K. L. SHRIVASTAVA, J. ( 1 ) THIS revision petition is directed against the order dated 17/11/1981 passed by the Chief Judicial Magistrate, Ujjain in Criminal Case No. 7183 of 1981 whereby on the petitioners complaint filed on 17/7/1981 cognizance of some of the offences therein alleged has been taken against only 2 out of the 22 accused persons. ( 2 ) IT is not in controversy that the non-applicants are all connected with the Gwalior Rayon Silk Manufacturing and Weaving Company Ltd. Nagda (for short the Company ). Cognizance has been taken against the Factory Manager Kishorilal and the said company. ( 3 ) ON the date on which the complaint was filed the Water (Prevention and Control of Pollution) Act, 1974 (for short the Water Act) and the Air (Prevention and Control of Pollution) Act, 1981 (for short the Air Act) had come into force. ( 4 ) THE facts giving rise to this petition are these. The petitioner filed the complaint in the Court of the Chief Judicial Magistrate, Ujjain against the non-applicants and two others in respect of the offences under various sections of the Indian Penal Code. After inquiry under Section 202 of the Criminal Procedure Code, 1973 (for short the Code) offences under Section 277 (fouling water of public spring or reservoir), 278 (making atmosphere noxious to health) and 290 (punishment for public nuisance not otherwise provided for) have been registered against only 2 persons and not against the non- applicants. ( 5 ) ACCORDING to the complaint, the Company at its Chemical and Industrial Complex at Birlagram, Nagda manufactures staple fibre by viscose rayon process. In this process it consumes large quantity of water arid the waste water is acidic and emits odour. This water is not treated before its disposal in the nearby Kuchha Nala. The water becomes stagnant and pollutes the water sources of the area including the springs and reservoirs. This is injurious to the health and well-being of the inhabitants of the area. In the process aforesaid gases are also produced which pollute the atmosphere. The gases are poisonous and spoil the atmosphere surrounding the Nagda municipal area within the radius of 8 K. Ms. ( 6 ) IT has further been stated in the complaint that the Company has its own powerhouse which consumes large quantity of coal. In the process aforesaid gases are also produced which pollute the atmosphere. The gases are poisonous and spoil the atmosphere surrounding the Nagda municipal area within the radius of 8 K. Ms. ( 6 ) IT has further been stated in the complaint that the Company has its own powerhouse which consumes large quantity of coal. The coal ashes settle in the adjoining areas and pollute the air and thereby endanger human life. ( 7 ) AGGRIEVED by the order for registering a criminal case against only some of the accused persons, the petitioner has filed the present revision petition therein contending that cognizance ought to have been taken as against all the non-applicants. ( 8 ) LEARNED counsel for the non-applicants has raised a preliminary objection to the effect that in view of the various provisions in the Water Act and the Air Act, in the absence of written sanction of the Respective State Boards, the learned trial Magistrate has no jurisdiction to take cognizance of the offences in question and the revision petition, therefore, deserves to be dismissed. ( 9 ) LEARNED counsel for the petitioner contends that at the stage at which the complaint is the non-applicants have no locus standi to so object and further that the objection is ill-founded. According to him till the process is issued against the nonapplicants under Section 204 of the Code, they have no right of hearing in respect of the complaint. It is contended that the Water Act and the Air Act, concern themselves with the Boards constituted there under and the offences under those Acts have nothing to do with the complaint of a private citizen in respect of the offences under the Indian Penal Code. ( 10 ) THE principal point for consideration is whether the preliminary objection raised by the non-applicants can be permitted to prevail. ( 11 ) I shall first deal with the controversy raised by the petitioner as to the locus stendi of the non-applicants to canvass the preliminary objection. Learned counsel for the petitioner relying on the decisions in Chandra Deo Singh v. Prakash Chandra Bose, and Smt. Nagawwa v. Veeranna Shivalingappa and others, contends that till the stage under Section 204 of the Code is reached the non-applicants have no right to be heard against the complaint. Learned counsel for the petitioner relying on the decisions in Chandra Deo Singh v. Prakash Chandra Bose, and Smt. Nagawwa v. Veeranna Shivalingappa and others, contends that till the stage under Section 204 of the Code is reached the non-applicants have no right to be heard against the complaint. ( 12 ) LEARNED counsel for the non-applicants in reply contends that it is no doubt true that the non-applicants have no right to controvert the factual contention in the complaint at the stage before its registration. However the law does not contemplate a blanket bar shutting out even objections touching the question of want of jurisdiction. ( 13 ) ON a careful consideration of the submissions made I find that the non-applicants aforesaid contention regarding the right to urge bar of jurisdiction is well-founded and must be permitted to prevail. ( 14 ) IT is certainly not the law that irrespective of the availability of objections going to the root of jurisdiction an accused in a criminal trial has to pass through the various stages of the trial. In the decision in Mangharam v. State and others, with reference to two Supreme Court decisions it has been observed as under in paragraph 6: During the preliminary enquiry under section 202 of the Code the accused has no right to take part in the proceedings, nor has the Magistrate any jurisdiction to allow him to do so. The preliminary enquiry under section 202 is held for the purpose of ascertaining the truth or falsehood of the complaint and the accused can be held to