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CRM-M No.5743 of 2013 -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.5743 of 2013.
Date of decision : December 21, 2013
M/s Ashoka Stone Crushing Company
...... Petitioner
Versus
The State of Haryana
...... Respondent
CORAM : HON'BLE MR.JUSTICE AMOL RATTAN SINGH
***
Present : Mr. Hemant Saini, Advocate,
for the petitioner.
Mr. G.S. Sandhu, A.A.G. Haryana.
***
AMOL RATTAN SINGH, J.
1. This petition, invoking Section 482 of the Code of Criminal Procedure, seeks quashing of FIR No.25 dated 22.1.2013, registered at Police Station, Khaidki Daula, Tehsil and District Gurgaon, with regard to an offence punishable under Section 188 of the Indian Penal Code and all consequential proceedings arising therefrom.
A prayer for interim order of stay of proceedings has also been made.
2. At the outset, Section 188 of the Indian Penal Code is reproduced hereinunder :-
S.188. "Whoever, knowing that, by an order promulgated Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:2:- by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
Explanation: - It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
3. Thus the above provision provides for punishment for violation of an order promulgated by a public servant.
4. The allegation in the FIR, registered at the instance of The Assistant Mining Engineer, Gurgaon, is that, vide order of this Court (a Division Bench), dated 2.8.2012, the closure of operation of the petitioners' Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:3:- stone crusher had been directed. The complaint further states that in view of the above, the Director Mines and Geology, Haryana, had, vide order dated 29.8.2012, cancelled the application of the petitioner for grant of licence also.
5. On 21.1.2013, the checking staff of the Assistant Mining Engineers' Office submitted a report, that the petitioner has again started crushing activities, in violation of the Haryana Regulation and Control of Crushers Act, 1991. Thus the order of the Division Bench, dated 2.8.2012 (Annexure P-2 with the petition), had been violated.
6. Consequently, the complainant requested for registration of an FIR, upon which the police made out an offence under Section 188 of the IPC, as also, (without mentioning the specific provision) of the Haryana Regulations and Control of Crushers Act, 1991.
7. Mr. Hemant Saini, learned counsel for the petitioner, on 12.08.2013, had submitted that the same Division Bench, as had passed the order dated 2.8.2012 in CWP No.19634 of 2010, had also, while dismissing the petition filed by the petitioner (CWP No.18708 of 2012), on 20.09.2012, granted liberty to the petitioner to file an appeal against the order impugned in that petition. That order was the same one as was referred to in the FIR, "cancelling the application for grant of licence to the crusher". He had further submitted that the Appellate Authority {Appellate Authority under the water (Prevention and Control of Pollution) Act, 1974, AIR (Prevention and Control of Pollution) Act, 1981 and Bio Medical Wate (Management and Handling) Rules, 1988}, vide order dated 17.10.2012, had stayed operation of the said order and had specifically allowed the unit to run. A copy of the said order of the Appellate Authority is also annexed with the Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:4:- petition as Annexure P-4.
The argument, therefore, was that when the unit itself had been allowed to run by a competent authority, there was no question of any disobedience to an order. However, Mr. Saini further submitted that an assurance had been given to the Division Bench, in CWP No.19634 of 2010, on 31.1.2013, that despite the permission given by the Appellate Authority, the crusher would not function and, consequently, it was not functioning even now.
8. He had further submitted that there was also no violation of any provision of the Environment Protection Act and that the Special Environment Court had specifically exonerated the proprietor of the petitioner-firm, of any violation of the Indian Forest Act, vide its judgment dated 25.07.2012 (Annexure P-5).
9. In view of the above contentions, not refuted by the State, coercive action against the petitioner had been stayed by this Court, pursuant to the FIR registered.
10. At the time of final arguments, Mr. Saini had again reiterated the above, as also the contents of the pleadings which are, in essence, the same as what has been noted above and further state that, in any case, any violation of the High Court order dated 2.8.2012 was only on account of a misinterpretation / misunderstanding, as the Appellate Authority had specifically allowed the petitioner to run its stone crusher, vide order dated 17.10.2012. Thus, the running of the crusher could not be treated to be a violation of any order duly promulgated, so as to attract Section 188 of the IPC.
11. In the reply filed on behalf of the respondent-State, it has been Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:5:- stated that, firstly, the petitioner was in violation of the order of the Division Bench and secondly, since there is no licence issued to the petitioner to run a stone crusher, he was in violation of statutory requirements and consequently, for both these reasons, the FIR was registered.
12. It has also been stated that the licence was not issued because, as per the Haryana Regulation Control of Stone Crushers Rules 1992, a no objection certificate was required to be obtained by the petitioner from the Haryana State Pollution Control Board, which had not been so obtained.
13. At the outset, the question would be as to whether the FIR itself is maintainable or not.
14. Section 195(1)(a)(i) places a bar on any Court to take cognizance of any offence punishable under Sections 172 to 188 of the IPC (both inclusive), except on the complaint in writing of the public servant concerned, or of some public servant to whom he is administratively subordinate.
15. In the present case, no doubt, the complaint is made by the Assistant Mining Engineer, who is a public servant subordinate to the Director of Mines and Geology, who had issued the order dated 29.8.2012.
