Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 701 (RAJ)

Ajay Textiles v. ACJM No. 1, Jodhpur

1996-07-11

B.J.SHETHNA

body1996
Honble SHETHNA, J. – All these petitions are disposed of by this common order as common question of law is involved in these petitions. (2). Petitioners are different but non-petitioners are same. Rajasthan High Court, Jodhpur, non-petitioner No.3 has preferred to file reply affidavit in one petition i.e. S.B. Civil Writ Petition No. 4933/92. Learned counsel Shri Dave appears for the non-petitioner no.3, Rajasthan High Court, Jodhpur and states that he is authorised to appear only in S.B. Civil Writ Petition No. 4933/92. (3). Learned counsel Shri Bhandari for the petitioner, in all these petitions, has vehemently challenged the impugned order at annex.1 dated 18.5.1992 passed by the Rajasthan High Court, Jodhpur by which 12 criminal cases filed by the comp- lainant, Rajasthan Rajya Jal Pradushan Niwaran and Niyantran Mandal against 12 different units of Jodhpur were transferred from the court of Addl. Chief Judicial Magistrate, No.1, Jodhpur to the Court of Addl. Chief Judicial Magistrate (Environment), Pali in exercise of powers by the High Court under Section 407 Cr.P.C. for the disposal of the cases in accordance with law. He challenged the impugned order mainly on the ground that before passing the impugned order the petitioners were not given an opportunity of being heard. He submitted that this being an administrative order, the High Court ought to have heard all the petitioners before passing the impugned order. In support of his submission he has tried to rely upon the Division Bench decision of this Court reported as Deva & Anr. vs. The High Court of Judicature forRajasthan and Ors. (1) and submitted that the impugned order be quashed and set aside. According to him the case does not fall under Section 407 of Cr.P.C. as none of the requirements of Section 407 Cr.P.C. is attracted in the case for passing the order. (4). As against that, learned counsel Shri Dave for the Rajasthan High Court submitted that though it was an administrative order, but on the peculiar facts and circumstances of the case no opportunity of hearing was required to be given to the petitioners before passing the order by the High Court. In support of his submission he relied upon a Supreme Court decision reported Kartar Singh vs. State of Punjab (2). Learned counsel Shri Shishodia for the non-petitioner No.4 and lear- ned Govt. Advocate also supported Mr. Dave. (5). In support of his submission he relied upon a Supreme Court decision reported Kartar Singh vs. State of Punjab (2). Learned counsel Shri Shishodia for the non-petitioner No.4 and lear- ned Govt. Advocate also supported Mr. Dave. (5). It is true that before passing the impugned order no notice was served, but from the impugned order at Annex 1, it clearly appears that on a letter dated 30th March, 1992 received from the Addl. Distt. Judge, Jodhpur the Rajasthan High Court thought it fit to exercise its powers under Section 407 Cr.P.C. It is clear from the affidavit and from the facts on the record that all the 12 cases filed by the complainant against the accused-present petitioners were of 1984. The impugned order was passed in 1992 and admittedly for a period of 8 years there was no progress at all in any of these cases. The State Govt. with the consultation of High Court thought it fit to open a special court for disposal of environment cases which is the need of the day and, therefore, by an order dated 16.11.1991 the State Govt. decided to create special courts for environment at Pali for environment cases arising out of Pali, Jodhpur and Barmer districts and accordingly, a court of Addl. Chief Judicial Magistrate (Environment), Pali was created for the early disposal of environment cases. When the Rajasthan High Court received letter dated 30.3.1992 from Distt. Judge, Jodhpur it immediately took a decision and passed the impugned order, Ex.1 on 18.5.92 and transferred all the cases before the Addl. Chief Judicial Magistrate (Environment), Pali from the court of Addl. Chief Judicial Magistrate No.1, Jodhpur. Section 407 Cr.P.C. clearly provides that the High Court may act either on the report of the lower court or on an application of the party or on its own initiative can transfer a case from one court to another. In these cases, from the order itself it appears that on being moved by the District and Sessions Judge the High Court thought it fit to exercise the powers under Section 407 Cr.P.C. as it was expedient for the end of justice as the environment cases are required to be given top priority so that it can have deterrent effect on others also those who are polluting the environment. Thus, in this case, provisions of Section 407 Cr.P.C. were clearly attracted and, therefore, it cannot be said that while passing the impugned order at Annex.1 any error was committed. There was no question of giving any notice in such cases though it was an administrative order. Special courts are created for specific purpose and if the cases are not allowed to be tried by special courts then the very purpose of creating special courts would be frustrated. The facts of Devas case (supra) are totally different. It had no application to the facts of the present cases, and therefore, in my view the Division Bench Judgment cited by the learned counsel for the petitioner in his support would not apply. However, at this stage, I would like to produce some observations made by the Division Bench of this Court in para No. 19 of the Devas case (supra), wherein, the High Court has observed that : ``The powers may be exercised when circumstances as are enumerated under Sec. 407 Cr.P.C. are required to be considered by the High Court and the circumstances are that fair and impartial enquiry is not possible, or there is likelihood of unusual difficulty on a question of law arising in the case, the general inconvenience of the parties and witnesses, or expediency of the transfer for the ends of justice. (6). As stated earlier, considering the facts and circumstances of the case when the High Court decided to transfer the cases to the special courts it cannot be said that the impugned order was bad in any manner. Infact, I called upon Mr. Bhandari to point out that even if show cause notice was given to the petitioners, what reply could have been given in such matters. He was unable to give any reply to that. Infact, there is no need of issuing show cause notice in such cases. The only reply which came at this stage from Mr. Bhandari was that no retrospective effect can be given by passing the impugned order. I fail to understand that how by the impugned order retrospective effect is given. The very fact that there was a heavy back log in the lower court in which cases of environment act were also there, but they could not be heard and disposed of for years together and, therefore, the cases were to be transferred to the special courts. The very fact that there was a heavy back log in the lower court in which cases of environment act were also there, but they could not be heard and disposed of for years together and, therefore, the cases were to be transferred to the special courts. Therefore, there is no question of giving retrospective effect. It was made for the pending cases only and future cases would obviously be filed before the special courts. Therefore, this submission is also without any substance. (7). Supreme Court in Kartar Singhs Case (supra) has clearly held that the question of issuing notice and hearing the parties may not arise if the order is pass- ed suo-moto. In the letter received from the District Court the Rajasthan High Court in its power under Section 407 Cr.P.C. passed the order, therefore, there was no question of issuing any notice to the petitioners. (8). Before parting with the Judgment I must state that because of the stay order the cases filed against the present petitioners could not proceed further be- fore special courts. The cases are very old and they are required to be tried and decided expeditiously. (9). In view of the above discussion, I do not find any substance or merits in these petitions. Accordingly, they are dismissed. The stay order granted in all the petitions stands vacated. The court of Addl. Chief Judicial Magistrate (Environment), Pali is directed to dispose of all the 12 criminal cases filed against the present petitioners under the Environment Act as early as possible preferably within six months. All the petitioners shall co- operate during the trial and will not ask for any adjournment and the court of Addl. Chief Judicial Magistrate (Environment), Pali will decide the cases by giving day to day hearing. All the petitioners are represented through their counsel Shri Bhandari, therefore, they are directed to first appear before the Addl. Chief Judicial Magistrate (Environment), Pali on July 30, 1996 without fail. If they will not appear on that date then non- bailable warrants shall be issued against them.