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HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
M.Cr.C No.4156/2005
Kamal Kishore & others
Vs.
Regional Officer, Pollution Control Board
Shri S.C Datt, learned senior counsel with Shri Kishwar
Khan, learned counsel for the applicant.
Shri B.P Pandey, GA for the respondent/State.
Shri Ashish Shroti, learned counsel for the
respondent/Pollution Control Board.
Whether approved for reporting : (Yes/No).
ORDER
(06.10.2017) This petition has been preferred under section 482 of the Cr.P.C against the impugned order dated 12/03/2003 passed in Criminal Case No.138/2003 (MP Pollution Control Board Vs. Kamal Kishore & others) by the Judicial Magistrate First Class, Satna with regard to taking cognizance of sections 37 and 39 read with section 40 of the Air (Prevention & Control of Pollution) Act, 1981 (hereinafter for brevity referred as Act) and issuing process for appearance of the applicants/accused persons and M/s Maihar Cement Company.
2. On 16/11/2015 on behalf of the petitioner no.3, it was expressed that he does not want to press this petition. Therefore, the petition qua petitioner no.3 dismissed as not pressed. Similarly, on 21/09/2017 on behalf of the petitioner no.2, it was expressed petitioner no. 2 does not want to press the petition. Hence the petition qua petitioner no.3 is also dismissed as not pressed.
3. Now this petition to be disposed of deeming to be filed by the petitioner no.1 challenging the aforesaid impugned order.
4. In this petition it is not controversial that at the relevant time applicant no.1 Kamal Kishore was the President of M/s Maihar Cement Company/accused no.4, which is producing cement and its production capacity have been enhanced from time-to-time.
5. Now facts giving rise to this petition are that on behalf of the respondent on 27/01/2003 a complaint for prosecution of applicants and M/s Maihar Cement Company for commission of offence punishable under section 37, 39 read with section 40 of the Act was filed. In the complaint it was alleged that the accused Company is engaged in manufacturing cement by using raw material such as crushed limestone, coal, literate, bauxite, clay, gypsum, etc; storage of the raw material, handling and transportation & generate particulate matters which are blown out in the air causing air pollution and this is within the knowledge of the accused person as it is all done under their directions. The consent is given for operation of the plant under Section 21 of the Act and conditions are imposed therein, of which the main conditions are installation of air control equipment, house keeping, control of fugitive emissions and keeping the stack and ambient emissions within limits as per prescribed standards. That other important conditions are that particulate matters through chimney do not exceed 150 mg per cubic meter before 05/12/2002 and after, 100 mg per cubic meter and suspended particulates not exceeding 500 microgram per cubic meter per day (average) and 60 microgram per cubic meter annually (average). That these conditions were mentioned in the consent letters/renewal of consent letters upto 2003 but the petitioners did not comply with the conditions and openly violated them. The complaint further mentions specifically that the officers of the Board took the samples of air from the factory premises in the presence of the officers of the company and from time to time, informed them about fugitive emissions exceeding the limits right from 2000 to 2002 and the officers of the Board also carried out inspections from time to time and apprised the management of the deficiencies found in inspection but the management of the factory did not take positive steps to stop air pollution.
6. Further on 24/12/2012 following procedure prescribed under section 26 and 27 of the Act, air samples were taken in the presence of Additional Manager Shri Vijay Kumar and samples were sent for labotary on 25/12/2012 and report was received on 26/12/2012 and send by registered post to Company on 10/01/2013 and according to the report sample indicated the presence of particles in excess of the norms, which is in violation of Section 26 of the Act, thus the Company is violating condition of consent and instructions and directions given to prevent or take appropriate measure to stop air pollution, which is punishable under section 37 and 39 of the Act and the entire operation of the factory and production of the cement have been carried out under the supervision of the applicants. Hence they as well as company are liable to be prosecuted accordingly.
7. With the complaint copy of several communications between the Pollution Board and the Company have been filed. Apart from it, report of analyst with regard to confirmation of air pollution has also been filed. On the basis of the avernment in the complaint and the documents submitted with the complaint by impugned order cognizance has been taken and process for appearance of the accused persons was issued, which is under challenge.
8. That the impugned order has been challenged mainly on the ground that the impugned order is non-speaking order. No reason has been mentioned. Hence the order is bad in law. The impugned order is also against the provision of section 40 of the Act as against the applicant no.1 there is no specific allegation indicating his responsibility for conducting the business of the Company as the applicant no.1 is not concerned with the day-to-day work and cannot be prosecuted. The impugned order have also been challenged on the ground that respondent has not followed the procedure for taking sample, therefore, report of the analyst is not acceptable and on the basis of the report no offence is made out. Therefore the impugned order be quashed.