have no right at that stage to say that the accusation against him is false because that is a matter which the accused can properly show in his defence during the trial. But the inquiry under section 202 can be held only when the Magistrate had authority to take cognizance of the offence. Sanction under section 197 of requisite authority being a condition precedent for taking cognizance of the offence it would be open to the accused even at that stage to take a preliminary objection to the maintainability of the prosecution and it would also be duty of to Court to decide whether section 197 does or does not apply because upon that decision will depend the question of the courts jurisdiction to take further proceedings in the matter. This, however does not mean that the accused cannot raise such objection at subsequent stage of the proceedings. In determining the question about sanction the Court does not enquire about truth or falsehood of the complaint but examines the question whether the condition necessarily for its taking cognizance of the case is satisfied or not. Such enquiry cannot be said to be in the nature of trial because it does not involve any decision on the merits of the case. (emphasis supplied) ( 15 ) NOW, I take up the preliminary objection sought to be raised by the non-applicants against cognizance of the complaint being taken. ( 16 ) LEARNED counsel for the non-applicants contends that in view of the provisions embodied in sections 49 (1) and 60 of the Water Act, and sections 43 and 52 of the Air Act, cognizance of the offences cannot be taken in the absence of written sanction of the Boards. ( 17 ) LEARNED counsel for the petitioner relying on the decisions in T. S. Baliahs case4 and the One in Delhi Municipalitys case5, contends that in view of section 26 of the General Clauses Act, 1897 (Central) complaint can be under the Indian Penal Code as well as under the aforesaid two special Acts and as the various provisions can stand together there is no bar against cognizance of the offences under the Indian Penal Code being taken. ( 18 ) AT this stage it is necessary to advert to section 49 of the Water Act, providing for cognizance of offences. Sub-section (1) thereof is in these terms: No Court shall take cognizance of any offence under this Act except on a complaint made by, or with the previous sanction in writing of the State Board and no Court inferior to that of Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under this Act. Section 60 of the Water Act regarding its overriding effect runs thus: The provisions of this Act, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. ( 19 ) CORRESPONDING provisions in sections 43 and 52 of the Air Act, are in these terms: 43. Section 60 of the Water Act regarding its overriding effect runs thus: The provisions of this Act, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. ( 19 ) CORRESPONDING provisions in sections 43 and 52 of the Air Act, are in these terms: 43. No Court shall take cognizance of any offence under this Act except on a complaint made by or with the previous sanction in writing of the State Board and no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. 52. Save as otherwise provided by or under the Atomic Energy Act, 1962 in relation to radioactive air pollution the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. ( 20 ) THE contention of the learned counsel for the non-applicants is that the Water Act and the Air Act, are special Acts brought on the Statute Book for prevention and control of water and air pollution by any trade or industry. He urges that they lay down a complete code in respect thereof and it has been expressly provided that notwithstanding anything inconsistent therewith contained in any enactment other than the Acts, their provisions have to prevail. According to him inconsistent provision in any other Act cannot, therefore be permitted to come in the way of the provisions of the special Acts and defeat them. The Legislative mandate is that the provisions of the special Acts shall prevail, The gravamen of the argument of the learned counsel for the non-applicants is that in view of the express special provisions in section 60 of the Water Act and Section 52 of the Air Act, it has to be held that to the extent of inconsistency the provisions in the Indian Penal Code, the General Clauses Act and the Code stand repealed. It is urged that even on the theory of implied repeal the inconsistent provisions cannot be permitted to prevail. He goes on to urge that in the state of law as it is on the petitioners complaint without the previous written sanction of the State Boards the Court is precluded from taking cognizance of the alleged offences constituted by the pollution of air and water caused by the industry. He goes on to urge that in the state of law as it is on the petitioners complaint without the previous written sanction of the State Boards the Court is precluded from taking cognizance of the alleged offences constituted by the pollution of air and water caused by the industry. ( 21 ) IT may be pointed out that where an offence under the Water Act, is committed by a Company Section 47 ibid points out the persons who can be proceeded against and punished. The corresponding provision in the Air Act is in Section 40. Regarding the relevant offence and the penalty under the Water Act Sections 24 and 43 thereof and regarding offence and the penalty under the Air Act, Sections 22 and 37 thereof may usefully be perused. ( 22 ) LEARNED Counsel for the petitioner urges that repeal by implication in seldom favored. The continuance of existing legislation in the absence of an express provision of repeal is assumed and the burdan is on him who asserts that there is an implied repeal to show that the two statutes or the provisions cannot stand together. In support of his submission regarding the general principle governing implied repeal he has placed reliance on the decision in Delhi Municipality v. Shiv Shankar (supra), on the principle on which the rule of implied repeal rests, the decision in