JUDGMENT J.N. Bhatt, J.

1. The petitioners, by this petition, have assailed the order passed by the learned Chief Metropolitan Magistrate, Ahmedabad, on 26-9-1991 in Criminal Case No. 728 of 1989, by invoking the aids of the provisions of Section 397 read with Section 401 of the Criminal Procedure Code, 1973 ("Code" for short).

2. A short resume of the facts giving rise to the present petition, may be narrated, at the outset.

Respondent No. 1 herein is the original complainant and the petitioners herein are the original accused, against whom a criminal complaint was filed in the trial Court for the violation of the provisions of Section 25 punishable under the provisions of Section 44 of the Water (Prevention and Control of Pollution) Act, 1974 ("the Act" for short), on 27-3-1989. The substratum of the prosecution case is that the accused persons are responsible and guilty for the discharge of 10,000 litres of untreated trade effluent into the stream of a river and for the pollution of water, etc., and thereby they violated the provisions of Section 25 of the Act. During the course of the proceedings before the trial Court, the petitioners preferred an application on 8-7-1991 before the trial Court contending that the proceedings against them should be stopped as the Court was incompetent to take cognizance on the ground of non-production of the sanction of the State Board alongwith the complaint as required under the provisions of Section 49(1) of the Act. After hearing both the parties, the learned Chief Metropolitan Magistrate, Ahmedabad, rejected the said application of the petitioners. Hence this revision by the petitioners who are originally accused persons.

3. A very short but interesting question which has surfaced in this petition for the consideration is as to whether the non-production of the written sanction alongwith the complaint as required under Section 49(1) of the Act "ipso facto" is fatal 'or would constitute legal fetter in the maintainability of the complaint?

4. Following admitted facts may be narrated at mis juncture:

1. That the complainant mentioned in para 2 of the complaint that the sanction dated 8-2-1989 is given by the Chairman of the Board for lodging prosecution against the accused.

2. That the application for quashing the proceedings in the trial Court was submitted on 8-7-1991 and the complaint was filed on 27-3-1989, mat means, it was submitted in the Court more than 2 years and 3 months after filing of the complaint.

3. That the written sanction dated 8-2-1989 was submitted in the trial Court on 14-8-1991. The impugned decision was given on 26-9-1991.

5. Learned Counsel for the petitioners has firstly contended that the written valid sanction which is a prerequisite for taking cognizance of the offence under the Act was not produced alongwith the complaint while the trial Magistrate was called upon to take cognizance of the offence and, therefore, serious illegality is committed by the trial Magistrate in rejecting the application as he was not competent to proceed in the matter further. This submission is countered with equal vehemence by the Learned Counsel Mr. Trivedi for the original complainant. This submission made by the Learned Counsel for the petitioners may prima facie, appear to be subtle but not sustainable. In the opinion of This Court, non-production of written sanction contemplated under the provisions of Section 49(1) of the Act alongwith the complaint at the time of taking cognizance 'ipso facto' would not constitute any fetter or hurdle in the maintainability of the prosecution under the Act.

6. The complaint is filed by one Mr. D.K. Solanki, who is an Assistant Law Officer of Gujarat Pollution Control Board, who was given written sanction by the Chairman of the State Board on 8-2-1989 as stated in para 2 of the complaint, which statement is not disputed.

7. It would be appropriate at this stage to refer to the relevant provisions I of the Act. Section 49(1) of the Act is relevant as it relates to taking of cognizance of the offence under the Act. It reads as under:

49. (1) No Court shall take cognizance of any offence under this Act except on a complaint made by, or with the previous sanction in writing of the State Board, and no Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act.

"State Board" is defined in Section 2(h) which reads as under:

"State Board" means a State Board for the Prevention and Control of Water Pollution constituted under Section 4.

