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2019 DIGILAW 542 (ORI)

Odisha Mining Corporation Ltd. v. State of Odisha

2019-08-26

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The pivotal question that arises in these cases is whether the petitioner Odisha Mining Corporation Ltd. (hereafter 'the Company') who has not been arrayed as an accused in the complaint cases can challenge the order of taking cognizance and issuance of process against other accused persons in anticipation that the Company might be arrayed as an accused in the proceedings at a later stage. The petitioner Company has filed these two criminal miscellaneous cases under section 482 of the Cr.P.C. with a prayer to quash the impugned orders dated 24.02.2014 passed by the learned J.M.F.C., Jajpur Road in taking cognizance of offence under section 15 of the Environment Protection Act, 1986 (hereafter 1986 Act') and issuance of process against the accused persons in 2 (c) C.C. No.10 of 2014 and 2(c) C.C. No.12 of 2014 vide CRLMC No.1923 of 2018 and CRLMC No.1925 of 2018 respectively. Since both the CRLMC applications arise out of identical facts and circumstances and raise similar questions of law and the petitioner is the same, with the consent of the parties, those were heard analogously and are being disposed of by this common judgment and order. 2. One Sri Maheswar Panigrahi, Sub-Divisional Magistrate, Jajpur is the complainant in both the complaint cases. 2 (c) C.C. Case No.10 of 2014 was filed against CMD, OMC, OMC House, Bhubaneswar as well as Asst. GM (Mines), DGM (Mines), AGM (Mines), Deputy Manager (Mines) and Asst. Manager (Mines) of Kaliapani Chromite Mines of OMC Ltd. respectively stating therein that the complainant is authorised to file the case by virtue of the power conferred on him by the Central Government and as such he is the authorised person to file the complaint under section 19 of the 1986 Act. It is alleged in the complaint petition that the Company which was having a leasehold area of 971.245 Hects. in Kaliapani Chromite Mines, Kaliapani operated production without obtaining environmental clearance from Ministry of Environment and Forests, Govt. of India during the period from 2000-01 to 2009-10 as per the notice issued by the Collector and District Magistrate, Jajpur to the accused persons who were directly involved in the production of Chromite ore and thereby violating the provisions under the 1986 Act. The report of the Regional Officer, State Pollution Control Board (hereafter 'SPCB'), Odisha, Kalinga Nagar was attached to the complaint petition. The report of the Regional Officer, State Pollution Control Board (hereafter 'SPCB'), Odisha, Kalinga Nagar was attached to the complaint petition. It is stated in the complaint petition that the report of the Deputy Director, Mines (I/C), Jajpur Road, Jajpur and the Regional Officer, SPCB, Odisha, Kalinga Nagar were based on the report/information of the accused persons who were supposed to raise production and dispatch report to the concerned Mining Authority, SPCB and Indian Bureau of Mines. According to the complainant, production of any mineral without having environmental clearance amounts to violation of 1986 Act and EIA notifications of the years 1994 and 2006. EIA notification of 1994 mandates to obtain environmental clearance certificate as the project had more than 5 Hects. and EIA notification of 2006 indicates to obtain prior environmental clearance certificate for all major projects. The Forest and Environmental Department, Govt. of Odisha responding to the direction of the Govt. of India, Ministry of Environment and Forest requested the Collector, Jajpur vide letter dated 08.03.2013 to take legal action against the mining project of the accused persons. It is the further case of the complainant that from the official records, it was evident that accused CMD, OMC in connivance with the other accused persons produced Chromite without having environmental clearance from 01.04.2000 to 31.03.2010 as per EIA notifications as amended from time to time and thus they are liable to be punished under section 15 of the 1986 Act. 2 (c) C.C. Case No.12 of 2014 was filed against CMD, OMC, OMC House, Bhubaneswar as well as Asst. GM (Mines), DGM (Mines), AGM (Mines), Deputy Manager (Mines) and Asst. Manager (Mines) of Sukrangi Chromite Mines of OMC Ltd. on similar allegation that the Company which was having a leasehold area of 382.709 Hects. in Sukrangi Chromite Mines, Sukrangi operated production without obtaining environmental clearance from Ministry of Environment and Forests, Govt. of India during the period from 2000-01 to 2009-10 as per the notice issued by the Collector and District Magistrate, Jajpur to the accused persons who were directly involved in the production of Chromite ore and thereby violating the provisions under the 1986 Act. The report of the Regional Officer, State Pollution Control Board (hereafter 'SPCB'), Odisha, Kalinga Nagar was attached to the complaint petition. The report of the Regional Officer, State Pollution Control Board (hereafter 'SPCB'), Odisha, Kalinga Nagar was attached to the complaint petition. It is stated in the complaint petition that the report of the Deputy Director, Mines (I/C), Jajpur Road, Jajpur and the Regional Officer, SPCB, Odisha, Kalinga Nagar were based on the report/information of the accused persons who were supposed to raise production and dispatch report to the concerned Mining Authority, SPCB and Indian Bureau of Mines. According to the complainant, production of any mineral without having environmental clearance amounts to violation of 1986 Act and EIA notifications of the years 1994 and 2006. EIA notification of 1994 mandates to obtain environmental clearance certificate as the project had more than 5 Hects. and EIA notification of 2006 indicates to obtain prior environmental clearance certificate for all major projects. The Forest and Environmental Department, Govt. of Odisha responding to the direction of the Govt. of India, Ministry of Environment and Forest requested the Collector, Jajpur vide letter dated 08.03.2013 to take legal action against the mining project of the accused persons. It is the further case of the complainant that from the official records, it was evident that accused CMD, OMC in connivance with the other accused persons produced Chromite without having environmental clearance from 01.04.2000 to 31.03.2010 as per EIA notifications as amended from time to time and thus they are liable to be punished under section 15 of the 1986 Act. 3. The learned Magistrate after receipt of the complaint petition, registered it and perusing the petition and other connected documents filed with it, on being satisfied regarding existence of sufficient materials against the accused persons for commission of offence under section 15 of the 1986 Act passed the impugned orders in the two complaint cases. The learned Magistrate held that since in the accused column, only official designation of the accused persons were mentioned but it reveals that the occurrence took place in between 01.04.2000 to 31.03.2009, the persons who were holding office in the capacity of CMD, OMC, Asst. GM, DGM, AGM and Deputy Manager of the mines during the said period are to be arrayed as accused persons as the offence attract penal liability. GM, DGM, AGM and Deputy Manager of the mines during the said period are to be arrayed as accused persons as the offence attract penal liability. The learned Magistrate while issuing summons to the accused persons for their appearance issued letter to the complainant as well as CMD, OMC for furnishing the names of the accused persons who were holding the respective posts from 01.04.2000 to 31.03.2009. It appears that the accused persons i.e. Asst. Manager (Mines), OMC and CMD, OMC filed petitions under section 205 of Cr.P.C. with a prayer to dispense with their personal appearance which were allowed as per order dated 21.04.2014. Similar prayer was made by the other accused persons i.e. Asst. GM (Mines), DGM (Mines), AGM (Mines) and Deputy Manager (Mines), Kaliapani Chromite Mines which was allowed as per order dated 17.01.2015. 4. Mr. A.R. Dash, learned counsel appearing for the petitioner in both the cases relying upon the ratio laid down by the Hon'ble Supreme Court in the case of Aneeta Hada and Ors. Vs. Godfather Travels and Tours Pvt. Ltd., (2012) 52 OCR 254 (SC) contended that for maintaining the prosecution against accused persons, arraigning of the Company as an accused is imperative in view of section 16 of the 1986 Act. He further argued that like section 16 of the 1986 Act, there are pari materia provisions in section 141 of the Negotiable Instruments Act, 1881 (hereafter 'N.I. Act') and section 85 of the Information Technology Act, 2000 and the Hon'ble Supreme Court while analysing the provision under section 141 of the N.I. Act in the case of Aneeta Hada (supra) took similar view and further held that the other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. It was argued that on a plain reading of the complaint petitions, it would be evident that the main allegation is against the Company and the accused persons were working in the Company in different capacities and there is every likelihood that the Company would be arrayed as an accused during trial invoking power under section 319 of Cr.P.C. It was further argued that even though the accused persons against whom processes have been issued by the learned Magistrate have not come forward to challenge the impugned order but the petitioner cannot be said to be a complete stranger to the proceeding and therefore, the locus standi of the petitioner cannot be questioned. Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate on the other hand contended that since the accused persons against whom processes have been issued have not come forward to challenge the impugned orders rather they have taken steps through their counsel in the Court below, the legal question which is raised by the learned counsel for the petitioner can only be raised by those accused persons by filing appropriate applications and the petitioner Company on the anticipation that it would be arrayed as an accused in future, cannot be permitted to challenge the impugned orders. He relied upon the ratio laid down by the Hon'ble Supreme Court in the case of Janata Dal Vs. H.S. Chowdhary and Ors., 1991 3 SCC 756 . 5. Section 15 of the 1986 Act prescribes penalty for contravention of the provisions of the Act and the rules, orders and directions. The section starts with the word 'whoever'. There is no reason why the word 'whoever' in the section should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, 'whoever' means' 'any one who'. The meaning given in Webster Comprehensive Dictionary, International is 'any one without exception'. Therefore, the word 'whoever' must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word 'whoever'. Section 16 of the 1986 Act deals with offences by Companies and it reads as follows:- "16. The meaning given in Webster Comprehensive Dictionary, International is 'any one without exception'. Therefore, the word 'whoever' must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word 'whoever'. Section 16 of the 1986 Act deals with offences by Companies and it reads as follows:- "16. Offences by companies.- (1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- (a) "company" means anybody corporate, and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." Section 141 of the N.I. Act which deals with offences by companies also contains pari materia provision which is as follows:- "141. Explanation.- For the purposes of this section,- (a) "company" means anybody corporate, and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." Section 141 of the N.I. Act which deals with offences by companies also contains pari materia provision which is as follows:- "141. Offences by companies.- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: xxx xxx xxx xxx (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." In the case of Aneeta Hada (supra), the gravamen of the controversy was whether any person who has been mentioned in sections 141(1) and 141(2) of the N.I. Act can be prosecuted without the company being impleaded as an accused. The Hon'ble Court after analysing the provision and case laws held as follows:- "43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under section 141 of the Act, arraigning of a company as an accused is imperative. The Hon'ble Court after analysing the provision and case laws held as follows:- "43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself..........." In the case of Simranjit Singh Mann Vs. Union of India (UOI) and Ors., 1992 (4) SCC 653 , the Hon'ble Supreme Court formulated the following question, "Does a petitioner-third party who is a total stranger to the prosecution culminating in the conviction of the accused have any 'locus standi' to challenge the conviction and the sentence awarded to the convicts in a petition brought under Article 32 of the Constitution? If the answer to this poser is in the negative, this petition must fail on that preliminary ground." Relying on the ratio laid down in the case of Janata Dal Vs. H.S. Chowdhary and Ors., 1991 (3) SCC 756 , the Hon'ble Court held that the petitioner has no 'locus standi' to invoke the jurisdiction under Article 32 of the Constitution and rejected the petition. In the case of Janata Dal (supra), the background indicates that a public interest litigation was filed for quashing the first information report lodged by the C.B.I. on 22nd January 1990 based on the core allegation that certain named and unnamed persons had entered into a criminal conspiracy in pursuance whereof they had secured illegal gratification of crores of rupees from Bofors, a Swiss Company, through their agents as a motive or reward. The C.B.I had moved an application before the learned Judge, Delhi for the issuance of a Letter Rogatory/request to the Swiss authorities for assistance in conducting investigation, which request was conceded. An advocate Shri Harinder Singh Chowdhary filed a criminal revision application before the High Court of Delhi for quashing the F.I.R. and the Letter Rogatory on certain grounds. Several questions of law and fact were raised in support of the challenge. The High Court came to the conclusion that the said third party litigant had no 'locus standi' to maintain the action and so also the interveners had no right to seek impleadment/intervention in the said proceeding. Several questions of law and fact were raised in support of the challenge. The High Court came to the conclusion that the said third party litigant had no 'locus standi' to maintain the action and so also the interveners had no right to seek impleadment/intervention in the said proceeding. However, the learned Judge took suo moto cognizance of the matter and for reasons stated in his order directed issue of show cause notice to the C.B.I and the State as to why the F.I.R. should not be quashed? Besides the advocate litigant, certain political parties like the Janata Dal, the C.P.I. (Marxist), the India Congress (Socialist) and one Dr. P. Nalla Thampy Thera approached the Hon'ble Supreme Court questioning the High Court's rejection of their request for impleadment/intervention. It was in this context that the Hon'ble Court was required to examine the question whether third parties had any 'locus standi' in criminal proceedings. The Hon'ble Court came to the conclusion that the learned Judge in the High Court was right in holding that the advocate litigant as well as the interveners had no 'locus standi'. The relevant observations found in paragraph 26 of the judgment read as under: "26. Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants." In the case of Amanullah Vs. State of Bihar, 2016 (6) SCC 6995, it is held as follows:- "19. The term 'locus standi' is a Latin term, the general meaning of which is 'place of standing'. Concise Oxford English Dictionary, 10th Edn., at page 834, defines the term 'locus standi' as the right or capacity to bring an action or to appear in a court. The traditional view of 'locus standi' has been that the person who is aggrieved or affected has the standing before the court that is to say he only has a right to move the court for seeking justice. The traditional view of 'locus standi' has been that the person who is aggrieved or affected has the standing before the court that is to say he only has a right to move the court for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict rule with regard to 'locus standi', allowing any person from the society not related to the cause of action to approach the court seeking justice for those who could not approach themselves. Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in the CrPC. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. The focal point, here, is that if the State fails in this regard and the party having bonafide connection with the cause of action, who is aggrieved by the order of the court cannot be left at the mercy of the State and without any option to approach the appellate court for seeking justice." In the case of Ashok Kumar Pandey Vs. State of W.B., 2004 (3) SCC 349 , it was observed that an aggrieved party which is affected by any order, has the right to seek redress by questioning the legality, validity or correctness of the order, unless aggrieved party is a minor or insane person or is suffering from any other disability, etc. to question the decision. In the case of Ratanlal Vs. Prahlad Jat, 2017 (9) SCC 340 , it is held as follows:- "8. In Black's Law Dictionary, the meaning assigned to the term 'locus standi' is 'the right to bring an action or to be heard in a given forum'. One of the meanings assigned to the term 'locus standi' in The Law Lexicon of Sri P. Ramanatha Aiyar, is 'a right of appearance in a Court of justice'. The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the court, that is to say, he only has a right to move the court for seeking justice. The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in India and the Constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. It is now well-settled that if the person is found to be not merely a stranger to the case, he cannot be non-suited on the ground of his not having locus standi." 6. Keeping in view the ratio laid down in the above cited decisions and looking at the averments taken in both the complaint petitions, it appears that the though allegations are specific against the six accused persons who were holding different posts in the company either in Kaliapani Chromite Mines of OMC Ltd. or in Sukrangi Chromite Mines of OMC Ltd. but it cannot be lost sight of the fact that whatever illegalities they are alleged to have committed, it is for the sake of the company and not solely for their personal benefits. It is specifically mentioned that the accused no.1 in connivance with the accused nos.2 to 6 produced Chromite ore without having environmental clearance from 01.04.2000 to 31.03.2010 as per EIA notifications as amended from time to time and thus they are liable to be punished under section 15 of the 1986 Act. Section 15 of the Act states that for the failure or contravention of the provisions of the Act and the rules, orders and directions, apart from imposition of substantive imprisonment for maximum period of five years, sentence of fine can also be imposed. In none of the complaint petitions, the company has been arrayed as accused. Section 15 of the Act states that for the failure or contravention of the provisions of the Act and the rules, orders and directions, apart from imposition of substantive imprisonment for maximum period of five years, sentence of fine can also be imposed. In none of the complaint