ORDER K.L. Shrivastava, J.

1. This revision petition is directed against the revisional order dated 2-5-1990 passed by the Ist Additional Sessions Judge, Ratlam in Criminal Revision No. 94 of 1988 whereby the order passed by the Chief Judical Magistrate, Ratlam dismissing the complaint Under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974 (for short 'the Act') has been set aside and the case has been remanded.

2. Circumstances giving rise to this revision petition are these : Shri V. G. Kale, Divisional Officer, on authority from the Chairman of the State Board, on 25-1-1988 filed a complaint Under Section 44 of the Act in the name of the State Board (vide Section 4 of the Act) in the Court of the Chief Judicial Magistrate, Ratlam against the petitioners. The petitioners objected that cognizance of the offence could not be taken in view of the provision in Section 49 of the Act which requires that the complaint has to be by the Board or with its written consent.

3. After hearing the parties, the learned Magistrate held that in view of the provision in Section 11A of the Act the Board could delegate its powers to the Chairman but the Chairman could not subdelegate the authority to the Divisional Officer in view of the Apex Court's decision in A. D. Roy's case, 1987(1) MPWN 67.

4. Admittedly the complaint was not filed with the written consent Of Board. In the circumstances the learned Magistrate dismissed the complaint.

5. The aforesaid order passed by the learned Magistrate was challenged in revision in the Court of Session, Ratlam. Before the revisional Court the non-applicant filed two documents; one dated 5-11-1980 and the other dated 22-7-1986. According to the first of them the Board has authorised the Chairman and the Member Secretary when authorised by the Chairman to institute proceedings in Court. By the second the Board has authorised Divisional Officers to institute proceedings on the written consent of the Board.

6. In the context of the aforesaid two documents the learned Additional Sessions Judge set aside the order passed by the learned Magistrate and remanded the case for disposal of the petitioners' objection after taking into consideration the aforesaid two documents.

7. The contention of the learned counsel for the petitioners is that the correctness, legality or propriety of the order impugned in revision ought to have been determined by the learned Addl. Sessions Judge on the material which the parties had placed before the learned Magistrate and the learned Judge erred in passing the order impugned in this revision in the light of the documents filed before him. According to the learned counsel law does not permit filling of gap or lacuna in the prosecution case.

8. On behalf of the petitioners it has further been urged that the delegation of authority to the Divisional Officers to institute proceedings under the Act in Courts to be valid could only be by the Board and not by the Chairman in view of the law laid down in A. K. Roy's case (supra).

9. The contention of the learned counsel for the non-applicant is that a combined reading of Section 399(1) and Section 401 _ of the Criminal Procedure Code, 1973 (for short 'the Code') shows that the revisional Court can, Under Section 391 ibid, take additional evidence and the impugned order is not amenable to interference in excercise of this Court's revisional jurisdiction.

10. The point for consideration is whether the revision petition deserves to be allowed.

11. Section 49 of the Act provides for cognizance of offences. The relevant provision in Sub-section (1) thereof reads as under : -

49. 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 authorised 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 authorised 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.

It may be pointed out that in the provision the legislature has employed negative language. In interpreting a similar provision in Section 20(1) of the Prevention of Food Adulteration Act, 1954, in the decision in A. K. Roy's case (supra) pointing out that the requirement is absolute it has been observed as under :

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all other modes of performance are necessarily forbidden. The intention of the Legislature in enacting Section 20(1) was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise".

12. Regarding delegation Section 11A of the Act provides that the Chairman of the Board shall 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. Section 12(2) ibid lays down that the Member Secretary shall 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 or its Chairman.

13. It may be pointed out that the document dated 22-8-1986 authorises the Divisional Officers to. institute proceedings in the Courts concerned only on the written consent of the Board and the authority by the Chairman to the Divisional Officer Shri Kale to file complaint Under Section 44 of the Act against the petitioners cannot be construed as written consent of the Board so as to constitute compliance with Section 49 of the Act.

14. Further Section 391 of the Code provides that if the Court thinks additional evidence to be necessary, it shall record its reasons and may either take such evidence itself, or direct it to be taken as thereunder provided. In the decision in Bir Singh and Ors. v. State of M. P., AIR 1978 SC 59, it has been held that the Court has no doubt power to take additional evidence in a suitable case yet the discretion should not be exercised to fill up the gaps and lacuna in the prosecution evidence. In the decision in State of Rajasthan v. Daulatram, AIR 1980 SC 1314, pointing out that the onus of proving its entire case is on the prosecution, it has been observed that it could not be allowed to fill up the gaps or lacuna left at the trial at the appellate or revisional stage.

15. In the instant case there in nothing to indicate that the learned A.S.J. thought it necessary to take the documents on record. The prosecution could have filed those documents in the Court of the learned C.J.M. and there is no explanation why this was not done. It was also open to the State Board as constituted Under Section 4 of the Act to file fresh complaint in order to avoid delay by reason of the objection raised by the petitioners as to the maintainability of the complaint.

16. As a result of the foregoing discussion the revision petition is allowed. The impugned order is set aside and the one passed by the learned Magistrate is restored.