IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3339 of 2009()


1. M/S. PHILIPS CARBON BLACK LTD.,
                      ...  Petitioner
2. ROY CHAUDHARI,
3. V.R. MENON, MANAGER (POLLUTION CONTROL)

                        Vs



1. SABU THOZHUPPADAN, S/O. KURUVILA,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.S.SREEKUMAR

                For Respondent  :SRI.BABU KARUKAPADATH

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :28/03/2011

 O R D E R
                         V.K.MOHANAN,J.
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                     Crl.R.P.No. 3339 of 2009
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             Dated this the 28th day of March,2011

                               O R D E R

The revision petitioners are accused Nos.1,5 and 6 in C.C.No.105 of 2002 pending before the Judicial First Class Magistrate Court, Kolencherry, which is a case instituted upon a private complaint preferred by the first respondent herein. The challenge in this revision petition is against the order dated 19.9.2009 of the above court by which the learned Magistrate has found that the complainant had succeeded in making out a prima facie complaint against the present revision petitioners and the case would be proceeded against them. The complaint is filed under Section 43(b) of the Air (Prevention and Control of Pollution) Act,1981 (for short 'the Act'). Hence this Criminal Revision Petition.

2. The allegation in the complaint, which is produced along with this Crl.R.P. as Annexure-I, is that the complainant is a resident of the locality in which the first accused/company is  Crl.R.P.No.3339 of 2009 :-2-:

situating and functioning under the provisions of the above Act. The product of the company is carbon black, which is generally used as raw materials for the manufacture of tyres, batteries etc. According to the allegation, the first accused/company, in violation of Sections 21 and 31A of the Act, established and operated Line III. According to the complainant, the Line III was established and operated without obtaining prior consent from the Kerala State Pollution Control Board (hereinafter referred to for short as 'Board') and because of the absence of sufficient safety measures, there were emissions of carbon which adversely affected the health of the local people. Thus, the crux of the allegation is that since Line III was established and operated without obtaining prior consent and in violation of the direction issued by the Board, Sections 21 and 31 of the Act are attracted and thereby the accused,19 in numbers, have committed the offence punishable under Section 37 of the Act.

3. When cognizance was taken, on the basis of the above  Crl.R.P.No.3339 of 2009 :-3-:

complaint and C.C.No.105 of 2002 was instituted in the trial court, initially the accused therein including the revision petitioners preferred two Crl.M.Cs. before this Court. Crl.M.C.No.3608 of 2002 is filed by accused Nos.1 to 3 and 14. Accused Nos.4 to 13 and 15 to 19 preferred Crl.M.C.No.4462 of 2002, challenging Annexure-I complaint and the proceedings of the learned Magistrate taking cognizance and also against all the proceedings in C.C.No.105 of 2002. This Court by Annexure XIII common order dated 1.3.2004 disposed of the above Crl.M.Cs. With the following directions:-

"(1) All proceedings against the accused, except accused Nos.1,5 and 6, in CC No.105/2002, on the file of the Judicial First Class Magistrate Court, Kolenchery, are quashed.

(2) The Member Secretary, Kerala State Pollution Control Board, shall produce all the relevant records in his possession, as would be demanded by the Magistrate, before the court below, for the purpose of establishing the violation of the provisions under Section 21 and 31A of the Act.

(3) On receipt of the same, the Magistrate  Crl.R.P.No.3339 of 2009 :-4-:

shall hear both sides, and find out, whether there is any prima facie case made out for the violation of the provisions of the Act, and therefore, these accused are to be proceeded under Section 37 of the Act. On finding the same, he shall proceed in accordance with law, against these accused, accused Nos.1,5 and 6.

            (4)    If an application is moved by the
               accused   for    exempting     them   from
               personal appearance, that be granted,

considering their necessity to be present in the company for work or for other avocations, as would be sought by them.

The accused shall be present in court as and when their presence is legally required for the disposal of the case."

Thus, it can be seen that, this Court by the above judgment, quashed all the proceedings against the accused in C.C.No.105 of 2002 except accused Nos.1,5 and 6 who are the revision petitioners herein. Thereafter, the learned Magistrate, in the light of the direction issued by this Court, as per the above common judgment, considered the entire matter afresh and issued the impugned order dated 19.9.2009 in C.C.No.105 of 2002 and decided to proceed against the revision petitioners. It is the above order challenged in  Crl.R.P.No.3339 of 2009 :-5-:

this Crl.R.P.

4. I have heard Sri.S.Sreekumar, learned counsel appearing for the revision petitioners and Advocate Sri. Sabu Thozhuppadan, who is the first respondent herein, in his personal capacity.

5. On hearing the arguments of counsel for the revision petitioners and the first respondent, it appears to me that though the learned Magistrate has referred to several proceedings and documents issued by the Board as well as the District Collector and though the learned Magistrate came to a conclusion that the averments in the complaint as well as the documents produced on behalf of the complainant itself are sufficient to make out a prima facie case against the accused that they have violated the orders and directions given by the Board on 20.7.2001, by which the accused were directed to stop the manufacturing operations and process of the first accused/company within 48 hours from the time of receipt of the order, I am of the view that the learned Magistrate miserably failed to consider certain relevant and material  Crl.R.P.No.3339 of 2009 :-6-:

documents, especially in terms of the direction issued by this Court while issuing Annexure XIII order.

6. Learned counsel for the revision petitioners vehemently submitted that had the learned Magistrate considered the entire documents, the learned Magistrate would not have passed an order like the impugned one. The first respondent, on the other hand, submitted that Line III was established and operated without prior sanction of the Board and the complaint is pending before the trial court for the last nine years and there is no progress because of the persistent interference of the accused by way of resorting to unnecessary legal proceedings. According to the first respondent, the learned Magistrate is perfectly justified in her order because the documents produced by the complainant and the averments therein fully disclosed the offence alleged against the revision petitioners/accused.