However, Mr. Saini has placed reliance upon a Division Bench Judgment of this Court in the case of Jeevan Kumar vs. State of Punjab and Ors. reported in 2008(2) PLR, 675, wherein it was held, in Para No.8 thereof, that:-
...... "in other words no FIR can be registered by the Police. It would not be open to the Police to register a case against the offender for offence punishable under Section 188 IPC and then to submit a report under Section 173 of the Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:6:- Code to the concerned Court".
The Division Bench had agreed with a earlier Single Bench Judgment of this Court in that regard, passed in Jagtar Singh vs. Union Territory, Chandigarh (1996) (1) R.C.R. (Criminal) 669, wherein it was held that Section 195(1) of the Code "does not contemplate investigation in a normal way by the Police and filing of the challan, but the complaint has to be presented directly to the concerned Court".
16. Thus, it is obvious that the complaint itself was made in a wrong forum (Police), which has been held to be debarred from taking cognizance of an offence punishable under Section 188 IPC. As such, the FIR is not maintainable and thus necessarily has to be quashed.
However, I shall proceed to discuss the issue on merits also, as to whether an offence under Section 188, IPC, or even under Haryana Regulation of Crushers Act, 1991, in the circumstances, is made out.
17. Since the reply of the respondent State, as also the FIR itself, give a two fold reason for invoking Section 188 IPC, let us examine each reason, qua the initiation of proceedings under Section 188, against the petitioner.
18. As regards the order of the Division Bench dated 2.8.2012 (Annexure P-2), it categorically directed the petitioner, who was respondent No.7 in that petition, along with two more stone crushers, to stop operation on that date itself. The Director Mines and Geology, Haryana, was also directed to take a final decision on the pending application (for grant of licence), of respondents No.7 to 9 in that petition, within 3 days.
19. That license not having been granted and the stone crusher having been directed to stop operations, a petition bearing CWP No.18708 Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:7:- of 2012 was filed by the petitioner and the other two stone crushers, taking shelter of the order of the Special Environment Court, Faridabad, dated 25.7.2012, to say that they were not in violation of any Environment Act and, as such, could not have been refused a licence.
20. As already stated earlier, that petition was dismissed with liberty to avail of the remedy of appeal. The Appellate Court having specifically allowed the petitioner to run its stone crusher vide order dated 17.10.2012, obviously the petitioner was not in disobedience of the order of a public servant, i.e. Director Mines & Geology, so as to come within the purview of Section 188 IPC.
21. Could he, therefore, be held to be in violation of the said provision, on account of violation of the order of this Court dated 12.08.2012?
22. In my opinion that also cannot be so, for the same reason as has been noticed above. It is obvious that the Division Bench of this Court had allowed the petitioner to approach the Appellate Authority against the order passed subsequent to 2.8.2012, i.e. the order dated 29.8.2012 of the Director, Mines & Geology, and the Appellate Authority had allowed the petitioner to run the unit. It was only on January 31, 2013, thereafter, that an assurance was given to the Division Bench, that despite the order of the Appellate Authority, the crusher would not run, which order, admittedly, is not being violated.
23. Thus, Section 188 IPC could not have been invoked against the petitioner, for alleged violation of the order of the Division Bench, dated 2.8.2012, in the above given circumstances.
24. Secondly, as regards the order dated 29.08.2012 being violated, Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:8:- obviously there is no violation thereof also, in view of the stay of that order, specifically, by the Appellate Authority.
25. On the same analogy, there cannot be any violation of the provisions of the Haryana Regulation of Crushers Act, 1991, due to non- obtaining of a licence, at least between 17.10.2012 and 31.1.2013, as the order of the Appellate Authority, allowing the unit to run, remained in operation till an assurance was given before the Division Bench that, despite the said order, the unit would not run.
26. In view of the above, this petition is allowed and FIR No.25 dated 22.01.2013, registered for the alleged commission of offences punishable under Section 188 of the IPC and under the provisions of the Haryana Regulation and Control of Crushers Act, 1991, registered at Police Station Khaidki Daula, Tehsil and District Gurgaon, along with all consequential proceedings arising therefrom, is hereby quashed.
27. However, allowing of the petition, even holding that on merits the petitioner is not in violation of the Haryana Regulation Control of Crushers Act, 1991 or Section 188 IPC, will not be construed to mean that the petitioner can operate its crushing unit, either without proper licences and permissions as are required by any provisions of law, or in contravention of any judicial order.
The above observations are given in view of the fact that the running of the petitioners' unit after 2.8.2012, up-till 31.1.2013, was obviously only in view of the stay granted to it by the "Appellate Authority under the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution)Act, 1981 and Bio Medical Waste (Management and Handling) Rules, 1988".
Sorot Gaurav 2014.01.14 14:24 I attest to the accuracy and integrity of this document CRM-M No.5743 of 2013 -:9:- For future running of the unit, obviously the petitioner would be bound by the order dated 31.01.2013 and any subsequent order of the Division Bench and by all statutory requirements which are required to be complied with, for running of stone crushers.
( AMOL RATTAN SINGH )
December 21, 2013 JUDGE
Gaurav Sorot
Sorot Gaurav
2014.01.14 14:24
I attest to the accuracy and
integrity of this document