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2007 DIGILAW 598 (KER)

Suresh v. State of Kerala

2007-09-10

K.P.BALACHANDRAN

body2007
ORDER K.P. Balachandran, J. 1. Petitioners are accused Nos. 1 to 5 in CC No. 958/03 on the file of the Judicial First ClassMagistrate's Court, Mavelikkara (JFCM Court) for an offence punishable under S.15 of the Environment (Protection) Act, 1986 (hereinafter referred to as 'the Act'), registered on the basis of Annexure-II final report laid by the Sub-Inspector of Police, Kurathikad after due investigation into Annexure-l crime. 2. It is vehemently contended before me by the learned counsel for the petitioners that the learned Magistrate should not have taken cognizance of the offence in view of the bar under S.19 of the Act, as no complaint has been made by any competent officer and a final report of the nature of Annexure-ll could not have been taken cognizance of by the learned Magistrate. The relevant portion of S.19 of the Act, which come up for consideration in this context, is extracted below: " 19. Cognizance of offence.-- No Court shall take cognizance of any offence under this Act except on a complaint made by (a) the Central Government or any authority or officer authorised in this behalf by that Government." Annexure-II is neither a complaint nor is it one filed by an officer or authority authorised in this behalf by the Central Government, as specified in S.19(a) of the Act, it is contended. 3. Learned Public Prosecutor submits that Noise Pollution (Regulation and Control) Rules, 2000 (hereinafter referred to as 'the Rules'); has defined the authority vide R. 2(c) thereof. R.2 (c) of the Rules is extracted below for easy reference: "2. Definitions." (a) xxxx xxxx xxxx (b) xxxx xxxx xxxx (c) "authority" means and includes any authority or officer authorised by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer not below the rank of the Deputy Superintendent of Police designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force." The preface to the Rules, however, shows that the Rules are made in exercise of the powers conferred by S.3(2)(ii), sub-s.(1) and cl.(b) of sub-s.(2) of S. 6 and S.25 of the Environment (Protection) Act read with R.5 of the Rules. All the same, S.19 of the Act is not made mention of to accept the authority notified under these Rules is a competent authority to file a complaint under clause (a) of S.19 of the Act. It is contended by the Public Prosecutor that S.25 confers power on the Central Government to make Rules for carrying out the purpose of the Act by notification in the Official Gazette and S.25(2)(j) of the Act deals with any other matter, which is required to be or may be prescribed under the Act and therefore, though S.19 of the Act is not specifically invoked, the Rule issued invoking also the power under S.25 of the Act is valid for the purpose of S.19(a) as well in view of S.25(2)(j) of the Act. 4. If the said submission is accepted, the authority made mention of under Rule 2(c) of the Rules, extracted above, stands defined in the manner as already made mention of. In that event, the police officer of the lowest rank, who is competent to file a complaint is the Deputy Superintendent of Police, designated for the maintenance of ambient air quality standards in respect of noise under the law for the time being. The police officer, who has laid the charge in the instant case, is only a Sub-Inspector of Police and hence, the question as to whether he is designated for the maintenance of ambient air quality standards in respect of noise does not arise for consideration. It is clear, therefore, that Annexure-II final report submitted after due investigation into Annexure-I crime by the Sub-Inspector of Police and Calendar Case No.958/03, registered on the file of the Judicial First Class Magistrate's Court, Mavelikkara on the basis thereof, are not to end in conviction of the petitioners/ accused and proceeding with the said case will only be an abuse of the process of Court. In the result, allowing this Crl. M.C., I quash the proceedings in C.C. No. 958/03 on the file of the Judicial First Class Magistrate's Court, Mavelikkara.