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2023 DIGILAW 2891 (ALL)

Ajay Garg v. State of U. P.

2023-12-21

GAJENDRA KUMAR

body2023
JUDGMENT : Gajendra Kumar, J. 1. Since these applications arise out of same complaint case, they have been heard together and are being decided by a common order. Application u/s 482 Cr.P.C. No. 40122 of 2023 is being treated as a leading case. 2. Counter and rejoinder affidavits filed today are taken on record. 3. Heard learned counsel for the applicants, learned counsel for the opposite party no.2 and learned AGA for the State. 4. The present applications have been filed by the applicants with the prayer to quash the entire proceedings of Complaint Case No.31 of 2013, under Sections 43/44 of Water Pollution (Prevention and Control) Act, 1974, pending in the court of Special Judicial Magistrate, Pollution, Lucknow. 5. The genesis of the present applications arose when the opposite Party no.2 filed criminal complaint against the M/s Teerthanker Mahaveer University and other employees and directors of the same (hereinafter referred as "University"), before the learned Special Judicial Magistrate, Pollution, Lucknow with wholly false, concocted, and frivolous story. The university is a State minority University established by the society Teerthanker Mahaveer Institute of Management and Technology under the U.P. Act No. 30 of 2008, vide Government Order No. 154/Seventy-1-08-20 (13) / 2006 dated 06.02.2008, also all the construction of the University including the medical facilities in the same were constructed as per the norms of the concerned authorities, after taking the requisite permissions and sanction of plans. 6. It is submitted by the learned counsel for the applicants that the opposite party no. 2, (U.C. Shukla), is not authorized representative of U.P. Pollution Control Board (hereinafter to be referred as 'Board), who alleges that the University is knowingly discharging its noxious and polluted sewage, which met with the nala, which met with the septic tank stored in open pits which is likely to cause inland surface pollution by seepage, thereby causing continuous pollution on land in the stream. He further alleged that the University has not provided any sewage treatment plant to treat its waste in accordance with the standards laid by the board, and hence the accused has committed an offence u/s 24 and 25 of the Water Pollution (Prevention and Control) Act 1974 (hereinafter referred to as the "Act of 1974"). 7. Further submission is that neither the applicants nor the University has acted at that particular time, had committed any offence as alleged in the complaint. 7. Further submission is that neither the applicants nor the University has acted at that particular time, had committed any offence as alleged in the complaint. Further submission is that the university has followed all the rules and regulations prescribed by law at the time of its establishment. Further submission is that as per the procedure as well as the perusal of the above-mentioned Government Order, it is evident that there is no requirement to take prior permission of the U.P. Pollution Control Board. Further submission is that the University being an educational institution cannot be treated as an industry and the rules applicable to the industries are not applicable to the university, however as one of the officials of the board visited the University and directed the University to obtain permission from the board and further directed to establish sewage treatment plant, under bona fide and good faith the University made an application for grant of permission on 20.05.2011, however the permission was rejected by the Board on 21.09.2011 as there were certain inadvertent technical errors in the application, such as the Laboratory report of the water test was not provided and other such procedural formalities were also committed by the Board. 8. It is further submitted that the another application for grant of permission was made by the University on 12.06.2013 and in the said application, it had been specifically mentioned that the work of the sewage treatment plant has been initiated and the same would be concluded in the year 2014. Further submission is that in the said application, it had been specifically stated that the waste concerned was only generated from residential blocks where the staff and teachers lived and no other such noxious or dangerous substance was being released by the University. Further submission is that before filing of the present compliant, no show cause notice was ever served upon the university or its officials in accordance with Section 25(5) of the Act of 1974. Further submission is that a co-ordinate Bench of this Hon'ble Court observed that in case of S.K. Alagh vs. State of Uttar Pradesh reported as (2002) 5 SCC 662, whereby it was held that