9. Learned counsel for the respondent has contended that impugned order does not require any interference. It is in accordance with the law as for issuing process under section 204 of the Cr.P.C the Magistrate is not required to pass detailed reasoned order. His prima facie satisfaction on the basis of the averment of the complaint and other material submitted for perusal is sufficient. On recording such satisfaction, the order for issuance of process may be passed. In the instant complaint there is a specific avernment about violation of the section 37 and 39 of the Act and also specific avernment in the complaint as required under section 40 the Act for prosecution of the applicants. Apart from it, whether the report of analyst is acceptable or not or prescribed procedure has been followed or not or what is the affect of it, cannot be considered here. It is the subject matter of the trial court and on that ground this Court can't interfere in the proceeding of the trial court. Hence petition be dismissed.
10. Having considered the contentions of learned counsel for the parties and perusal of the record, in view of this Court applicant's contentions have no substance. The applicant has assailed the impugned order firstly on the ground that the Magistrate has not given any reason in the impugned order and any non-speaking order of the judicial authority is bad in law but this contention has no substance as the provision of section 204 of Cr.P.C does not require recording of reasons for issuance of process. The Apex Court in the case of Kanti Bhadra Shah Vs. State of West Bengal (2000) 1 SCC 722 has observed that "If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stage in the trial.
11. The aforesaid view have also been followed in the case U.P Pollution Control Board Vs. M/s Mohan Meakins Limited & others (2003) 3 SCC 745.
12. In view of the aforesaid pronouncements of the Apex Court recording of reasons for issuance of process is not must. Under section 204 of Cr.P.C it is expected from the Magistrate to examine the avernment of the complaint and the statements of complainant and witnesses, if taken or the other material produced in support of the complaint with a view to frame opinion that prima facie it appears that there is a sufficient ground for proceeding against the person named as accused. In view of the discussion, the impugned order cannot be assailed on the ground of lack of recording of reasons.
13. Further contention of learned counsel for the applicant is that the report of the analyst is not trustworthy but truthfulness of the report is not required to be examined at this stage under section 482 of Cr.P.C. The Hon'ble Apex Court in the case of U.P Pollution Control Board Vs. Dr. Bhupendra Kumar Modi & anr (2009) 2 SCC 147 has observed as under:-
When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. To put it clear, it is the function of the trial Judge to do so. .......However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal.
14. The avernment made in the complaint and the copies of communications and the report, prima facie satisfy that the report of analyst is admissible and prima facie believable for the purpose of framing opinion with regard to satisfaction of the Magistrate to proceed under section 204 of Cr.P.C. Therefore, on the aforesaid account also impugned order cannot be assailed.
15. Further the main contention of the applicant is that in the complaint there is no specific avernment about the applicant no.1 that he was responsible for the day-to-day business of the Company or was in-charge of the Company at the time of commission of the alleged offence as required under section 40 of the Act.
16. The provision of section 40 of the Act is as under:-
40. Offences by companies.--
(1) Where an 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 sub-section 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."
17. That with regard to interpretation of the aforesaid provision, learned counsel for the applicant has stated that as per sub-section (1) of Section 40 where an offence under this Act has been committed by company, every person who at the time of 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, has been deemed to be guilty. So apart from the company only the person who was directly in charge of and was responsible to the company for the conduct of the business of the company at the time of offence was committed is guilty. That as per sub- section (2) of section 40 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, shall also be deemed to be guilty. Thus, section 40 of the Act is very clear. It has been interpreted in AIR 1983 SC 67 (Municipal Corporation of Delhi Vs. Ram Kishan Rohatagi & ors). In paragraph 13 and 15, the Apex Court with respect to the Manager and the Director has observed that 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 has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed by the High Court. Further it is submitted that as per section 40 of the Act, and other provisions made in other special Acts like Negotiable Instruments Act section 141, the Hon'ble Apex Court in the case of National Small Industries Corporation Limited Vs. Harmeet Singh Paintal & other (2010) 3 SCC 330 held that offence committed by company as per provision of section 141 not every person connected with the company are liable but only those in charge of and responsible for conduct of business of the company at the time of commission of offence are vicariously liable. Hence, Director of accused Company who was not in charge of or responsible for the conduct of its business at the time of commission of offence, held, not so liable.
