Judgment 1. These applications are filed under Section 482 of the Code of Criminal Procedure, 1973, for quashing and setting aside the order of issuance of process by learned Judicial Magistrate First Class, Ankleshwar in Criminal Case No.218 of 2007 against the present applicants. 2. Brief facts leading to the filing of the present cases are that the respondent No.2 has filed complaint being Criminal Case No.218 of 2007 against one AlAas Trade Link and 24 others under Sections 428 and 429 of Indian Penal Code as well as under the provisions of Environment (Protection) Act, 1986 ('the Act, 1986' for short) read with Hazardous Wastes (Management and Handling) Rules, 1989 ('the Rules, 1989' for short). Criminal Misc. Application No.208 of 2007 is filed by the original accused Nos.19, 24 and 25, whereas, Criminal Misc. Application No.10355 of 2007 is filed by original accused Nos.20 to 23. The case of the original accused No.19 to 25 is similar and therefore both the present applications are disposed of by this common judgment. 3.1 In the said complaint, which was filed by the original complainant of Criminal Case No.218 of 2007 against one AlAas Trade Link and 24 others under Sections 428 and 429 of Indian Penal Code as well as under the Act, 1986 read with the Rules, 1989, it is alleged that on 04.12.2005, Deputy Environment Engineer and Scientific Officer visited the sight which was near Tapi Lodge on National Highway No.8, on the receipt of the telephonic message as well as newspaper reports in respect of death of cows on eating grass. At that time Mamlatdar, Ankleshwar and one Ramubhai Bharvad were present there. Said Shri Ramu Bharwad pointed out the place where the cows were grazing. Ramu Bharwad shown some papers and documents of M/s.Lupin Limited, Ankleshwar, which were in his possession, but were not handed over to the officers of the GPCB. 3.2 Both the officers inspected open place and inspected the heap of wastages having grass and other materials. On 13.12.2005, during inquiry, it was revealed that the said plot was belonging to one Thakorebhai who had given the said plot to Ashfak Khan for business. Samples were collected from this heap of waste for laboratory analysis. 3.3 It is further alleged in the said complaint that during inquiry, the officers inspected the premises of M/s.Lupin Limited. On 13.12.2005, during inquiry, it was revealed that the said plot was belonging to one Thakorebhai who had given the said plot to Ashfak Khan for business. Samples were collected from this heap of waste for laboratory analysis. 3.3 It is further alleged in the said complaint that during inquiry, the officers inspected the premises of M/s.Lupin Limited. They also contacted one Samirbhai of AlAas Trade Link who had informed the officers about purchase of empty drums from ISAGRO (Asia) Agrochemicals Private Limited, situated at Panoli. It is alleged that AlAas Trade Link has not obtained necessary permissions under the Rules from GPCB with respect to the said places. It is alleged in the said complaint that when the officers had visited ISAGRO (Asia) Agrochemicals Private Limited, situated at Panoli, they found the empty drums and Works Manager Shri R.G.Desai was interrogated. It was revealed that empty drums were given to ISAGRO (Asia) Agrochemicals Private Limited on 24.11.2005. 3.4 However, as regards the grass, it was pointed out by the Works Manager that said grass was usually and generally given to Bharvad Sureshbhai, who in turn, was providing milk and curd to canteen of the company. 3.5 It is further stated in the complaint that there was entry noted by Ankleshwar Rural Police Station on 04.12.2005 in respect to the death of cows and it was believed that due to irresponsible and negligent handling of hazardous waste being thrown in the area where the cows were grazing when the death of the cows appeared to have occurred. 3.6 Hence, it is alleged that the persons responsible for throwing hazardous waste in open place are responsible for contravention of provisions of the Environment (Protection) Act, 1986 read with Hazardous Wastes (Management and Handling) Rules, 1989 and under Section 428 and 429 of the Indian Penal Code. 3.7 It is the case of the applicants that learned Judicial Magistrate First Class, Ankleshwar, passed an order of inquiry under Section 202 of the Code. The concerned Investigating Officer recorded statements of number of witnesses, collected documentary evidences during the course of inquiry and on completion of inquiry submitted his report before the learned Magistrate, wherein, it was stated that the death of cows was as a result of poisonous insecticides 'Monocrotophosh', a poisoning substance. The concerned Investigating Officer recorded statements of number of witnesses, collected documentary evidences during the course of inquiry and on completion of inquiry submitted his report before the learned Magistrate, wherein, it was stated that the death of cows was as a result of poisonous insecticides 'Monocrotophosh', a poisoning substance. In the said report, it is stated by the Investigating Officer on the basis of the material collected during the course of inquiry that in respect of the grass collected from the heap of the waste material and water of the lake, no chemical poison was found in the samples of grass and water of lake. It is further stated in the said report that ISAGRO (Asia) Agrochemicals Private Limited company and Lupin Company were not manufacturing Organo Phosphorus or using such Organo Phosphorus NonThio Type Monocrotophosh. It is further stated in the report of the Investigating Officer that one Cheminova Company situated at Panoli, GIDC and one United Phosphorus Limited, situated at Ankleshwar GIDC are manufacturing Monocrotophosh. 3.8 The learned Judicial Magistrate First Class, after receipt of the report from the Investigating Officer submitted in pursuance to inquiry under Section 202 of the Criminal Procedure Code, and after considering the contentions of the original complainant, issued the process against the present applicants and other accused. 3.9 ISAGRO (Asia) Agrochemicals Private Limited, Mr. Partha S. Lahiri and Mr. Berjis Desai, original accused Nos.19, 24 and 25 respectively are petitioners No.1 to 3 in Criminal Misc. Application No. 2008 of 2007 and Lucio Zuccarello, Giuseppe Rapisarda, Giorgio Basile and Ruggero Gambini, original accused Nos. 20 to 23 respectively are petitioners No.1 to 4 in Criminal Misc. Application No.10355 of 2007. 4. Heard learned Senior Advocate Shri A.D. Shah for the applicants and learned APP Shri K.P. Raval for respondent-State and learned advocate Shri Rutvij Oza for respondent No.2. 5. Learned Senior Advocate Shri Shah for the applicants mainly submitted the following points. 5.1 Learned Judicial Magistrate First Class, Ankleshwar, has not properly considered the report submitted by the Investigating Officer and the material produced alongwith the said report and thereby without proper application of mind, issued the process against the applicants and therefore the order of issuance of process against the applicants is required to be quashed and set aside. 5.2 The applicants No.2 and 3 of Criminal Misc. 5.2 The applicants No.2 and 3 of Criminal Misc. Application No.2008 of 2007 were shown as an original accused Nos.24 and 25 in the complaint, are not residing at Ankleshwar and they are residents of Mumbai. Similarly, the applicants of Criminal Misc. Application No.10355 of 2007 who are original accused Nos.20 to 23 are not even Indian Citizens. Applicants No.1 to 3 of Criminal Misc. Application No.10355 of 2007 are residing at Italy, whereas, applicant No.4 of the said application is residing at Brazil. These applicants are not incharge of day to day affairs of the company which is situated at Ankleshwar. 5.3 The original accused No.24 has been authorized to act on behalf of the company under the provisions of the Factories Act by the Directors of the Company. The Criminal vicarious liabilities of accused Nos.19 to 23 and 25 under the provisions of the Act, 1986 and more particularly the provisions relating to liabilities of the company and responsibility of Directors, would not be attracted against these accused for the alleged acts committed by the company at Ankleshwar. 5.4 The ingredients of Sections 428 and 429 of Indian Penal Code are not made out against the applicants herein. It is further submitted that Investigating Officer recorded the statements of the witnesses and collected the documentary evidences such as the FSL report and opinion of Veterinary Doctor. Relying upon the said report, learned advocate for the applicants further submitted that according to the statements of witnesses, the cows had eaten grass near the place of offense in an area of about 18 feet which is alleged to be forming part of heap of grass with other chemical containing material. The sample of this grass material was sent to FSL, Surat. FSL report does not disclose presence of any poisonous chemical and there is no material about identity of the sample being of a particular company. 5.5 The final cause of death of cows, as revealed from the FSL report and opinion of Veterinary Doctor, is due to Arsenic Lead, Organo Phosphorus NonThio Type Monocrotophosh. The investigation revealed that written reply from GPCB clearly indicated that ISAGRO (Asia) Agrochemicals Private Limited and/or Lupin Ltd., are not, in any manner, dealing with Organo Phosphorus NonThio Type Monocrotophosh Insecticide. The investigation revealed that written reply from GPCB clearly indicated that ISAGRO (Asia) Agrochemicals Private Limited and/or Lupin Ltd., are not, in any manner, dealing with Organo Phosphorus NonThio Type Monocrotophosh Insecticide. 5.6 The samples of grass and water collected from the place, when examined by Forensic Science Laboratory, Surat, has clearly ruled out the presence of Organo Phosphorus Non Thio Type Monocrotophosh Insecticide poison from those samples. The samples collected by GPCB have been analyzed by GPCB in their laboratory but that is relating to powder containing chemicals and pastes and there was no sample of chemical contained grass or water. The samples taken by Veterinary Doctor from the place in respect to chemical contained grass and water which were analyzed by FSL, Surat, did not reveal the presence of any chemical poison. 5.7 The heap of grass and other material only revealed the presence of papers of Lupin Ltd., but there is no material in respect to ISAGRO (Asia) Agrochemicals Private Limited. 5.8 As regards disposal of drums by ISAGRO (Asia) Agrochemicals Private Limited to AlAas Trade Link on 24th November 2005, there is no report obtained by GPCB to find out whether there is any poisonous chemical in such drums. According to the statements of witness, there is no presence of any chemical in empty drums in view of method of packings of the material in polythene bags. AlAas Trade Link is having authorization from GPCB. It appears that AlAas Trade Link has taken this new premises recently and had not obtained necessary authorization in respect to the said new place. There is no report in respect to the said drums in possession of AlAas Trade Link. 5.9 The consent order issued in favour of ISAGRO (Asia) Agrochemicals Private Limited refers to the manufacturing of insecticides having no Organo Phospherus. The company is manufacturing the insecticides having group of 'Pyrethroid' and the products manufactured during the year 2004-2005 are not Herbicides and Fungicides. 5.10 The investigation report completely exonerates ISAGRO (Asia) Agrochemicals Private Limited from the liability of death of cows. The report of investigation also revealed the names of other companies concerned in manufacturing of Monocrotophosh and the possibility of such Monocrotophosh hazardous waste reaching through any medium during disposal of Monocrotophosh hazardous waste and consumption of such material by cows cannot be ruled out. The report of investigation also revealed the names of other companies concerned in manufacturing of Monocrotophosh and the possibility of such Monocrotophosh hazardous waste reaching through any medium during disposal of Monocrotophosh hazardous waste and consumption of such material by cows cannot be ruled out. 5.11 The learned Magistrate has not at all discussed the aforesaid aspects while issuing process against the present applicants and therefore, there is a total non application of mind on the part of the learned Magistrate while issuing the process and therefore, the process issued against the applicants be quashed and set aside. 6. Learned advocate for the applicants relied upon the decision of the Hon'ble Supreme Court rendered in the case of M/s. G.H.C.L. Employees Stock Option Trust Vs. M/s.India Infoline Limited and allied cases, reported in AIR 2013 SC 1433 and submitted that summoning of an accused in a criminal case is a serious matter. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. 7. Learned advocate for the applicants further relied upon the decision of the Hon'ble Supreme Court rendered in the case of S.K. Alagh Vs. State of U.P. and others reported in J.T. 2008 (2) SC 340 and submitted that Indian Penal Code, save and except some provisions, specifically providing, therefore, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offense. Learned advocate for the applicants therefore submitted that the applicants who are not incharge of day to day affairs of the company and some of whom are even not residing in India are also joined as an accused by the respondent No.2 in the complaint and therefore, the process issued against them may be quashed and set aside. In the report submitted by the Investigating Officer, it is specifically stated that ISAGRO (Asia) Agrochemicals Private Limited is not manufacturing Monocrotophosh. However, two other companies in the said area are manufacturing the aforesaid substance i.e. Cheminova Company and United Phosphorus Limited. However, surprisingly the respondent No.2 complainant has not filed complaint against these two companies. In the report submitted by the Investigating Officer, it is specifically stated that ISAGRO (Asia) Agrochemicals Private Limited is not manufacturing Monocrotophosh. However, two other companies in the said area are manufacturing the aforesaid substance i.e. Cheminova Company and United Phosphorus Limited. However, surprisingly the respondent No.2 complainant has not filed complaint against these two companies. Thus, in substance, learned advocate for the applicants submitted that learned Magistrate has failed to consider all the aforesaid aspects while issuing the process and therefore it can be said that there is total non-application of mind on the part of the learned Magistrate and therefore, the impugned process be quashed and set aside qua applicants. 8. On the other hand, learned advocate Shri Rutvij Oza appearing on behalf of respondent No.2 submitted following points. 8.1 The learned Magistrate has not committed any error while issuing the process against the applicants. The learned Magistrate has passed a reasoned order while issuing process against the accused and therefore, it is not correct to submit on the part of the applicants that learned Magistrate has not applied his mind. 8.2 That 31 cows died due to consumption of quantiminated grass and drinking water from the place where the empty drums of the applicant company were found. As per the postmortem report of the dead bodies of the cows, it is clear that cows died as a result of poisonous insecticide Organo Phospherus NonThio Type Monocrotophosh. 8.3 That, looking to the gravity of the offense, the process issued by the learned Magistrate is fully justified. Mr. Oza relied upon Section 47 of the Companies Act and submitted that when an offense is committed by the company, every person, who, at the time when the offense was committed, was incharge of and was responsible to the company for the conduct of the business of the company as well as the company, shall be liable to be proceeded against that, be punished accordingly. 8.4 Learned advocate Shri Oza relied upon the decision of the Hon'ble Supreme Court rendered in the case of U.P. Pollution Control Board Vs. 8.4 Learned advocate Shri Oza relied upon the decision of the Hon'ble Supreme Court rendered in the case of U.P. Pollution Control Board Vs. Mohan Meakin Limited, reported in 2000 Criminal Law Journal 1799 and submitted that where an offense under the Act has been committed by a company, every person who was in charge of the company and was responsible to the company for the conduct of the business of the company is also made guilty of the offenses by the statutory presumption, any director, manager or other officer of the company who has consented to or connivance in the commission of the said offenses, is liable for the punishment of the offenses. Thus, learned advocate for the respondent No.2 submitted that this Court may not exercise the powers under Section 482 of the Code of Criminal Procedure. 9. Learned APP Shri K.P. Raval adopted the arguments advanced on behalf of respondent No.2 Original Complainant. 10. I have heard learned advocates for the parties. I have also considered the submissions canvassed and the judgments relied upon by the learned advocates for the respective parties and perused the record. 10.1 From the record, it appears that the respondent No. 2 complainant has filed the complaint against 25 accused. However, so far as the applicants of both these applications are concerned, no specific role is attributed to these applicants. 10.2 It is not alleged in the complaint that how the applicants are connected with the alleged offenses and how they are vicariously liable for the act or omission on the part of the company. 10.3 It is not stated in the complaint that the applicants herein are incharge of day to day affairs of the Management of the company. From the record it appears that two applicants are residing at Mumbai, three applicants are residing at Italy and one of the applicants is residing at Brazil. Therefore, in absence of specific averment with regard to involvement of these applicants in the incident alleged in the complaint, it is not proper on the part of the complainant to join these applicants as accused in the complaint. 10.4 Learned Judicial Magistrate First Class, Ankleshwar, has also not applied his mind with regard to this aspect. Therefore, in absence of specific averment with regard to involvement of these applicants in the incident alleged in the complaint, it is not proper on the part of the complainant to join these applicants as accused in the complaint. 10.4 Learned Judicial Magistrate First Class, Ankleshwar, has also not applied his mind with regard to this aspect. It is further clear from the record that Investigating Officer has submitted his detailed report before the learned Magistrate after recording the statement of witnesses and collecting the documentary evidences. 10.5 From the reports submitted by the Investigating Officer which are produced on record before this Court, it is clear that Investigating Officer has exonerated the applicants. In the said report, it is stated by him that death of the cows is because of consumption of Monocrotophosh substance. However, it is specifically stated by the Investigating Officer that the applicant No.1 Company is not manufacturing the said Monocrotophosh substance. It is further specifically stated by the Investigating Officer that one Cheminova Company and United Phosphorus Limited are manufacturing the said substance viz. Monocrotophosh. 10.6 The respondent No.2 has filed the additional affidavit which is produced at page 55 with the compilation of Criminal Misc. Application No.2008 of 2007, wherein, the concerned officer of respondent No.2 has specifically stated in para No.2 as under: “2. I state that after going through relevant records including the copy of consent (CCA) granted by the GPCB it is found that the petitioner company is neither producing monocrotophas nor organophospharas at the Ankleshwar site. A copy of CCA consent granted to the petitioner company is annexed to this application and marked as Annexure “R1”. 10.7 Thus, from the affidavit of the respondent No.2 also, it is clear that the applicant No.1 Company is not manufacturing Monocrotophosh nor it is manufacturing Organo Phosphorus at Ankleshwar site. 10.8 Thus, from the record, it is clear that the learned Magistrate has not applied his mind with regard to the report submitted by the Investigating Officer, nor he has applied the mind with regard to the involvement of the applicants in the alleged offenses. 11. At this stage, I refer to the observations made by the Hon'ble Supreme Court in the case of M/s. GHCL Employees Stock Option Trust (Supra). The Hon'ble Supreme Court in the said decision held in para No.14 as under: “14. 11. At this stage, I refer to the observations made by the Hon'ble Supreme Court in the case of M/s. GHCL Employees Stock Option Trust (Supra). The Hon'ble Supreme Court in the said decision held in para No.14 as under: “14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.” 12. The Hon'ble Supreme Court in case of S.K. Alagh (supra) in paragraphs No.17 and 21 observed as under: “17. Indian Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offense. “21. We may, in this regard, notice that the provisions of the Essential Commodities Act, Negotiable Instruments Act, Employees' Provident Fund (Miscellaneous Provision) Act, 1952 etc. have created such vicarious liability. It is interesting to note that Section 14A of the 1952 Act specifically creates an offense of criminal breach of trust in respect of the amount deducted from the employees by the company. In terms of the explanations appended to Section 405 of the Indian Penal Code, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. Whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling under Section 406 of the Indian Penal Code vicarious liability has been held to be not extendable to the Directors or officers of the company. See Maksud Saiyed v. State of Gujarat and Ors.” 13. Thus, from the aforesaid decisions rendered by the Hon'ble Supreme Court, it is clear that the learned JMFC has not applied his mind while issuing the process against the applicants. See Maksud Saiyed v. State of Gujarat and Ors.” 13. Thus, from the aforesaid decisions rendered by the Hon'ble Supreme Court, it is clear that the learned JMFC has not applied his mind while issuing the process against the applicants. Thus, from the record, it appears that the issuance of process against the applicants is nothing but an abuse of process of the Court and therefore, to secure the ends of justice, the same is required to be quashed and set aside while exercising powers under Section 482. 14. In view of the aforesaid, the process issued by the JMFC against the applicants in Criminal Case No.218 of 2007 is hereby quashed and set aside. 15. With the aforesaid observations and directions, both these applications stand allowed. Rule is made absolute.