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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939
Crl.Rev.Pet.No. 293 of 2014
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AGAINST THE ORDER IN CC 105/2002 of J.M.F.C., KOLENCHERRY
DATED 07-12-2013
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REVISION PETITIONER(S)/ACCUSED 1, 5 AND 6 :-
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1. M/S PHILIPS CARBON BLACK LTD.
31, NETAJI SUBHASH ROAD, CALCUTTA - 700 001
WITH UNIT OFFICE AT 39/137 A,
KRISHNA SWAMI CROSS ROAD, COCHIN - 682 035 REPRESENTED BY
ITS MANAGER - FINANCE AND ACCOUNTS SAJEE VARGHESE
2. ROY CHAUDHARI
CHIEF EXECUTIVE ENVIRONMENT
M/S.PHILIPS CARBON BLACK LTD.,
KRISHNA SWAMI CROSS ROAD, COCHIN - 682 035.
3. V.R.MENON, MANAGER (POLLUTION CONTROL)
M/S.PHILIPS CARBON BLACK LTD.,
KARIMUGHAL, BRAHMAPURAM P.O., KOCHI - 682 303.
BY ADVS.SRI. S.SREEKUMAR (SR).
SRI P.MARTIN JOSEPH
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.SAJU WAHAB
RESPONDENT(S)/RESPONDENTS :-
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1. SABU THOZHUPPADAN, AGED 43 YEARS,
S/O.KURUVILLA, RESIDING AT THOZHUPPADAN HOUSE,
KARIMUGHAL, PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM, PIN - 682 308.
2. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY SRI.SABU THOZHUPPADAN, PARTY-IN-PERSON
R2 BY PUBLIC PROSECUTOR SMT.SREEJA.V.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
19-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.UBAID, J.
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Crl.R.P. No.293 of 2014
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Dated this the 19th day of February 2018
ORDER
The revision petitioners herein are the original accused Nos.1, 5 and 6 in C.C.No.105/2002 of the Judicial First Class Magistrate Court, Kolencherry. The case as against the others already stands quashed by this Court. C.C. No.105/2002 is a prosecution brought by the 1st respondent alleging violation of the provisions of the Air (Prevention and Control of Pollution) Act, 1981 (for short, 'the Act'). The 1 st accused is a private limited company, by name, M/s.Philips Carbon Black Limited, having a branch in Kerala, at Kochi, represented by the Managing Director. The 5th accused is the Chief Executive Officer of the Company, and the 6 th accused is the Manager (Pollution Control). At present, these three accused must be the accused Nos.1 to 3, when the case against the others stands quashed. The complaint of the 1st respondent in the court below is that the Company installed a machinery at the Company premises without obtaining the consent of the Pollution Control Board. The dispute is concerning only one portion of the Crl.R.P. No.293 of 2014 -: 2 :- business concern because the other two portions already stand closed down.
2. The court below conducted the required enquiry, and recorded the statements of the complainant and the witnesses. The available documents were also perused as part of the enquiry. On enquiry, the court below found a prima facie case against the accused, and accordingly, took cognizance under Section 37 read with Section 21 of the Act.
3. The accused appeared before the trial court and took part in the trial. After pre-trial evidence under Section 244 Cr.P.C., the trial court heard the parties on the question of framing charge. The accused pleaded for discharge on the ground that there is no material at all for a prosecution under the Act. On an examination of the materials produced in court, the trial court found that there are sufficient materials, prima facie, to frame charge against the accused, and accordingly, the trial court decided to frame charge appropriately as per the order dated 7.12.2013. The said order is under challenge in this revision.
4. The definite case of the revision petitioners is that they had actually obtained consent from the Pollution Control Board for installing the required machinery, and so, there cannot be a Crl.R.P. No.293 of 2014 -: 3 :- prosecution against them under Section 37 of the Act. What is punishable under Section 37 of the Act is failure to comply with the provisions of Section 21 or Section 22 of the Act, or the directions issued under Section 31(A) of the Act. In this case, what is practically alleged is non-compliance of Section 21 of the Act. Section 21 of the Act provides that, subject to the provisions of the Section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. The premises, where the Company is being run, stands already declared as a 'pollution control area' by the Government. So, the very short question for consideration is whether the revision petitioners had in fact obtained the consent of the Pollution Control Board for installing machinery there. If it is found that they installed the machinery with consent, there cannot be a prosecution. Any way, the complaint in this case was filed in February, 2002. The notice as required under Section 43 of the Act was issued by the complainant on 12.10.2001. The revision petitioners claim to have obtained consent of the Board on 9.10.2001, and it was extended till 31.12.2011 on 7.11.2001. It appears that the crucial documents were not produced in the trial court by the complainant or the accused. Before deciding to Crl.R.P. No.293 of 2014 -: 4 :- frame a charge on the basis of the pre-trial evidence adduced under Section 244 Cr.P.C., the trial court will have to examine all the relevant materials, including the documents covering the issue in dispute. Here, the material document must be the consent given by the Pollution Control Board, if there is a consent. If the revision petitioners had in fact obtained consent as on the date of filing of the complaint, and if the consent was in force at the time of adducing evidence, there cannot be a prosecution as alleged. Before this Court, the revision petitioners have produced a copy of the consent given by the Pollution Control Board. The details of the consent, and also the other materials connected with it will have to be examined by the trial court. In this proceeding, I am not inclined to examine those aspects. It is for the trial court to examine, and decide first, whether there are sufficient materials to frame a charge, and this decision must be on the basis of the relevant materials, including documents. Let the trial court examine the materials produced before this Court, including the consent obtained by the revision petitioners, and decide whether there is scope to frame a charge against the accused.
In the result, this revision petition is disposed of as follows :-
Crl.R.P. No.293 of 2014 -: 5 :-
(a) The impugned order of the court below dated 7.12.2013 will stand set aside, and the trial court is hereby directed to consider the issue afresh on the basis of all the relevant materials and documents.
(b) The revision petitioners will produce all the materials, including the consent obtained by them from the Board, in the trial court within three weeks.
(c) On a consideration of all the materials, the trial court will decide whether there is scope to frame a charge against the accused.
(d) The Registry will send back the records to the trial court, and the parties will make appearance before the trial court on 12.3.2018.
(e) The trial court is directed to take decision afresh within six weeks from 12.3.2018.
Sd/-
P.UBAID JUDGE Jvt/19.2.2018