ORDER K.L. Shrivastava, J.

1. This revision petition is directed against the order dated 3-1-1987 passed by the learned Sub-Divisional Magistrate, Khachrod in Criminal Case No. 1 of 1985 whereby the petitioner's application under Section 133 of the Criminal Procedure Code, 1973 (for short 'the Code') has been dismissed.

2. Circumstances giving rise to the revision petition are these. The petitioner laid information for action under Section 133 of the Code before the learned S.D.M. on the following allegations. The Gwalior Rayon Silk Manufacturing & Weaving company, Indi Bhai Parikh and 18 others connected with the Grasim, the chemical factories and the hospital run by the Janseva Trust are responsible for polluting the air as also the water of river Chambal near Birlagram and this has led to the death of children, animals and the water-creatures. It was also stated that the pollution causes various deceases among the people and crops are also damaged,

3. The non-applicants opposed ' the petitioner's prayer. It was contended that in respect of the acts constituting offences under the Water (Prevention & Control of Pollution) Act, 1974 (for short 'the Water Act') and the Air (Prevention & Control of Pollution) Act, 1981 (for short 'the Air Act') previous written sanction of the State Boards constituted thereunder is necessary. These Acts deal with pollution by trade or industry.

4. It is not in controversy that on the date of which the information was laid before the learned S.D.M. the Water Act and the Air Act had come into force.

5. The learned S.D.M. upheld the non-applicants' contention and rejected the petitioner's prayer.

6. Aggrieved by the order aforesaid the petitioner has come to this Court in revision.

7. The point for consideration is whether the learned S.D.M., had jurisdiction to proceed with the inquiry.

8. It may be stated at the out set that point of jurisdiction can be examined at the very inception. In the decision in Mangharam's case it has been held that sanction under Section 197 of the Code of the requisite authority is condition precedent for taking cognizance and preliminary objection as to maintainability of the action can be gone into for in determining such a question the Court does not inquire about the truth or falsehood of the controversy but examines the question whether the condition necessary for the cognizance of the case is satisfied or not. Such an inquiry is not in the nature of the trial because it does not involve any decision on merits of the case.

9. Regarding the relevant offences and the penalties under the Water Act, Sections 24 and 43 thereof and regarding offences and penalties under the Air Act Sections 22 and 37 may usefully be perused.

10. The provisions embodied in Section 49(1) of the Water Act and Section 43 of the Air Act provide that cognizance of the offences thereunder cannot be taken in the absence of written sanction of the respective Boards. Section 60 of the Water Act, regarding over riding effect of its provisions reads thus:

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

Corresponding provision in the Air Act is in Section 52.

11. Section 26 of the General Clauses Act, 1898 (Central) relates to offences, (act or omission) falling under two enactments. It is to be applied unless the intention to repeal the prior law is clear by express provision to that effect or by implication arising out of incompatability to that effect between the two statutes. In the instant case it has no application as there is no prosecution in respect of any offence.

12. In passing, it may be pointed out that the express legislative mandate regarding previous sanction cannot be permitted to be whittled down by labelling the act complained of as an offence, not under the special Act but under the I.P.C. Prosecution for an act which is an offence under the special Act, by any agency other than the competent Board, on the ground that it is also an offence under the I.P.C. can be characterised as colourable because the offences under the special Acts are graver ones and labelling the act as an I. P.C. offences is just to evade the requirement of previous sanction under the special Acts.

13. Here we are concerned with the provision embodies in Section 133(1)(b) of the Code. It runs thus:

133(i). Whenever a District Magistrate, or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers -

(a)...

(b) that the conduct of any trade or occupation or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should he prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated;

Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation, or keeping any such goods or merchandise or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order -

to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise or to regulate the keeping thereof in such manner as may be directed;

Action under the provision is inconsistent with provisions of the Air Act and the Water Act so far as pollution is concerned.

14. Section 21 of the Water Act provides for taking samples of effluents. Sub-section (2) thereof makes the result of analysis inadmissible in evidence any legal proceedings in the absence of compliance with the various provisions in Sub-sections (3), (4) and (5). Section 26 of the Air Act contains similar provision. These provisions are for the due protection of the industries. It is true that these special Acts are not on the Statute-book for providing to the industries any absolute immunity from prosecution for offences. They are there to ensure a proper balance between the conflicting claims of nation's industrial progress and the hazards to the health of the citizens. The liability for. prosecution by the Board or with its written sanction even at the instance of other agency is very much there and the contention that the private individual is left with no remedy in respect of his grievance regarding pollution by industries has no merit.

15. The safeguards provided under (he Acts have rational basis and without them the industrialists could be vexed day in and day out by being dragged to the criminal courts for variety of reasons even unconnected with the vindication of the law.

16. As pointed out in the decision in A.R. Antulay v. R.S. Nayak . the principle that any one can set the criminal law in motion is subject to statutory exceptions. This right to set the criminal law in motion can also be subjected by the legislature to certain pre-conditions. The Water Act and the Air Act are special Acts brought on the Statute-book and constitute a complete Code for prevention and control of water and air pollution by any trade or industry. It has expressly been mandated therein that notwithstanding anything inconsistent therewith contained in any enactment other than the Acts their Provisions have to prevail. Inconsistent provisions in any other Act cannot, therefore, be permitted to come in the way of the provisions of the special Acts and defeat them. In view of the express provisions in Section 52 of the Air Act and Section 60 of the Water Act it has to be held that to the extent of inconsistency the provisions of the Penal Code, General Clauses Act and the Code stand repealed. In matters relating to pollution of air or Water by trade or industry recourse has to be taken to the provisions of the special Acts.

17. In the ultimate analysis I find that in view of the special Acts the learned S.D.M. was right in holding that he has no jurisdiction to proceed with the matter which is in relation to acts which constitute offences under the Water Act and the Air Act.

18. In the result, the revision petition fails and is summarily dismissed.