M.Cr.C. No.4475/2016

06/02/2017

:-

Ms. Preeti Waghmare, learned counsel for the applicant.

Shri Sunil Kumar Sharma, learned counsel for the non- applicants.

Argument of both the counsel heard finally.

The applicant has filed the present petition under Section 378 (3) of Cr.P.C. for grant of leave to appeal against the order dated 28/08/2015 passed by ASJ, Rajgarh in criminal appeal No.38/2013 whereby learned appellate Court reversed the judgment dated 29/12/2012 passed by JMFC, Narsinghgarh, District-Rajgarh in criminal case No.171/2007 and acquitted the non-applicants from the charges under Section 44 readwith 25/26 of Water (Prevention and Control Pollution) Act, 1974 (which shall be referred hereinafter as "Act").

2. It is submitted by learned counsel for the applicant that learned appellate Court has erred in considering the documents annexed with the report filed by the applicant and also erred in considering the fact that the non-applicants never disputed the consent of filing complaint. It is further submitted that learned appellate Court erred in not considering that the applicant - Board is established under Section 4 of the Act by State Government and all the documents filed by Government are also the Government documents. The non-applicants were damaging the environment and indirectly playing with the health of human being. Learned appellate Court did not consider this fact and erred in acquitting the non-applicants.

3. Per contra, learned counsel for the non-applicants have M.Cr.C. No.4475/2016 supported the judgment of learned appellate Court and submitted that the applicant could not prove the charge before the trial Court beyond reasonable doubt. Learned trial Court failed to appreciate the evidence and the documents of the applicant and also the evidence produced before it, therefore, learned appellate Court has rightly reversed the judgment and has passed a reasoned order duly supported by the documents.

4. I have considered the submissions of both the learned counsel and gone through the record.

5. Learned appellate Court acquitted the accused persons mainly on the ground that the applicant could not establish their case beyond reasonable doubt that the sample was taken after following the due process envisaged under Section 21 sub-section 2, 3, 4 or 5 of the Act. Further, it is found that original documents had not been filed before the trial Court up till the statement of complainant - Alok Kumar Jain (PW/1), though these documents filed later-on and available with record but these have been filed at a later stage and their filing is also doubtful. Further, they have not put-up before the non- applicant during the statement of accused. It is also found that the consent requisite for filing of the prosecution/complaint was also not proper. Learned appellate Court has discussed all these grounds in para 14, 15 and 16 of the judgment. Finding of learned appellate Court is fully supported by the documents produced and available on record.

6. Considering the aforesaid, I do not find any illegality or M.Cr.C. No.4475/2016 impropriety in the judgment passed by learned appellate Court, therefore, I refrain myself to interfere with the judgment of the appellate Court. In my considered opinion, this is not the fit case to grant leave to appeal, therefore, leave is declined. Accordingly, petition stands dismissed and disposed off.

(Virender Singh) Judge Aiyer*