IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. M.P. No.280 of 2011
      Mahboob Alam @ Md. Mehboob Alam                ...     ...    Petitioner
                                Versus
      The State of Jharkhand & Ors.                  ...     ...   Opp. Parties
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      CORAM:        HON'BLE MR. JUSTICE R.R. PRASAD
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      For the Petitioner        : Mr. B.N. Singh, Sr. Advocate
      For the respondents       : Mr. A.K. Pandey, J.S.P.C.B.
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02/06.02.2012

: Heard learned counsel appearing for the petitioner and learned counsel appearing for the Jharkhand State Pollution Control Board.

This application is directed against the order dated 09.03.2007 passed by the then learned Judicial Magistrate, 1st Class, Chaibasa in Nowamundi P.S. Case No.46 of 2006, corresponding to G.R. No.494 of 2006 whereby cognizance of the offence under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981, has been taken against the petitioner.

It does appear that one Manikant Prasad, the then Regional Officer, Jharkhand State Pollution Control Board, Adityapur, Jamshedpur lodged a case before the Officer-in-Charge, Nowamundi Police Station, alleging therein that M/s New India Minerals, Nawamundi, Jharkhand, to which the petitioner is the Proprietor, without having consent to establish its factory and without taking consent for its operation, was running a factory in violation of the provision as contained in Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, which is punishable under Section 37 of the said Act.

The police having investigated the case, did find the allegation to be true and hence, submitted charge sheet, upon which cognizance of the offence was taken on 09.03.2007, which is under challenge.

Mr. B. N. Singh, learned Sr. Counsel appearing for the petitioner submits that the order taking cognizance is bad for the simple reason that under Section 43 of the Air (Prevention and Control of Pollution) Act, 1981, cognizance of the offences can be taken only on a complaint made by the Jharkhand State Pollution Control Board or any officer, authorized in this behalf or by any person, who has given notice of not less than sixty days in the manner, as prescribed under sub-section (b) of Section 43 of the said Act. But here in the instant case, cognizance has been taken on a charge sheet submitted by the Police and hence, any order taking cognizance, on the basis of the charge sheet, is quite bad, in view of the provision as contained in Section 43 of the said Act.

As against this, Mr. A.K. Pandey, learned counsel appearing for the Jharkhand State Pollution Control Board submits that Mr. Manikant Prasad, the then Regional Officer of the Jharkhand State Pollution Control Board had been authorized by the then Member Secretary to lodge FIR and since, the FIR had been lodged by an authorized officer, the order taking cognizance can never be said to be bad.

Having heard learned counsel appearing for the parties, it does appear that there has been no dispute that the then Regional Officer of the Jharkhand State Pollution Control Board had lodged a case, wherein it has been alleged that the petitioner had contravened the provision of Section 21 of the said Act, which is punishable under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981.

The Police, on finding the allegation to be true, submitted charge sheet ,on the basis of which cognizance of the offence has been taken vide impugned order. The question does arise as to whether the order taking cognizance is in accordance with law?

In this context, provision as contained in Section 43 of the Air (Prevention and Control of Pollution) Act, 1981 be referred to, which reads as follows:-

43. Cognizance of Offences-(1) No court shall take cognizance of any offence under this Act except on a complaint made by--

(a) a Board or any officer authorized in this behalf by it; or

(b) any 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 Board or officer authorized as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

Thus, the aforesaid provision, does stipulate that only on the basis of the complaint lodged by the Board or any other officer, as mentioned in sub-section (a) or by the person as mentioned in sub-section (b), the cognizance of the offence can be taken.

Here in that instant case, cognizance of the offence has been taken, not on the basis of the complaint lodged by the Officer as mentioned in sub-section-a & b of Section 43, but on the basis of the charge sheet submitted by the police, which is never in consonance with the provision as enshrined in Section 43 of the Air (Prevention and Control of Pollution) Act, 1981 .

At this stage, I may state that the offences under the aforesaid Act seems to be punishable upto six years and in that view of the matter, the offences being cognizable can be investigated upon by the Police for which there has been no doubt about it but the cognizance, as per the provision, as contained in Section 43, needs to be taken on the basis of the complaint made by the officer as mentioned above.

Admittedly, the word "complaint" has not been defined in that Act but the Section 54 does stipulate about the manner in which cognizance would be taken and in that event, sub-section 2 of Section 4 of the Code of Criminal Procedure, would come into play, which provides that all the offences under