It is not disputed that by virtue of the provisions of Section 11A of the Act the Chairman of the State Board can exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the Board. The Chairman of the Board is delegated such powers for giving previous sanction in writing by the State Board by virtue of the said provision

8. Learned Counsel for the petitioners has placed reliance on the decision of we Supreme Court in the case of Nagraj v. State of Mysore . In this decision, the Supreme Court has observed mat if the Court comes at any stage to the conclusion that the prosecution could not have been launched without the sanction of the Government, it is not essential that the Courts must pass order essentially acquitting or discharging the accused. In fact, no such order can be passed if Section 132 of the Criminal Procedure Code, 1898 applied. It is further held mat the complaint could not have been instituted without the sanction of the Government and the proceedings on the complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. It was, therefore, held that when the proceedings are void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected.

9. After having carefully examined the said decision of the Supreme Court, in the opinion of This Court, it is inapplicable to the facts of the present case. In the case on hand, required written sanction had already been obtained. It was also so staled in the complaint but it was not produced at the time of filing complaint. Therefore, the ratio propounded in the said authority is not attracted in the present case.

10. The Learned Counsel for the petitioners has also placed reliance OHMthe decision of the Supreme Court in the case of R.S. Nayak v. A.R. Antulay . In that decision it was held that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 of the Prevention of Corruption Act, 1947 is the date on which the Court is called upon to take cognizance of the offence of which he is accused. As observed before, this is not a case where requisite written sanction was not given on the date of taking cognizance of the alleged offence. The question in focus in the present case is non-production of valid written sanction alongwith the lodging of the complaint. When the objection was raised on behalf of the accused persons, the written sanction given much prior to the date of filing of the complaint was also produced before the impugned order came to be passed. Thus, the said decision is also not helpful to the petitioners.

11. Learned Counsel for the petitioners has also relied on a decision of the Supreme Court in the case of C.R. Bansi v. State of Maharashtra . In that case it was held that the existence of valid sanction is prerequisite for taking cognizance of the enumerated offences alleged to have been committed by a public servant. Thus, it was held that there is a bar in taking cognizance of such offences by the Court if the written sanction was not in existence. So is not the case in the present revision. It is nobody's case that written sanction under Section 49(1) of the Act was not in existence. Therefore, this decision is of no avail to the petitioners.

12. It could be very well seen from the provisions of Section 49 of the Act that complaint is to be made by or order with previous sanction in writing of the State Board. Therefore, it is explicit that the complaint made by the Board will be a valid complaint regarding its maintainability, even taking into consideration the element of sanction. It is also very clear that if the complaint is made by someone else, meaning thereby, any officer of the Board, in such a situation that complaint can be said to be valid considering the element of sanction only when prior to making complaint sanction was accorded in writing by the Board. It has been specifically mentioned in para 2 of the complaint filed on 27-3-1989 that the Chairman of the State Board, who is delegated the powers under Section 11A of the Act was authorised by the State Board by a resolution to permit was prosecution and pursuant to the said authority delegated to the Chairman, he (Chairman of the State Board) had given written, sanction on 8-2-1989 to the complainant for filing complaint in the Court against the accused. Thus, the written sanction was given to launch prosecution against the accused much prior, i.e., before one month and 20 days. Although it was mentioned in para 2 of the complaint, the complainant did not produce such a written sanction alongwith the complaint while filing it in the Court. Under the circumstances it cannot be contended even for a moment that there was a bar of taking cognizance of the complaint as written sanction order was not produced on the date of filing of the complaint. Such a submission is, totally, meritless and cannot be subscribed to. Non-production of written sanction alongwith the filing of complaint at the best could be said to be a technical flaw and which in no case can be allowed to thwart the prosecution when serious allegations of serious offences are alleged in the complaint. The complainant alleged violation of the provisions of Section 25 of the Act, which is made punishable under Section 44 of the Act. The alleged offence under Section 25 of the Act is a serious offence as it affects the health of the people. One of the fundamental objects of the Act is to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes of preventing the water pollution and the working and controlling the water pollution.

13. The Court has also not to go into such technical flaws at the stage of taking cognizance. However, it may be mentioned that it would have been better had the complainant placed the written order of sanction or at least a copy thereof produced alongwith the complaint. What is emphasised is it is expedient but it cannot be said to be incumbent. No provision is pointed out whereby it could be concluded that the placement or submission of such a written sanction order or copy thereof is sine qua non and without which the proceeding was initiated.

14. Again, it may also be mentioned that the application for dropping the proceedings or stopping the proceedings preferred by the petitioners before the trial Court would, in reality, amount to quashing the process issued. The powers of Court in an application for quashing the process are very much circumscribed and they are required to be exercised sparingly and that too, for doing justice in the matter.

15. It is a settled proposition of law that the jurisdictional sweep of the revisional Court is also very much circumscribed Unless and until gross perversity or manifest error of law or mis-appreciation of the apparent facts is successfully pointed out or spelt out from the record, the revisional Court should be loam to interfere with the order impugned. The trial Court has exercised its discretion and has reached to the conclusion while rejecting the application of the petitioners-accused that mere non-production of a written sanction order or its copy would not vitiate the proceedings of the complaint. No doubt, prima facie, it appears that little confusion arose in appreciating and examining the destination between the authorisation and written sanction as contended before This Court. Nonetheless, the ultimate conclusion reached by the trial Magistrate is absolutely explicit. That non-production of such a documentary evidencing written consent 'ipso facto' would not bring death of the prosecution at the threshold.

16. Needless, to reiterate that even the powers of This Court in view of the provisions of Section 482 in an application for quashing the process are also very much circumscribed and the powers under Section 482 are required to be exercised sparingly and in order to render the justice whereas exercise of powers of Section 482 or even under Section 397 in this particular matter, it would be rendering injustice. Prosecution under social legislation like pollution laws should not be lightly and leniently dealt with. No doubt, such cases are ought to be disposed of expeditiously. Technical flaws or any such procedural infirmity should not hamper or constitute hurdle in the way of the prosecution looking to the gravity of the offence and hazards of health.

17. It would be appropriate at this stage to refer to the observations made by This Court in a recent decision rendered in the case of Dwarka Cement Works Ltd. v. State of Gujarat reported in 1992 (1) GLH 9 : (1992 (1) GLR 422 as under (at page No. 425 of GLR):

...The matter and material of details are always subject-matter of the evidence to be led at the time of the trial while recording the evidence At the initial stage of issuing the process, the Court has to mainly find out whether the facts disclosed in the complaint contain a 'germ' of the alleged offence-the 'ingredient', to put the criminal law in motion or not. If that 'germ' or the 'ingredient', is found to be present in the complaint, there is also scope for any grievance that because the detailed description about the manner was absent in the complaint, the learned Magistrate was not justified in issuing the process. The material available in the complaint cannot be insisted upon as that much material on the basis of which an order of conviction can be recorded. The test for initiation of the criminal proceeding and by virtue of the same, the issuance of the process is the existence of the prima facie material while the test for termination of the process in order of conviction and sentence is fullfledged material establishing the guilt beyond the doubt.

18. Learned Counsel for respondent No. 1-complainant, Mr. Trivedi, has also seriously, contended that the pollution proceedings and prosecution under such an Act are time and again delayed by the accused who are mostly big industrialists or manufacturers. In that he has contended that application to stop or drop the proceedings or even quashing the process came to be filed more than two years after the criminal case and, therefore, also This Court should refuse straightaway to interfere in such matter at this revisional stage. This submission also requires consideration as there is much substance therein. He has also relied on some of the observations made by This Court in para 10 in the case of Dwarka Cement Works Limited (supra).

19. It could very well be concluded that non-production of order of written consent or copy thereof alongwith filing of the criminal complaint would not constitute any fetter or hurdle on its maintainability. At the best, it could be said that it was a technical flaw or infirmity. Technical infirmity which is not fatal to the complaint could be removed at the later stage and such infirmity should not be allowed to be used by such industrialist as a weapon to dynamite the prosecution at the inception. It would be appropriate at this stage to refer to the following observations of the Apex Court in almost similar case in the case of V.P. Pollution Control Board v. Ms. Modi Distillery as follows:

