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In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.277 of 2006
With
W.P.(Cr.) No.252 of 2006
Girdharilal Agarwal............... Petitioner [in W.P.(Cr) No.277 of 2006]
Manish Agarwal
@ Manish Chand Agarwal....Petitioner [in W.P.(Cr.) No.252 of 2006]
VERSUS
1. State of Jharkhand
2. Jharkhand State Pollution Control Board
through its Secretary
3. Superintendent of Police Singhbhum West
4. Officer-in-Charge, Noamundi....Respondents[in W.P.(Cr.)277/06]
1. State of Jharkhand
2.Jharkhand State Pollution Control Board
through its Chairman
3.Regional Officer, Jharkhand
State Pollution Control Board...Respondents [in W.P.(Cr.)252/06]
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners : Mr. Ananda Sen
For the State : Mr. R.R.Mishra, G.P.II
For the Respondent No.2: Mr. Mukesh Kumar
Reserved on 24.8.2009 Pronounced on 2.9.2009.
10. 2.9.09. Both the applications were heard together and are being disposed of by this common order as the question involved in both the cases is the same.
Extraordinary jurisdiction of this Court has been invoked for quashing the entire criminal case of Noamundi P.S. case no.47 of 2006 (G.R.No.502 of 2006) instituted under section 37 of the Air (Prevention & Control of Pollution) Act, 1981 (hereinafter referred to as 'the Act') pending in the court of Chief Judicial Magistrate, Chaibasa.
One Manikant Prasad, Regional Officer of Jharkhand State Pollution Control Board, lodged a First Information Report on 24.8.2006 alleging therein that on 23.8.2006 when he visited the industrial unit known as M/s. Salasar Metallic, Noamundi belonging to the petitioner, Manish Chand Agarwal, he found the unit in 2 working condition where iron ore was found stored, though the Board had never given any consent to establish the unit or the consent to operate the unit.
Further it has been alleged that when he visited the premises of industrial unit known as M/s. Keshri Balaji Minerals belonging to the petitioner, Girdharilal Agarwal, iron ore (Fines) was found stored over there and the unit was in working condition, though the Board had never given consent to operate the unit.
Thus both the accused persons as well as other persons, who were also found to have been operating industrial unit without consent of the Board have been alleged to have contravened the provision of Section 21 of the Act and as such, they are punishable under section 37 of the said Act.
The very institution of the case by the police as Noamundi P.S. case no.47 of 2006 has been challenged on the ground that as per the provision contained in Section 43 of he Act one can be prosecution under section 37 of the said Act only on a complaint made by a Board or any officer authorized in this behalf by it whereas instant application has been initiated on the basis of First Information Report.
Mr.Ananda Sen, learned counsel appearing for the petitioner submits that since in terms of Section 43 of the Act, cognizance of the offence under the Act can be taken only on a complaint made by a Board or any officer authorized in this behalf by it, launching of any prosecution for contravention of provision of the Act by way of First Information Report would vitiate the entire criminal proceeding.
In this regard it was pointed out that the Act is quite silent over the meaning of 'complaint' and therefore, in order to construe the meaning of 'complaint', one should resort to the provision of 3 the Code of Criminal Procedure where Section 2(d) defines 'complaint' which means any allegation made orally or in writing to a Magistrate, with a view to take action under the Code of Criminal Procedure and hence, prosecution can be launched only by way of complaint to a Magistrate and this proposition has been laid down by this Court in the context of the provision of Mines and Minerals (Development and Regulation ) Act, 1957, in a case of Manish Khemka vs. State of Jharkhand and others [ 2009(2) JLJR 720]. Thus, it was submitted that the entire criminal proceeding initiated on the basis of First Information Report is fit to be quashd.
On the other hand, it was submitted on behalf of the State as well as Pollution Control Board that offences alleged being cognizable, the police is quite competent to make investigation of the case as the Act nowhere puts a bar or restrict the police officer to institute or to investigate a case and, therefore, the submission advanced on behalf of the petitioner is not at all tenable.
In the context of the submission as well as allegation made against the petitioner that industrial units were established and were being run without there being consent of the Board, one needs to take provision of Section 37 which reads as follows:
37. "Failure to comply with the provisions of section 21 or section 22 or with the directions issued under section 31A - (1) whoever fails to comply with the provisions of section 21 or section 22 or directions issued under section 31A, shall, in respect of each such failure, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction of the first such failure. (2) If the failure referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine."
4
Cognizance of the aforesaid offence is taken in the manner as enshrined in Section 43 which reads as under:
43. "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 authorized 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 authorized 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.
(2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall on demand by such person, make available the relevant reports in its possession to that person :
Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest."
Since it has been stipulated that no courts shall take cognizance of any offence under the Act except on a 'complaint', submission was advanced that the police is not competent to register a first information report for commission of the offence under the Act. Admittedly, the word "complaint" has not been defined in the Act nor the Act does stipulate about the manner in which case would be instituted or investigated and in that event, sub-section (2) of Section 4 of the Code of Criminal Procedure would come into play which provides that all the offences under any other law are to be investigated, inquired into, tried or otherwise dealt with according to the Code of Criminal Procedure, subject to the provision contained in the special law regulating the manner or the place of investigation or inquiring into, trying or otherwise dealing with such offences.
5
I have already noticed that the offence alleged is punishable for six years and hence, as per Part II of Schedule I of the Code, any offence punishable with three years or more becomes a cognizable office. Once the offence alleged is cognizable, information of it if given to an Officer-in-Charge of a Police Station, he, as per the provision as contained in Section 154 of the Code of Criminal Procedure is obliged to reduce the same into writing. Sub- section (3) of Section 154 further obligates the police authorities to investigate the same as per the manner prescribed in subsequent section and thereafter submit its report to the Magistrate, who is empowered to take cognizance of the offence on police report under section 173 of the Code on completion of the investigation. Thus, in absence of any provision in the Act relating to institution, investigation, inquiring or trial or otherwise resorting to the provision of the Code of Criminal Procedure to deal with the matter relating to the investigation, inquiry and trial shall not be without jurisdiction.
Similar view, in the context of the similar situation though with respect to Electricity Act wherein Section 151 of the Electricity Act also stipulates that no court shall take cognizance except on complaint, has been expressed by the Delhi High Court in a case of Bimla Gupta vs State and another [136 (1007) Delhi Law Times 521] and also in a case of Sanjay vs. State decided by Delhi High Court in W.P.(Crl.) 582 of 2008 and Crl.M.A5393 of 2008 wherein it has been held that the offence being cognizable offence the police could register a First Information Report.
So far the case referred to on behalf of the petitioner is concerned, it is true that it has been held by me that any prosecution for contravention of Section 22 of the Mines and 6 Minerals (Development and Regulation) Act,1957 and also of Rule 8 of Jharkhand Minerals Dealers' Rule, 2007 launched by informant not by way of complaint but by way of information to the police is quite illegal but it has been held so presumably in the context of offence under that Act and Rule, being non-cognizable which the police has got no power to investigate without order of the Magistrate and not in the light of the discussion made above.
In that view of the matter, that decision is not helpful to the petitioner Under the circumstances, I do find and hold that the police is competent to register the case as the offence alleged is cognizable.
So far as question of taking cognizance of the offence is concerned, it be observed that the Magistrate can take cognizance of the offence on the basis of complaint of an authorized officer which may be filed along with the police report. Thus, both the applications being devoid of any merit are hereby dismissed.
(R.R.Prasad, J.) ND/