The impugned order must demonstrate application of mind to the contents of the complaint, and the availability of an alternate remedy does not limit the availability of inherent powers under section 482 of Cr.P.C.

JUDGMENT

C.V. Bhadang, J -Rule, made returnable forthwith. The learned Government Advocate waives service on behalf of the respondents. Heard finally by consent of parties.

2. Both these petitions arise out of the order dated 13/11/2017 passed by the learned Judicial Magistrate First Class, Mapusa in Case No.AOA/663/P & CP Act/2017/C. The petitioners in Criminal Writ Petition No.69/2018, are accused nos. 1 and 2, while the petitioner in Criminal Writ Petition no.68/2018, is arrayed as the accused no.3 and is said to be the ''unit representative'', of the accused no.1. That is a complaint filed under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 (Air Act, for short) and Water (Prevention and Control of Pollution) Act, 1974 (Water Act, for short)

3. I have heard Shri Desai, the learned counsel for the petitioners and Shri Dangui, the learned Government Advocate for the respondents. Perused record.

4. On behalf of the petitioners, reliance is placed on the decision of the Supreme Court in the case of Anil Kumar and others Vs. M.K. Aiyappa and another , (2013) 10 SCC 705 and Rajendra Rajoriya Vs. Jagat Narain Thapak and others , (2018) AIR SC 1229, in order to submit that at the stage of issuance of process and taking cognizance the Magistrate is expected to apply mind and record reasons although such reasons may not be elaborate. It is submitted that in the present case, the impugned order is totally unreasoned. He also submits that the accused no.3, who is said to be a ''unit representative'', is not at all connected with the accused no.1/Establishment and he is not even an employee. It is submitted that thus, the accused no.3 cannot be vicariously made liable with the aid of Sections 47 of the Water Act and section 40 of the Air Act as the accused no.1 is a proprietorship concern.

5. The learned Government Advocate submits that the petitioners have an alternate remedy of filing revision application before the learned Sessions Judge. It is submitted that the ''unit representative'', was present during the inspection conducted by the respondent no.1. It is submitted that the proprietor and the ''unit representative'' would both be liable. It is submitted that the unit was being operated without licence or consent of the respondent no.1 under the Water Act and the Air Act. The learned Additional Government Advocate also points out that an order/direction under section 33-A of the Water Act and Section 31-A of the Air Act, was also issued to the accused nos.1 and 2. He, therefore, submits that the learned magistrate was justified in issuing process.

6. I have carefully considered the rival circumstances and the submissions made.

7. At the outset as held by the Hon''ble Supreme Court, in the case of Vijay and others Vs. State of Maharashtra and Others , (2017) AIR SC 397, the availability of an alternate remedy is not an absolute bar and would not limit the availability of the inherent powers under section 482 of Cr.P.C. The question whether such a petition could be entertained, essentially would depend upon facts and circumstances of each case. Here is a case where the impugned order lacks any reasons. It is now well settled that although the learned Magistrate is not required to record elaborate reasons at the stage of taking cognizance/issuance of process, the impugned order must demonstrate application of mind to the contents of the complaint. Reliance in this regard can be placed on the Division Bench judgment of this court, in the case of Nirmal Bang Securities Private Limited and others Vs. State of Maharashtra and others , (2017) AllMR(Cri) 4551. It is not necessary to multiply authorities on the point.

8. Considering the overall circumstances, in my considered view it would be appropriate that the Magistrate re-considers the question of issuance of process after affording an opportunity of hearing to the complainant. In that view of the matter, the following order is passed:

ORDER:

(i) The Crimina