MCRC No. 6233/2014

    Rakesh kumar Dhingra Vs. Madhya Pradesh Pollution
                 Control Board & Others
10.05.2016
       Shri Deepak       Khot, learned counsel for the
petitioner/accused.
       Shri Harish Dixit, learned counsel for the respondent

No.1.

None for the respondent No.2, which is a formal party in this petition.

Heard on the question of admission.

The petitioner/accused has filed this petition under Section 482 of Cr.P.C for quashing the entire proceedings of Criminal Case No. 7724/2008 pending before the Court of Judicial Magistrate First Class, Gwalior wherein the charge under Section 26 read with Section 44 of Water (Prevention and Control of Pollution) Act 1974, was framed against the petitioner on 08.11.2012.

Learned counsel for the petitioner submits that as per the contents of the criminal complaint, the alleged offence is not made out against the petitioner/accused. Hence, the said charge be quashed. Counsel further contends that earlier the charge under Section 25 read with Section 44 of the said Act was framed by the trial Court. The said charge was quashed by this Court vide order dated 04.05.2012 in M.Cr.C No. 2025/12. Learned counsel further argues that the observation made by this Court in earlier order dated 04.05.2012 has no significance in framing the charge against the petitioner under Section 26 read with Section 44 of the Act because this Court has issued direction to the trial Court to frame charge against the petitioner as per the provisions of law.

Learned counsel for the respondent opposing the submissions made on behalf of the petitioner, contended that the validity and propriety of the impugned order was MCRC No. 6233/2014 challenged by the petitioner before the Court of Sessions and the impugned order was confirmed vide order dated 19.04.2014 passed by the Additional Sessions Judge, Gwalior in Criminal Revision No. 08/2013. Apart from this, on perusal of the findings recorded by this Court in Para 10 to 13, it transpires that this Court has observed clearly that an offence under Section 26 read with Section 44 of the said Act is prima- facie made out against the petitioner/accused. The findings recorded by this Court in order dated 04.05.2012 had attained finality because the said findings were not challenged by the petitioner before the competent Court. Considering the said findings of this Court, the trial Court was bound to frame charge against the petitioner/accused under Section 26 read with Section 44 of the said Act. Therefore, no illegality has been committed by the learned trial Court as well as affirmed by the Revisional Court in framing the aforesaid charge against the petitioner. Therefore, this petition filed by the petitioner having no substance be dismissed.

Heard the arguments of both the parties.

On perusal of the order dated 04.05.2012 passed by this Court in MCRC No. 2025/12, it transpires that this Court has observed in Para 10 to 13 that an offence under Section 26 read with Section 44 of the said Act is prima-facie made out against the petitioner/accused, because of that, the charge framed against him under Section 25 read with Section 44 of the Act was quashed. The observation made by this Court in Para 10 to 13 reads as under :

10. Testing the factual matrix of the present case, on the anvil of the above principle, it is crystal clear that the allegations alleged by the Pollution Board were regarding offence defined MCRC No. 6233/2014 in Section 26 whereas the charge has been framed under Section 25 (1). The requirements of the prosecution to establish the offences defined under Section 26 on one hand and 25 (1) on other hand, are distinct, as the basic ingredient forming the offences under both the above said sections require different set of evidence to establish and correspondingly different defence of accused.

11. Thus framing of charge under Section 25 (1) read with Section 44 Act of the Water Pollution and Control Act, 1974 can not be countenanced in law.

12. Thus prima facie view arising from the material available reflects a prima facie case under Section 26 and not under Section 25 (1) as alleged.

13. Pertinently though the contravention in the impugned charge shown to be of Section 25 (1) the Act of 1974 which is incorrect in view of the findings recorded herein above as the allegations and evidence recorded, disclose contravention of Section 26 of the Act of 1974, but since the penal provision of Section 44 is common for both the Sections, this Court deems it appropriate that this Miscellaneous Criminal Case is disposed of with following directions :-

1. The impugned charge dated 12.10.2011 and Criminal Case No. 7724/2008 is set-aside.

2. The decision rendered by the trial Court dated 12.10.2011 taking cognizance of the offence along with the Revisional order dated 08.02.2012 the Criminal Revision 538/2011 are set-aside.

3. The trial Court directed to frame charge under the appropriate provision on the basis of complaint and the evidence adduced in support thereof and proceed ahead with the trial Court"

Indisputably the legality and propriety of the observation made by this Court was not challenged by the petitioner before MCRC No. 6233/2014 any competent Court. In this manner the said findings had attained finality. The submission of the petitioner to the effect that the said observations are not binding on the trial Court to frame charge, does not appear to be sound. Once the observation has been specifically made by this Court, the trial Court is bound to accept the findings and to frame charge against the petitioner. In this manner the trial Court has not committed any error in framing the charge against the petitioner as stated earlier.

Earlier petition filed by the petitioner under Section 482 of Cr.P.C was disposed of by this Court with the observation made in the order. Therefore, this Court does not deems it fit to interfere in the impugned order as well as affirmed by Revisional Court as stated earlier in invoking the extraordinary jurisdiction of Section 482 of Cr.P.C.

On perusal of the record, it is also evident that the statement of the witnesses have been recorded earlier and almost the trial was completed, at this stage, the charge was amended. In the said circumstances, it can be inferred that the trial is likely to be completed.

Therefore, the petition being merit-less is hereby dismissed with the observation that the trial Court will not influence the observation made by this Court or by the earlier order, at the stage of deciding the case on merit.

The effect of the interim order dated 05.05.2015 is hereby vacated.

Copy of the order be sent to the trial Court immediately.

(M.K.Mudgal) Judge Aman