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HIGH COURT OF MADHYA PRADESH; JABALPUR
M.Cr.C No.7663/2019
M/s. Baderiya Dairy Farm and another
Vs.
M.P. Pollution Control Board
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Present : Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
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Name of counsel for the parties:
Shri Umashankar Rawat, counsel for applicants.
None for the respondent
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ORDER
(Delivered on 16.05.2019)
1. Petitioners have filed this petition for invoking the inherent powers envisaged under Section 482 of Cr.P.C., and pray to set aside the order dated 12.12.2018 whereby the learned trial Court JMFC, Jabalpur in complaint case No.1418/2017, framed the charges against the applicants under Sections 41, 43 and 44 of the Water (Prevention and Control of Pollution) Act 1974.
2. Facts giving rise to this petition, in short are that, respondent filed a complaint against the applicants before the Court of JMFC, Jabalpur under Section 200 of Cr.P.C., for the offence punishable under Sections 41, 43 and 44 of the Water (Prevention and Control of Pollution) Act 1974 (hereinafter in short 'the Act') and during trial examined witnesses T.S. Banerjee, (PW-1) Scientist, Regional Office, M.P. Pollution Control Board and R.P. Tiwari, (PW-2) Sampler, Regional Office, M.P. Pollution Control 2 Board also filed a documents along with complaint.
3. The fact alleged in the complaint in short are that the applicant No.1 Ms. Baderiya Dairy Farm situated at village Imaliya, Katni Road, Jabalpur and dealing with the dairy products and applicant No.2 is the Director of that unit to look after all functions and business and being a Director having control over the unit. When respondent was informed that in the unit of applicant No.1 a polluted water was not treating properly and there is no arrangement for treating the polluted effluent water, then the respondent send show cause notice to the applicants. The applicants replied that notice and stated that there is no question of treatment of polluted water and there is no need for treatment of that water. The complainant send a notice to close the unit and made arrangement for treatment of polluted effluent and inspected the premises on 28.10.2017 and prepared the sample of effluent and it was send for chemical analysis. After receiving the report of chemical analysis, send the report to the applicants. During inspection, it was found that in the unit of applicant No.1 effluent water was polluted. There was no sewage treatment plant and the polluted effluent is mixed in the water of the river. The respondent send a notice under Section 33 (A) of the Act of 1974 to close the unit immediately. The respondent no.2 who is looking after the function of the Unit was equally responsible for that act, then the complainant filed a complaint against 3 both the applicants. The complainant stated therein that the applicants have not complied Sections 24, 25, 26 and 33 (A) of the aforesaid Act 1974 and pray to punish the applicants under Sections 4, 44 and 41 of the Act of 1974.
4. Learned trial Court after hearing both the parties framed the charges against the applicants vide order dated 12.12.2018 for the offence punishable under Sections 44 and 43 of the Act of 1974 and recorded the plea of applicants.
5. Being aggrieved by that order, the applicants filed this petition on the ground that the whole inspection proceedings conducted before Sharad Kumar Baderiya and all sample proceeding conducted in presence of Sharad Kumar Baderiya, he is not representative of the applicant No.1. The real representative is Mr. Sunil Baderiya, who was not present at the time of inspection. He neither signed any documents nor any sample was taken in his presence. The applicant No.2 has wrongly been implicated as an accused. Mr. Sharad Kumar Baderiya, is not the representative of the applicant No.1, but complaint was filed against the representative of the applicant No.1 Mr. Sunil Baderiya. Mr. Sharad Kumar Baderiya neither owner of the applicant No.1 nor representative of diary plant. The whole inspection and sampling conducted by the respondent is in contravention of the law as laid down in the Act of 1974 and the rules thereto. Learned trial Court has not 4 paid any attention towards this fact. The applicant No.2 is liable to be discharged but instead of discharging him, framed the charge against him and pray for quashment of the charge framed against the applicants.
6. Counsel appeared for the applicants submit that the applicants have filed a written argument before the trial Court, but the learned trial Court has not appreciated the arguments properly and pray to set aside the impugned order and discharge the applicants.