there is no such concept as vicarious liability under criminal law. Hence, a person cannot be held accountable for a criminal act, solely, on account of his designation in the company. Hence, a person cannot be held accountable for a criminal act, solely, on account of his designation in the company. In support of his submission, learned counsel for the applicants has placed reliance upon the judgement of Hon'ble Apex Court in the case of Paritosh Kumar Vs. Union of India and others 2014 (84) ACC 143. Later on, U.P. Pollution Control Board granted consent under Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 on 04.06.2020, as such, no offence has been committed by the applicants-University and in due course consent has been granted and obtained. 9. It is further submitted that the complaint has not been filed by the Board nor its authorized agent rather it has been filed by the one person called U.C. Shukla, who has not been authorized specifically for filing the tcomplaint on behalf of the Board. It is further submitted by the learned counsel for the applicants that no due enquiry under Section 202(1) Cr.P.C. has been conducted as is mandatory under the provisions of Cr.P.C. as the accused persons are residents of Moradabad district while the Court situated at district-Lucknow. The very cognizance order as well as summoning order is illegal and without jurisdiction. 10. On the other hand, learned AGA as well as the learned counsel for the opposite party no.2 have opposed the prayer and submitted that the applicant no.1 was working as a Director and applicant no.2 was working as a Chairman in the said company and all the other applicants in connected matters, who are in-charge of, and responsible to the University for the conduct of, the business of the University., therefore, they are vicariously liable for discharging the polluted sewage effluents on the open land for percolation and seepage to the nearby Nala and inland surface water, beyond the standards laid down by the Board, regarding which, the present complaint case filed. It is further submitted that complaint has been filed by the person duly authorized by the Board and due enquiry as contemplated under the provisions of Cr.P.C. has been made before summoning the accused/applicants. 11. I have considered the rival submissions made by the learned counsel for the parties as well as the case laws and have perused the record. 12. 11. I have considered the rival submissions made by the learned counsel for the parties as well as the case laws and have perused the record. 12. In this matter, as is evident from the record that the complainant Board has authorized its Officer to file the complaint on behalf of the Board and Dr. U.C. Shukla, Assistant Scientific Officer has been nominated by Member Secretary to file this complaint against the opposite parties. It is also evident that such authorization should be for a particular case and general authorization is not permissible. Dr. U.C. Shukla has not been specifically authorized by the Board as is apparent from the para 17 of the complaint which is as follow:-”that the complainant board has authorized its officer to file the complaint on behalf of the Board and Dr. U.C. Shukla, Assistant Scientific Officer has been nominated by Member Secretary, to file this complaint against the opposite parties.” 13. Section 49 Water (Prevention and Control of Pollution) Act, 1974 provides for cognizance of offence under the Act. 49. Cognizance of offences.-(1) No court shall take cognizance of any offence under this Act except on a complaint made by-- (a) a Board or any officer authorized in this behalf by it; or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorized as aforesaid 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.” 14. In the case of P. Pramila and others Vs. State of Karnataka and another, AIR 2015 SUPREME COURT 2495, it has been observed that the appellants engaged in the business of stocking iron ore, had allegedly violated certain norms prescribed under Section 22 of the Air (Prevention and Control of Pollution) Act, 1981. So Criminal proceeding had been initiated against them. They were challenged by application u/s 482 Cr.P.C., seeking quashing of proceeding on the ground of inadequate authorisation to file complaint. Hence, either the Board or the Chairman of the Board could have filed the complaints. 15. So Criminal proceeding had been initiated against them. They were challenged by application u/s 482 Cr.P.C., seeking quashing of proceeding on the ground of inadequate authorisation to file complaint. Hence, either the Board or the Chairman of the Board could have filed the complaints. 