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Gujarat High Court Case Information System
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CR.A/2321/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2321 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
HARKISHAN
RAMNIKLAL JOSHI (ASST. LAW OFFICER)
Versus
STATE
OF GUJARAT & 2
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Appearance
:
MR RITURAJ M MEENA for
Appellant
MR HL JANI ADDL. PUBLIC PROSECUTOR for Respondent
No.1
MR ZAKIRHUSEN SHAIKH for Respondent Nos. 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/02/2010
ORAL
JUDGMENT
[1] The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 10.04.2007 passed by the learned Judicial Magistrate, First Class, Junagadh, in Criminal Case No.2436/1996, whereby the accused has been acquitted of the charges leveled against them.
[2] The brief facts of the prosecution case are that the original accused No.1 is a Sunchem Industries and original accused No.2 is a proprietor. The company is manufacturing remezol dyes and uses B-Acid 185 k.g., Soda S-85 k.g. etc., as row material for manufacturing the remezol dyes and for manufacturing the aforesaid goods, everyday the factory discharging 400 liters polluted water in the canal without obtaining the permission from the Board. A notice under Section 23 of the breach of the Water (Pollution and Control of Pollution) Act (for short the Act ) came to be issued to the respondents. Therefore, the sample of polluted water was taken and after sealing the same, sent to the Public Analyst for analysis. On receipt of the report, it has been found that the accused have committed the breach of Sections 24 and 25 of the Act. Therefore, after obtaining the sanction the complaint came to be filed againt the respondents accused for the offences punishable under Sections 43, 44 and 47 of the Act before the Court.
[3] To prove the case against the present accused, the prosecution has examined the witnesses and also produced documentary evidence.
[4] At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the accused of all the charges leveled against him by judgment and order dated 10.04.2007.
[5] Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant State has preferred the present appeal.
[6] It was contended by Mr.Rituraj Meena, learned advocate for the appellant that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the offence against the present accused. Learned advocate for the appellant has also taken this court through the oral as well as the entire documentary evidence. Learned advocate for the appellant has submitted that the trial Court has not considered the provisions of Section 49 r/w. Section 11 of the Act. He has also submitted that the trial Court erred in appreciating Section 49 of the Act, amended by Act 53 of 1988, and the Notification dated 28th October, 1999 passed by Forest and Environment Department. Learned advocate for the appellant has contended that the trial Court has not properly interpreted the above sections, decision of this Court in case of M/s.Nicosulf Industries and Exports Private Limited and others Vs. State of Gujarat and other, reported in 2002 GLR (2) 1550 relied upon by the trial Court is not applicable to the facts of the present case. He has contended that in view of the aforesaid facts and circumstances, the judgment and order dated 10.04.2007 passed by the learned Judicial Magistrate, First Class, Junagadh, in Criminal Case No.2436/1996 is required to be quashed and set aside and the accused may be held guilty for the offences charged against them.
[7] At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
[8] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
[9] Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
[10] Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.
[11] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[12] It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417, wherein, it is held as under:
& This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
[13] Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
[14] I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned advocate for the appellant, it appears that the prosecution has failed to follow the provisions of Section 33(1) of the Water (Prevention and Control of Pollution) Act. From the record the trial Court has clearly found that the complainant was not authorized to file complaint against the accused. The trial Court has also observed that the sanction was accorded without application of mind. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
[15] Mr.Meena, learned advocate for the appellant is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
[16] In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against them.
[17] I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[18] I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bonds, if any, stands cancelled.
[ Z. K. SAIYED,J. ] (vijay) Top