7. The case of the complainant is that the revision petitioners/accused established Line III without obtaining prior  Crl.R.P.No.3339 of 2009 :-7-:

consent from the Board and they have operated Line III without obtaining prior consent for the same from the Board. It is also the submission of the first respondent that when the officials of the Board conducted surprise inspection on 5.4.2001, they found that the installation of Line III was in progress, but the same was done unauthorisedly. Learned counsel for the revision petitioners submitted that the Board, after inspection on 5.4.2001, issued an order No.PCB/AZU/71/84 dated 7.4.2001, directing the company to stop all activities in connection with the unauthorised expansion and thereafter, the Board issued Annexure II order dated 21.7.2001 direction for closure. According to the revision petitioners, in pursuance of Annexure-II order- the direction for closure and in pursuance of the discussion with the Officials of the Board on 23.7.2001, the company made an undertaking dated 25.7.2001, a copy of which is produced as Annexure-III before the Board. It is the specific case of the revision petitioners that on furnishing Annexure III undertaking, the Pollution Control Board issued  Crl.R.P.No.3339 of 2009 :-8-:

Annexure IV order which reads as follows:-

"In consideration of the undertaking given by the Chief of Operations, Philips Carbon Black Ltd., Kochi 682303 vide ref. cited third and subject to satisfactory compliance by the industry therewith, the direction issued vide ref.1 that "all manufacturing operations and processes in the factory are to be closed down within 48 hours of service of this direction" is kept in abeyance for four months."

(emphasis supplied) So, according to the learned counsel, in the light of the above proceedings, it cannot be said that the petitioners have committed any of the offence as alleged against them, but the learned Magistrate miserably failed to consider the above documents. It is also the submission of the learned counsel for the petitioners that the Division Bench of this Court gave green signal and thus, the installation was ratified by the decision of this Court in the writ proceedings.

8. According to me, the above submission of the learned counsel for the revision petitioners and the submission of the first  Crl.R.P.No.3339 of 2009 :-9-:

respondent has got some force. After the consideration of several other facts, in paragraph 15 of the impugned order, the learned Magistrate came to a conclusion that the petitioner has made out a prima facie case against the accused that they have violated the orders and direction given by the Kerala State Pollution Control Board on 20.7.2001, with a direction to stop the manufacturing operations and process of the first accused/company on the expiry of 48 hours. It appears that the learned Magistrate miserably failed to consider the documents viz., Annexure III undertaking dated 25.7.2001 and Annexure IV order dated 25.7.2001 issued by the Pollution Control Board, though the learned Magistrate had referred to Anenxure II direction for closure dated 21.7.2001. At present, this Court is not in a position to say what would have been the findings of the trial court, had the trial court considered the above documents in detail. I am not making any observation or findings regarding the merit of the discussion and findings arrived at by the learned Magistrate in the impugned order. Though I  Crl.R.P.No.3339 of 2009 :-10-:

have repeatedly gone through the detailed discussion contained in paragraph 14 of the impugned order, I failed to see any reference of the learned Magistrate with respect to the above mentioned documents, in spite of the fact that the Pollution Control Board, in terms of the order issued by the learned Magistrate, produced 13 documents before the learned Magistrate by filing a memo dated 22.12.2006. The documents, which I referred to above, covers the document Nos.IX to XII in the above memo. A copy of the memo is produced along with the counter affidavit of the first respondent as Annexure R1(a). Thus, the above documents are available before the learned Magistrate, but the same were not considered while issuing the impugned order. Therefore, it is just and proper to direct the learned Magistrate to consider document Nos.IX to XII produced before her as per Annexure R1(a) memo and to pass fresh orders in terms of the direction issued by this Court as per the above indicated common order of this Court. It goes without saying that the learned Magistrate will ensure that she will consider  Crl.R.P.No.3339 of 2009 :-11-:

the averment and contention of the first respondent that Line III was established and operated without prior consent of the Board.

In the result, this Criminal Revision Petition is disposed of setting aside the order dated 19.9.2009 in C.C.No.105 of 2002 of the court of the Judicial First Class Magistrate, Kolencherry and remitting the matter back to the trial court for fresh consideration of the entire matter and to pass fresh orders after referring to all the documents now available with the learned Magistrate as evidenced by Annexure.R1(a) memo particularly document Nos.IX to XII mentioned therein, after hearing the revision petitioners as well as the complainant. It is made clear that the impugned order is set aside only for the limited purpose of enabling the learned Magistrate to pass fresh orders as directed above and it is further made clear that if the learned Magistrate, after considering the documents which are directed to be considered, is of the opinion that a prima facie case is made out against the accused and there are grounds to proceed against the accused on the basis of  Crl.R.P.No.3339 of 2009 :-12-:

Annexure -1 complaint and the documents which are already produced and particularly referred above, the learned Magistrate is free to come to the same finding as that of the impugned order notwithstanding the fact that the said order is set aside by this Court and the learned Magistrate is directed to pass appropriate orders untrammelled by any of the observations or findings that contained in this order. Since the above Calendar Case is pending before the trial court for the last nine years, the learned Magistrate is directed to expedite the proceedings and to pass orders as expeditiously as possible, at any rate within three months from 2.4.2011 on which date, the petitioners are directed to appear before the learned Magistrate for framing of charge. The learned Magistrate is also directed to postpone the framing of charge till the passing of fresh orders as directed above.

V.K.MOHANAN, Judge.

MBS/  Crl.R.P.No.3339 of 2009 :-13-: