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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Suraj Govindaraj, J.
Sri. B.V. Byre Gowda S/o Late B.N. Venkataramana Gowda – Petitioner
Versus
State of Karnataka Rep. By State Public Prosecutor And Ors. – Respondents
Criminal Petition No. 8067 of 2019
Decided On : 02-09-2022
AIR (prevention and control of pollution) Act 1981 - Section 37, 43, 15, 16, 21 and 22 - Water (Prevention and Control of Pollution) Act, 1974 – Section 49 – Criminal Procedure Code, 1973 - Section 482 - Pollution Control - Who could file a complaint on behalf of Pollution Control Board in terms of Section 43 and Section 15 of AIR (prevention and control of pollution) Act 1981 - Whether order of cognizance taken in present matter is proper and correct. [Para 9.9.]
Finding of the Court: A perusal of the Board resolution indicates that there is a condition and limitation imposed on delegatee exercising powers under resolution - In that without obtaining approval from Chairman, no such proceedings could be initiated even though delegate is otherwise or authorized to do so - Thus, Court is of considered opinion that approval of Chairman is not administrative decision but is a condition precedent and/or limitation imposed by Board on delegatee exercising power under Section 15 of AIR Act - In view of above, Court is of considered opinion that in situation as it stands in terms of resolution, DEOs and AEOs of regional office could initiate criminal proceedings against defaulter subject to obtaining prior approval from Chairman on a case to case basis - Without such approval of Chairman, no such proceedings could be initiated - This Court in several matters including Criminal Petition as detailed out manner in which Magistrate is required to take cognizance - Said order of cognizance does not indicate any application of mind on part of Magistrate as regards complaint and cognizance thereof - It is required of all Magistrates to follow dicta laid down by Apex Court and this Court in various matters - Registrar Judicial is directed to forward a copy of order passed in Criminal Petition to all Magistrates and/or Judicial officers dealing with Pollution control matters so as to enable them to follow dicta laid down by various courts including Apex Court in matters of this kind - Chairman of Board is also directed to place on record topics that would be covered in such workshops along with material that would be distributed in said workshops within three months from date of receipt of this order - Considering verification of complaint made by DEO is contrary to applicable law, Chairman is also directed to initiate action against said DEO, as also any other official who is responsible for filing such a defective complaint which has resulted in its quashing by this Court.
Result: Petition allowed.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs;
2. Examine the same and to quash the order dated 25.07.2015 passed in C.C.No.667/2015 by the Principal Civil Judge and J.M.F.C., Hosakote, Bengaluru Rural in taking cognizance of the offence punishable under section 37 of the AIR (prevention and control of pollution) Act 1981 vide Annexure-B by allowing this criminal petition with exemplary costs.
3. To issue such other direction or to issue such other orders as deemed fit in the peculiar facts and circumstances of the case.
2. Respondent No.2 represented by Deputy Environment Officer (DEO) has filed criminal proceedings in Crime No.667/2015 against the petitioner under Section 200 of Cr.P.C. for offences punishable under Section 21 and 22 of the Air (Prevention and Control of Pollution Act) 1981 [‘Air Act’ for short] read with Section 37 of the Air Act.
3. Learned Prl. Civil Judge and JMFC, Bangalore Rural upon presentation of the said complaint on 25.07.2015 noting that the complainant was present, heard the counsel, took cognizance and issued summons to the accused returnable by 3.10.2015. It is aggrieved by the same, the petitioner is before this Court.
4. Sri.Shashi Kiran Shetty, learned Senior counsel for the petitioner would submit :
4.2. The same is reiterated by the letter issued by the member Secretary of the Board dated 24.03.2007 produced at Annexure-H along with the complaint which also requires that before initiation of any criminal proceedings, the concerned officer has to get approval from the Chairman.
4.3. The verification to the complaint is only as regards para 1 to 7 and there is no verification of para 8 and 9 of the complaint. All the allegations against the petitioner being made in para 8 thereof, there being no verification of para 8 which ought to have been taken into consideration by the Magistrate before taking cognizance. Same not having been done, the order of cognizance is required to be quashed.
4.4. Lastly, he submits that the order of cognizance itself is completely bereft of reasons and does not comply with the requirements of law as laid down by this Court from time to time, for example in Criminal Petition No.101728/2017 (M/s Dream Logistics Company vs. Karnataka State Pollution Control Board) more particularly para 8.14 and 8.15 thereof which are reproduced hereunder for easy reference :
8.14. The Magistrate ought to have referred to and recorded the reasons why he believes that an offence is made out so as to take cognisance more so on account of the fact that it is on taking cognisance that the criminal law is set in motion insofar as accused is concerned and there may be several cases and instances where if the Magistrate were to apply his mind, the complaint may not even be considered by the said Magistrate let alone taking cognisance and issuance of summons.
8.15. In view of the above, I am of the considered opinion that the order dated 27.07.2015 taking cognisance is not in compliance with applicable law and therefore is set aside. The matter is remanded to the Magistrate to consider and pass a reasoned order before taking cognisance and issuance of summons.
4.5. He, therefore, submits that there being no application of mind by the learned Magistrate, the order of cognizance is required to be quashed.
5. Sri.Gururaj Joshi, learned counsel for Pollution Control Board would submit as under:
Section 43 of AIR Act requires that no Court shall take cognizance of any offence except on a complaint filed by the Board or any officer authorised in that behalf.
Cognizance of environmental protection act offenses can only be taken on a complaint made by the Central Government or an authorized person, as required by the relevant acts.
Criminal proceedings initiated without required chairman approval render the complaint a nullity, thereby precluding judicial cognizance under the Air Act.
The decision to prosecute for contravening the provisions of the Act is the power of the State Board alone, and the non-production of the resolution and/or decision of the Board to prosecute the resp....
The Magistrate's satisfaction based on documentary evidence is sufficient for taking cognizance of the offence, and the complaint need not specifically mention all offences made out by the facts.
The complaint under the Environment (Protection) Act can be filed by authorized officers of the State Pollution Control Board, and the absence of explicit authorization resolution does not invalidate....
Legality of complaints under environmental law hinges on proper delegation of prosecutorial authority.
Cognizance of offences under the Water Act requires strict adherence to the 60-day notice provision, failing which proceedings may be quashed.
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