7. None present for the respondent.
8. After hearing the counsel of the applicant, perused the documents filed along with this petition.
9. It is not disputed that applicant No.1 M/s Baderiya Dairy Farm situated at village Imaliya, Katni Road, Jabalpur, is arrayed as an accused no.1. The question before this Court raised by the counsel for the applicants that Mr. Sharad Baderia is no one to look after the affairs of the applicant No.1. Neither he is representative nor he is owner of the applicant No.1. The whole proceedings were conducted before Sharad Kumar Baderiya whereas Director of the applicant No.1 is Sunil Baderiya who is looking after of dairy farm. Nothing has been conducted by the respondent before him and trial Court has not considered this fact while framing the charge.
10. Perused the complaint dated 13.10.2017 (Annexure-P-2). In this complaint it is alleged in para 7 that respondent send a notice dated 5 16.07.2014 and it was replied by letter dated 13.08.2014 by the applicant No.1. Copy of the notice dated 16.07.2014 is annexed along with this petition, perused. It was sent by the Regional Office, M.P. Pollution Control Board addressed to M/s. Sunil Baderiya, Director. It is received by both the applicants and both the applicants replied the notice on 13.04.2014. Copy of that reply is annexed at page no.27. These documents reflected that applicant No.1 is unit dealing with the dairy products and when the Regional Office of respondent found that there was no treatment of the effluent water, he sent notice to applicant No.1 and he replied that notice. In the complaint, this fact is also mentioned that after receiving the reply and assessment of the reply, the respondent again sent a letter on 01.08.2016 to the applicant No.1 under Section 33-A of the Act of 1974 and thereafter, the team of respondent conducted the inspection on 20.10.2017. This all reveals that there was some effluent water which was polluted and the notice was sent to the applicant No.1, but on the date of inspection i.e. on 28.10.2017 instead of Mr. Sunil Baderiya one Mr. Sharad Kumar Baderiya was present in the campus of the applicant No.1. No doubt, Mr. Sunil Baderiya, was not present on the date of inspection i.e. on 28.10.2017, but another person Mr. Sharad Kumar Baderiya was present and who is that person, is to be explained by the applicant No.1 and not by the respondent because Mr. Sharad Kumar Baderiya was present in the premises of 6 applicant No.1. No doubt, he was not the Director, but he signed on behalf of applicant No.1 and sampling of polluted effluent conducted in presence of Mr. Sharad Kumar Baderiya. When it was sent for the chemical examination, it was found polluted. No doubt, there is prima facie material available with the record to proceed against the applicant No.1. Whether Mr. Sharad Kumar Baderiya is representative of the applicant No.1 or not, it is to be decided during trial. This Court at the time of invoking the inherent powers should not decide the trial on merits
11. Perused the written arguments filed along with this petition. This written argument was filed by both the applicants before the Court of JMFC. This argument is mainly based on that Sunil Baderiya applicant No.2 is Director but all proceedings conducted before Sharad Kumar Baderiya, who has not been arrayed as an accused and second part of the argument is that Sharad Kumar Baderiya is neither representative of the Company nor any person who look after the affairs of the Company hence, Sunil Baderiya is not liable to be made party.
12. Perused the complaint. Sunil Baderiya is made a party being Director of the applicant No.1. Until and unless it is proved that being Director he is not looking after affairs of the Company, the Director is equally responsible for the act committed by the Company. Learned trial Court vide order dated 12.12.2018 considered the whole allegations 7 raised by the applicants before the trial Court and after considering all the allegations and objections proceeded to frame charge against the applicants. The powers envisaged under Section 482 of Cr.P.C., for invoking the inherent powers should be exercised sparingly in the condition of rarest in rare case. There is sufficient prima facie material available against the applicants. There is no need to quash the complaint. Learned counsel for the applicants during arguments has drawn the attention of this Court in the case of State of Haryana & Ors. Vs. Ch. Bhajanlal & ors. [AIR 1992 SC 604] Apex Court has culled out some important points for quashing of the FIR or complaint, as under:-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, 8 accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absured and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the on concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
13. This Court after considering the case law in the case of Ch. Bhajanlal & ors. (supra) find that in this situation category 1 and 2 of the case is relevant.
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14. On the basis of foregoing discussions, this Court find that the case of the applicants is not falls in any category as discussed in the abovementioned case law Ch. Bhajanlal & ors. (supra). Consequently, this Court does not find any merit for invoking the powers envisaged under Section 482 of Cr.P.C. Hence, this petition deserves to be and is hereby dismissed.
(Vishnu Pratap Singh Chauhan) Judge pb Digitally signed by PRASHANT BAGJILEWALE Date: 2019.05.16 17:58:55 +05'30'