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Gujarat High Court Case Information System
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CR.MA/180520/2004 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1805 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA :
=======================================================
BALLARPUR
INDUSTRIES LTD., & 1 - Applicant(s)
Versus
MUKESH
SIDDHESHWAR SWARUP SHUKLA & 1 - Respondent(s)
=======================================================
Appearance :
MR
JR NANAVATI, SR. ADVOCATE FOR MR AR THACKER for
Applicants,
MR KH BAXI for Respondent(s) : 1,
MR AJ DESAI APP
for Respondent(s) :
2,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
Date
: 19/09/2008
ORAL
JUDGMENT
Heard learned Senior Advocate for the applicants, Mr.J.R. Nanavati for Mr.A.R. Thacker, learned counsel for the respondent no.1, Mr.K.H. Baxi and Learned Additional Public Prosecutor for the respondent no.2, Mr.A.J. Desai.
Against the Ballarpur Industries Ltd. and 10 others, complaint has been filed by the complainant before the Court of Learned Judicial Magistrate, First Class, Lalpur, District : Jamnagar on 07.10.1997 under Sections 43 and 44 of the Water (Prevention & Control of Pollution) Act, 1974 for the alleged breach of Sections 24 and 25 of the Act, which came to be registered as Criminal Case No.472/1997. The said complaint was filed by one M.S. Shukla, Deputy Environmental Engineer. In the said complaint, process was issued against all accused.
Against the same, the applicant-Company has preferred this application under Section 482 of the Code of Criminal Procedure for quashing the Criminal Case pending before the Court of Learned Learned Judicial Magistrate, First Class, Lalpur.
It has been mainly argued by the Learned Senior Advocate, Mr.Nanavati that powers for filing the complaint delegated by the Chairman to the said person are not just, legal and proper, for which, he has placed reliance upon the decision reported in Vol. XLIII (2) GLR 1580, more particularly, in para 10, which reads as under:-
?SEven if, sec.49(1)(a) and sec.11-A are read together, it can not be said that the legislature intended that the Chairman of a Board can exercise all powers and perform all duties from time to time without specific delegation made to him by the Board. Sec.49(1)(a) is clear enough, from which, it can be said that the complaint can be made firstly by a Board and secondly by any officer authorized in this behalf by the Board. Thus, filing of a complaint under this section can be made by the Board or by any officer authorized by the Board in this behalf. No specific authorization by the Board has been made under resolution dated 27-3-1984 to the Chairman for filing a complaint against any person committing offences under the Act. All that he is authorized under this resolution is power to sanction prosecution by the Chairman of the Board. Power to sanction prosecution is altogether different from power and authority to file complaint. Under this resolution, it is nowhere mentioned that the Chairman of the Board himself can file a complaint. If, the Chairman himself does not possess power to file complaint under a specific resolution from the Board, it is difficult to understand how he can delegate such power to another officer of the Board. In the absence of specific power delegated by the Board to the Chairman to file complaint or authorizing the Chairman to delegate power to file complaint to some other officer of the Board, no officer can file complaint, and in this view of the matter, the order dated 18-8-1989 Ex.31 can not be said to be valid delegation of power by the Chairman in favour of the Assistant Environmental Engineer of the Board. Even, under sec.11-A of the Act, 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. Thus, without delegation of powers by the Board, the Chairman can not exercise power to delegate the authority to file complaint to some other person. It is not within the general powers of the Chairman of the Board to exercise power of delegation to some other officer of the Board to file complaint.
It can be said that cognizance of an offence can be taken by a Court, firstly on a complaint filed by the Board, and secondly by an officer authorized by the Board to file a complaint. Since, there is no authorization by the Board in favour of the complainant to file a complaint, the cognizance taken by the learned Magistrate was illegal, as a consequence of which, the entire trial and exercise in appeal becomes illegal, inasmuch as, the prosecution structure collapsed for want of a complaint filed by a person duly authorized by the Board.??
Mr.Nanavati has also taken me through the minutes of the 43 meeting of the Board, copy of which is annexed with the application as Annexure-B at page no.17 and argued that the powers are only given to the Chairman. It is also argued that as held by this Hon'ble Court, no such powers are delegated to the complainant to file such complaint and it has been delegated to the Chairman. Thus, the present applicants are protected in view of the above referred judgment. It is, therefore, argued that the present application may be allowed and the complaint as well as proceedings issued therein may be quashed.
I have gone through the application, complaint annexed with the application and the judgment relied upon by the learned counsel for the applicants. I have also considered the arguments advanced by the learned counsel for the applicant. Looking to the facts and circumstances of the case and keeping in mind the ratio laid down in the judgment relied upon by the learned counsel for the applicants, I am of the opinion that complaint as well as process issued therein are required to be quashed and set aside.
It is required to be noted that the complaint has been filed against the Company, its Directors as well as office bearers numbering 11. However, out of them, though the accused no.1-Company and its Deputy Manager have filed the present application for quashing of the complaint, benefit is also required to be given to all other accused of the said complaint.
In view of the aforesaid facts and circumstances of the case, the present application is allowed. Criminal Case No.472/1997 pending in the Court of Learned Judicial Magistrate, First Class, Lalpur, District : Jamnagar and the process issued therein are hereby quashed and set aside. Rule made absolute to the aforesaid extent.
(R.P.DHOLAKIA, J) /patil Top