15. From the perusal of the records, it is natural therefore to conclude, that the complaint against the applicants was neither filed by the Board nor its Chairman, but was filed by the Assistant Scientific Officer, Regional Office Moradabad (Dr. U.C. Shukla), who was nominated by Member Secretary, which shows that the Board has authorized Member Secretary to file the complaint case under the Act but the Member Secretary instead of filing complaint himself has nominated Dr. U.C. Shukla to file the complaint. It is settled proposition of law that a delegated authority can not further delegate its power to some other person (Delegata potesta non potest deligari). As such, it appears that criminal complaint, filed by the opposite party no.2 against the M/s Teerthanker Mahaveer University and other employees and directors of the same (hereinafter referred as "University"), before the learned Special Judicial Magistrate, Pollution, Lucknow is without authority. Therefore, the conclusion is reached from the perusal of the record that the complaint has not been lodged by the competent and duly authorized person. 16. It is also evident from the record that the court concerned while issuing process u/s 204 Cr.P.C. has not complied with the mandatory provisions of Section 202(1) Cr.P.C. as amended in the year, 2005, with an object that the enquiry in relation to the accused person residing outside territorial jurisdiction has to be satisfactory and sufficient made, merely treating the documents filed by the complainant u/s 202 Cr.P.C. It cannot be said that enquiry as contemplated under Section 202(1) Cr.P.C. has been carried out. 17. In the case of Krishna Nand Shastri @ K.N. Shastri and another Vs. 17. In the case of Krishna Nand Shastri @ K.N. Shastri and another Vs. State of Jharkhand through its Inspector of Drugs Deoghar passed in Cr.M.P. No. 1525 of 2014, it has been observed that the person who is looking into the day to day affairs of the company and was responsible at the time of offence can only be prosecuted and in that view of the matter in absence of any averment to that effect vicarious liability upon the petitioners are not liable to be fastened upon them as there is no such averment in the complaint petition and the case of the petitioners is fully covered in view of the judgment rendered in the case of State of (N.C.T. of Delhi) v. Rajeev Khurana (supra). So far the record further suggest that in absence of any enquiry under Section 202 Cr.P.C the learned court has taken cognizance. Reference may be made to the case of Udai Shankar Awasthi v. State of U.P. and another, (2013) 2 SCC 435 . Paragraph no.40 of the said judgement is quoted below: "40. The Magistrate had issued summons without meeting the mandatory requirement of section 202 Cr. P.C though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C were amended vide Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases." 18. The Hon'ble Apex Court in the case of Odi Jerang Vs. Nabjyoti Baruah and other; 2023 Live Law (SC) 702 has held that “ in a case where one of the accused is a resident of a place outside the jurisdiction of the learned Magistrate, following the procedure under Section 202(1) Cr.P.C. is mandatory”. 19. The impugned order dated 08.05.2014 passed by the court below is reproduced here-in-under:- 20. Nabjyoti Baruah and other; 2023 Live Law (SC) 702 has held that “ in a case where one of the accused is a resident of a place outside the jurisdiction of the learned Magistrate, following the procedure under Section 202(1) Cr.P.C. is mandatory”. 19. The impugned order dated 08.05.2014 passed by the court below is reproduced here-in-under:- 20. Thus, from the order itself, it is apparent that the learned Magistrate has not postponed process as contemplated under Section 202(1) Cr.P.C., as the University is situated at Moradabad and all the other accused persons are shown to be residents of District-Moradabad, therefore, in this case the accused are residing at a place beyond the area in which the Court exercised its jurisdiction. The impugned order has been passed by the court situated at Lucknow. It is worth considering that there is no exception to Section 202(1) Cr.P.C. and in view of the matter even in the government complaint case, Section 202(1) Cr.P.C. is mandatory and it is admitted that applicants are stationed at Moradabad and seeing that the learned Magistrate was required to follow the mandatory provisions of Section 202(1) Cr.P.C., which has been amended by vide Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. 21. With cumulative effect of the above discussion and the analysis of the Court here-in-above, the entire criminal proceedings in connection with Complaint Case No.31 of 2013, under Sections 43/44 of Water Pollution (Prevention and Control ) Act, 1974, pending in the court of Special Judicial Magistrate, Pollution, Lucknow is, hereby, quashed against the applicants. 21. The applications are, accordingly, allowed. 22. A copy of this order be certified to the lower court forthwith.