Zaver Shais case6 is also pertinent. ( 23 ) AT this stage Section 26 of the General Clauses Act, may also be adverted to. It provides that when an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted or punished under any of those enactments but shall not be liable to be punished twice for the same offence. This section no doubt provides for co-existence of two penal provisions covering the same subject-matter. It may also be stated that the proposition that the provisions of a prior general Act, are repealed by the provisions of the latter special Act, is not of universal application. Where there is no repeal the Court shall attempt to harmonise the two separate provisions and to see if they can co-exist without presuming repeal either wholly or partially. Where prosecution is permissible both under the special law and the general statute the subsequent remedy is cumulative and does not take away the former remedy. Where there is no repeal the Court shall attempt to harmonise the two separate provisions and to see if they can co-exist without presuming repeal either wholly or partially. Where prosecution is permissible both under the special law and the general statute the subsequent remedy is cumulative and does not take away the former remedy. ( 24 ) FROM what has been discussed above it follows that Section 26 of the General Clauses Act, is to be applied unless the intention to repeal the prior law is clear by express provision to that effect or by implication arising out of in com pat ability to that effect between the two statutes. In the case in hand, the clause, notwithstanding anything inconsistent therewith contained in any enactment other than the Act in the relevant provisions of the Act leave no manner of doubt as to the legislative intent that the provisions of the Acts shall prevail and the provisions of Section 26 of the General Clauses Act cannot bridge the wide gulf in the matter of prosecution for the offences under the Indian Penal Code and the offences under the special Acts. ( 25 ) I am of the view that the crucial question to ask is whether what is complained of any by the petitioner in his complaint constitutes offences under the Water Act and the Air Act, and if the answer is in the affirmative as it has to be held that the provisions that no Court shall take cognizance thereof on a complaint which does not comply with what is laid down as a condition precedent for cognizance being taken comes into operation and must prevail. ( 26 ) THE resultant effect of the provisions in the Water Act, and the Air Act is that irrespective of the question whether or not an Act, complained of also constitutes an offence under the Indian Penal Code, the prosecution has to be in compliance with the provisions of these special Acts and it is not open to a Magistrate to take cognizance under Section 190 of the Code without the written sanction of the State Boards the express legislative mandate cannot be permitted to be whittled down by labelling the Act complained of as an offence not under the special Acts but under the Indian Penal Code. ( 27 ) THEN any prosecution for an act which is an offence under the special Act, by any agency other than the competent Board on the ground that it is also an offence under the Indian Penal Code can also be characterised as colourable because the offences under the special Acts are graver ones and labelling the Acts as an I. P. C. offence will be just to evade the requirement of previous sanction under the special Acts. The decision in Chandrika saos case,7 is clearly distinguishable on facts. ( 28 ) SECTION 21 of the Water Act provides for taking amples of effluents. Sub-Section (2) thereof makes the result of analysis inadmissible in evidence in any legal proceedings in the absence of non-compliance of the various provision in Subsections (3), (4) and (5 ). Section 26 of the Air Act, contains similar provisions. These provisions are for due protection to the industries. But these special Acts are not on the Statute Book for providing to the trade or industry any absolute immunity from prosecution for offenders. They are there to ensure a proper balance between the conflicting claims of nations industrial progress and the hazards to the health of the citizens. The liability for prosecution by the Board or with its written sanction even at the instance of other agency is very much there and the contention that a private individual is left with no remedy in respect of his grievance regarding pollution by industries has no merit. In the decision in A. R. Antulay v. R. S. Nayak, it has been pointed out that the principle that anyone can set the criminal law in motion is subject to statutory exception. This right to set the criminal law in motion can also be subjected by the Legislature to contain preconditions. In the case in hand the right of filing private complaint is clearly there but by the special Acts the right has been subjected to the restriction on the lines of Section 197 of the Cr. P. C. and previous written sanction of the State Boards has been made a condition precedent to the cognizance of the offences being taken by Courts. This safeguard has a rational basis. Without it industrialists could be vexed day in and day out be being dragged to the criminal Courts for variety of reasons even unconnected with the indication of the law. This safeguard has a rational basis. Without it industrialists could be vexed day in and day out be being dragged to the criminal Courts for variety of reasons even unconnected with the indication of the law. ( 29 ) IN the ultimate analysis, I hold that the preliminary objection as to the want of jurisdiction in the Magistrate in the absence of Boards within sanctions to take cognizance of the alleged offences constituted by the water and air pollution caused by the industry has merit and deserves to be upheld. ( 30 ) IN the result I allow the preliminary objection and as in my view no interference in exercise of the discretionary revisional jurisdiction is called for, the revision petitions is dismissed. Order accordingly. .