded the minimum sentence of six months. Merely because long period of time has elapsed since the incident that by itself would not be a ground for taking a lenient view in the matter. The decision cited by Mr. Shah has no bearing on the facts of the present case as the observation made therein are based on the peculiar facts and circumstances of that particular case. That apart, the learned Magistrate has also not assigned sufficient reason in support of his conclusion. Thus, there being error of law apparent on the face of the record, the Revision Application deserves to be allowed.
8. In the result this Revision Application is allowed. The judgment and order dated 30-5-1990 passed by the 2nd Joint Judicial Magistrate, First Class, Anand in Criminal Case no.4950 of 1988 is hereby quashed and set aside.
9. The matter is remanded to the trial Court for fresh consideration on merits and in accordance with law and as early as possible after affording opportunity of hearing to both the parties,without taking into consideration the Purshis filed by the respondents pleading guilty.
10. Office is directed to forward the R & Proceedings to the trial Court immediately.
(M.D.Shah,J.) lee.
Top