petitions, the company has been arrayed as accused. Keeping in view the ratio laid down in the case of Aneeta Hada (supra) and section 16 of the 1986 Act, I am of the humble view that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in section 16 of the 1986 Act which clearly speaks of commission of offences by the companies. The words "as well as the company" used in sub-section (1) of section 16 does not mean that a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. Applying the doctrine of strict construction, I am of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be held vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against the company, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. Therefore, without arraigning of the company as an accused, the prosecution is not maintainable against the other categories of offenders who were working in the company in different capacities on the touchstone of vicarious liability. There can be situations when the corporate reputation is affected when a director is indicted. Therefore, without arraigning of the company as an accused, the prosecution is not maintainable against the other categories of offenders who were working in the company in different capacities on the touchstone of vicarious liability. The petitioner company cannot be said to be a total stranger to the prosecution and that it has got no 'locus standi'. Merely because the accused persons against whom processes have been issued have not come forward to challenge the impugned order, this Court does not lack jurisdiction to take suo moto cognizance of the matter. In the case of Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, 2013 (3) SCC 330 , it is held (para 25) that the discretion vested in the High Court under section 482 of the Code of Criminal Procedure can be exercised suo moto to prevent the abuse of process of a Court, and/or to secure the ends of justice. In the case of Janata Dal (supra), the Hon'ble Supreme Court held that section 482 which corresponds to section 561A of the old Code and to section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex a liquid alicia concedit, conceder videtur id sine quo ipso, ess uon protest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. Thus the powers under section 482 of the Code are very wide in amplitude, yet they are not unlimited and have to be exercised sparingly and with caution. Courts must be careful to see that its decision in exercise of this power is based on sound principles. Thus the powers under section 482 of the Code are very wide in amplitude, yet they are not unlimited and have to be exercised sparingly and with caution. A duty is enjoined upon this Court to exercise the inherent powers by setting right the illegality in the order of the Court below as it is well settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allowing the illegality to be perpetuated. It is open to this Court to quash the proceedings as against the accused who have not chosen to invoke the inherent jurisdiction if it is found that the proceedings are not legally maintainable. If this Court notices a glaring illegality, it cannot remain silent and thereby perpetuating the illegality and miscarriage of justice. The parameters indicated in the case of State of Haryana Vs. Bhajan Lalm, 1992 AIR(SC) 604 relating to the scope of exercise of inherent powers under section 482 of the Code and the categories of cases where this Court may exercise such powers relating to the cognizable offences have been indicated and in the illustrative categories, it is stated, inter alia, that where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings, the powers can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Therefore, when it is brought to the notice of this Court by the petitioner by filing these criminal miscellaneous applications that without arraigning the company as an accused, the prosecution has been instituted against the accused persons in violation of the provision under 16 of the 1986 Act and the learned Court below has not only entertained the complaint cases but also passed the impugned orders and in view of the ratio laid down in the case of Aneeta Hada (supra), there is a legal bar to the institution and continuance of such proceedings without the company being arraigned as an accused, after noticing the glaring illegalities, I am of the humble view that the proceedings are not legally maintainable in the Court below and therefore, I am inclined to exercise the inherent powers suo moto to prevent the abuse of process of the Court and to secure the ends of justice and accordingly, direct that both the complaint case proceedings in 2 (c) C.C. No.10 of 2014 and 2(c) C.C. No.12 of 2014 pending in the Court of learned J.M.F.C., Jajpur Road and the impugned orders stand quashed. The complainant is however at liberty to file fresh complaint cases in accordance with law. In the result, the CRLMC applications are allowed.