7. It is regrettable that although Parliament enacted the Water (Prevention of Control & Pollution) Act, 1974 to meet the urgent need for introducing a comprehensive legislation with its established unitary agencies in the Centre and the States to provide for the prevention, abatement and control of pollution of rivers and streams, for maintaining or restoring wholesomeness of water courses and for controlling the existing and new discharges of domestic and industrial wastes, which is a matter of grave national concern, the manner in which some of the Boards are functioning leaves much to be desired. This is an instance where due to the sheer negligees on the part of the legal advisors in drafting the complaint a large business house is allowed to escape the consequences of the breaches committed by it of the provisions of the Act with impunity. It was excepted that the Board and its legal advisors should have drafted the complaint with greater circumspection not to leave any technical flaw which would invalidate the initiation of the prosecution allowing the respondents to escape the consequences of the breaches committed -by them of the provisions of the Act with impunity. As already stated, prior to the commencement of the Act the Company owned an Industrial unit styled as Messrs Modi Distillery which was discharging its trade effluents into the Kali River through the Kadrabad Drain and therefore the matter fell within the ambit of Section 26 of the Act. Section 26 provides that where immediately before the commencement of the Act any person was discharging any sewage or trade effluent into a stream, the provisions of Section 25 shall, so far as may be, apply to such person as they apply in relation to a person referred to in that Section. Section 25(1) creates an absolute prohibition against bringing into use any new or altered outlet for the discharge of sewage or trade effluent into a stream without the consent of the Board. On a combined reading of Sections 25(1) and 26 it was mandatory for the Company, viz., Messrs Modi Industries Limited to make an application to the Board under Sub-section (2) of Section 25 read with Section 26 in the prescribed form containing the prescribed particulars for grant of consent for the discharge of its trade effluents into the said stream, subject to such conditions as it may impose. Along with the complaint the appellant has placed on record several documents showing that the rejection of the application was in the public interest as it was incomplete in many respects These documents also reveal that the Company did not have proper arrangements for treatment of the highly polluted trade effluents discharged by it and although the appellant repeatedly by its letter required the Company to obtain the consent of the Board, the Company was intentionally and deliberately avoiding compliance of the requirements of Sections 25(1) and 26 of the Act. The contravention of these provisions is an offence punishable under Section 44. The other ten persons arrayed by names as accused in the complaint are respondents Nos. 2-11, the Chairman, Vice-Chairman, Managing Director and member of the Board of Directors of Messrs Modi Industries Limited. It cannot be doubted that in such capacity they were in-charge of and responsible for the conduct of the business of the Company and were therefore deemed to be guilty of the said offence and liable to be proceeded against and punished under Section 47 of the Act. It would be a travesty of justice if the big business house of Messrs Modi Industries Limited is allowed to defeat the prosecution launched and avoid facing the trial on a technical flaw which is not incurable for their alleged deliberate and wilful breach of the provisions contained in Sections 25(1) and 26 made punishable under Section 44 read with Section 47 of the Act.

It was also observed in the said case that technical flaw in a complaint, if any, could be allowed to be removed.

20. Learned Counsel for the respondent No. 1 has relied on the decision of the Supreme Court in the case of M.C. Mehta v. Union of India . In view of the aforesaid discussions and the relevant legal settings and the decision of the Supreme Court in M.C. Mehta's case (supra), it becomes apparent that the impugned order is justified and requires no interference. While summing up, it can be safely be concluded without any hesitation that mere non-production of written sanction as contemplated under the provisions of Section 49(1) of the Act alongwith filing of the complaint would not be fatal to the prosecution and, therefore, the conclusion reached by the trial Magistrate is required to be confirmed.

21. In the end, This Court is inclined to direct the learned trial Magistrate to accord top priority to this matter in view of the peculiar facts and circumstances and it being a prosecution under the pollution law and considering the observations made by the Apex Court in M.C. Mehta's case (supra), this revision application is required to be rejected. Hence, this revision application is rejected. Rule discharged. Interim relief stands vacated. The trial Court shall accord priority to this matter and dispose it of as early as possible and preferably within a period of 3 months from the date of receipt of writ of This Court.

22. At this stage, Learned Counsel for the petitioners states that the stay order granted in this revision may be extended for a further period of 6 weeks as the petitioners are inclined to take up this matter in the Supreme Court. Considering the facts and circumstances and observations made by This Court, this submission is without any substance and, therefore, it is rejected.