18. In reply learned counsel for the respondent has stated that in the paragraph 6 and 7 of the complaint, there are specific avernment with regard to applicant no.1 and other applicants that the entire operation of the factory and production of the cement are carried out under the supervision of all applicants and all the activities relating to violation of provision of section 37 and 39 of the Act are carried out on the direction and knowledge of the applicants/accused persons in which applicant no.1 as President, applicant no.2 as Joint President and applicant no.3 as Additional General Manager of the production are otherwise responsible for the production activities of the company. The communications show that with regard to the conditions and instructions to observe the provision of the Act have been communicated time-to-time to the applicants. Therefore prima facie it will be deemed that with their consent or connivance aforesaid activities of the company were taken place and if the applicant being the President has not paid attention running a factory for producing the cement with regard to non-compliance of the conditions with a view to prevent the pollution, it would amount to gross negligence of highest officer of the company, which also comes under the purview of sub-section (2) of Section 40 of the Act and if applicant pleads that the aforesaid activities of the company was not in his knowledge at all then he has right to prove such fact under the proviso sub-section (1) of Section 40 of the Act at the time of trial. This aspect or defence cannot be considered at the stage of issuance of process under section 204 of Cr.P.C and the order cannot be made questionable before this Court under section 482 of Cr.P.C on the aforesaid ground.
19. Learned counsel for the respondent has placed reliance on the judgment of U.P Pollution Board Vs. Dr. Bhupendra Kumar Modi (2009)2 SCC 147 in which it is held that when there is substantial avernment in the complaint with regard to Joint Managing Director Dr. Bhupendra Kumar Modi that at the relevant time he was in charge of the business of the company and responsible for the day-to-day working of the company, hence the order of Allahabad High Court with regard to quashment of the proceeding under section 482 of Cr.P.C is not upheld. In this case Apex Court has further observed in para 38 to 41, which is relevant and reproduced as under:-
38. In the case on hand which is also similar to Mohan Meakins Ltd. (2003) 3 SCC 745, had commenced its journey in the year 1985, nonetheless lapse of such long period cannot be a reason to absolve the respondents from the trial. In a matter of this nature, particularly, when it affects public health if it is ultimately proved, courts cannot afford to deal lightly with cases involving pollution of air and water. The message must go to all concerned persons whether small or big that the courts will share the parliamentary concern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment. Those who discharge noxious polluting effluents into streams, rivers or any other water bodies which inflicts on the public health at large, should be dealt with strictly de hors to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the courts should not deal with the prosecution for offences under the pollution and environmental Acts in a causal or routine manner.
39. It is our endeavour to point out that the High Court has quashed the complaint arising in an environmental matter in a casual manner by exercising power under Section 482 of the Cr.P.C. This Court has held exercise of power under Section 482of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e.
(a) to give effect to an order of the Court; (b) to prevent abuse of the process of the Court;
(c) to otherwise secure the ends of justice.
40. It is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto.
41. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. To put it clear, it is the function of the trial Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Cr.P.C. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal.
20. In the light of the above contentions and law laid down by the Apex Court and in view of the specific avernment in the paragraph 6 and 7 of the complaint, in view of this Court the respondent has made specific avernment as required under section 40 of the Act to prosecute the applicant for violation of section 37 and 39 of the Act by the company of which he was the President at the relevant time as in the instant case there is not only specific avernment in the complaint as mentioned earlier but there is also communications between the Pollution Board and President of the Company about the violation of the norms, directions and conditions to control and prevent the air pollution, which is natural result of the processing of production of the cement.
21. The person, who is President of the Company indulging in the activities of the production of cement cannot say that it is not his responsibility to see that the company is observing or not the provisions of the Act with a view to ensure safety and health of general public. The communications show that number of times instructions and warnings have been given to follow the norms with a view to prevent and control the air pollution and at the time of providing permission to extend capacity of the production specific and categorize conditions and norms have been communicated to the company and it cannot be presumed that the applicant being President of the Company was not aware about the aforesaid norms, conditions and continue violation by the company.
22. The President and other higher officers of the company cannot take plea that they are only concerned with the profit and loss of the company and they are not supposed to pay attention towards the observation of the law with regard to prevent or control of the pollution which is essential part of the nature of the industry concerned. Therefore, in view of this Court in present case there are specific avernments and material on record to frame the opinion by the Magistrate that prima facie sufficient ground exists for issuance of process to prosecute the applicants on the basis of the complaint for commission of offence under section 37 and 39 and section 40 of the Act.
23. In view of the discussion, this petition is dismissed being devoid of merits and interim order passed on 2/06/2005 with regard to stay of proceeding of the trial court stands vacated.
A copy of this order be also sent to the trial court for information.
(J.P.Gupta) JUDGE tarun/