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PATNA HIGH COURT
S.S.Sandhawalia, P.S.Sahay and S.Shamsul Hasan JJ.
Mahmud Ali
Versus
State Of Bihar
Criminal Miscellaneous No. 5945 of 1983 ;
Decided On : NOVEMBER 28, 1985
Water (Prevention & Control or Pollution) Act, Sec. 47 (1) - Provisions in two parts - The first part makes the company liable on an allegation or proof of the offence - The Second part makes the person incharge of for the conduct of its business - By proviso the prosecution has got to establish the actual commission of the crime by the person incharge of and responsible to the company for it business - once the offence is proved against the company - Such person may establish and prove that the offence was committed in total absence of his knowledge or his diligent prevention thereof ….Evidence has not to be pleaded and hence it is not essential to plead in the complaint petition that he Person was incharge and responsible to the conduct of the business of the company - A managing Director of the business a company and equally a statutory liability to company for responsible conduct of its business - The description is enough to proceed against the Managing Director in absence of the actual words used in provision. (Paras 6, 7, 9 & 10)
Water (Prevention & Control of Pollution) Act, Sec. 47(2) - (Per majority S.S. Sandhawalia, C.J. & P.S. Sahay, J.) - Provision is wider and overrides Section 47(1) - It fastens liability on a much larger class of persons, like Directors, Managers or even other officers of the company when the commission of the offence is establishment against the company having been done with consent, connivance or neglect on their part - Sub-section (1) dials with persons who are directory incharge of and responsible to the company - Sub-section (2) dials with all persons of the class when the commission of the offence is established to have been done with the consent, connivance or neglect of such persons - Subsection (2) may come into play during the trial or even at its conclusion when it is proved that the offence had been committed with the consent, connivance or neglect of the principal officer - The Subsection envisages a rule of evidence as will as a substantive section for punishment - The rule of evidence or substantive section for a guilty person need not be placed in the complaint or the first information report - This subsection applies independently and notwithstanding anything contained in subsection (1) - The rule of proving the offence beyond reasonable doubt has been slightly diluted. (Paras 13 to 15A)
(Cr. Misc. nos. 1061 & 164 of 1967 Dt.25.4.1968; Cr. Misc. no. 902 of 168 dt.13.11.1968; Cr. Misc. no. 1089 of 1969 dt.16.1.1969; 1970 BLJR 969; 1971 BLJR 1005; 1982 BLJR 678; 1983 BLJ 25 & Cr. Misc. no. 7555 of 198 dt.6.4.1983 over ruled)
(Per minority S.S. Hasan, J.) - Section 49 of the Act requires a complaint to be filed for initiation of a proceeding for trial - complaint as defined in section 2 (d) Cr. P.C. or final from envisaged under section 173 Cr. P.C. requires statement of facts constituting the indictment which if proved would result in conviction - The fact of involvement of the person and the manner in which he is being prosecuted has to be pleaded - The person proceeded must know what was his role in the commission of the offence - Mere description by the designation is not enough - A person may be involved both vicariously and directly and he may prove that he had not consented nor connived nor was negligent yet he can be punished for vicarious liability - The rule of proving the offence beyond reasonable doubt is not diluted. (Paras 24, 26, 28 & 29)
Code of Criminal Procedure, Sec. 319 - (Per S.S. Hasan, J.) - The stage of indictment and cognizance are entirely separate from an action under the present Section - Before taking cognizance court has to see whether an offence has been made out or not whereas under this section the court has to see whether there is evidence appearing against the person concerned to justify such an action - Evidence means oral and documentary proof of a matter which a party wishes to establish - In Criminal trial evidence must include all the facts on the basis of which prosecution seeks conviction of an accused - If a witness states what he ought to have stated in the complaint or first information reports, it would be insufficient for taking cognizance of the offence and would be inadequate to summon a person - Minute particular parts of allegation need not be stated in the complaint yet the facts that are core of the indictment and essential of the offence must be set out. (Paras 30 & 32)
S.S.SANDHAWALIA, J.
1. The three significant issues which have come to the fore in this reference to the Full Bench deserve a somewhat precise formulation in the following terms :-
(i) Whether S.47(1) of the Water (Prevention and Control of Pollution) Act, 1974, necessarily mandates the incorporation of the words "he was in charge of, and was responsible to the company for the conduct of the business of the company" in all complaints against a Chairman, Managing Director, or General Manager of the Company for offences in contravention of the said Act?
(ii) Whether S.47(2) of the Act aforesaid inflexibly mandates the incorporation of the allegation that the offence was committed with the consent or connivance or was attributable to the neglect on the part of the Chairman or Managing Director or General Manager of the Company in the complaint itself?
(iii) Whether 1971 BLJR 1005 (R. N. Dutta V/s. State) and a long line of precedent taking a similar view both earlier and subsequent thereto with regard to the pari materia provisions of S.10 of the Essential Commodities Act lay down the law correctly?
2. The facts giving rise to the issues aforesaid are not in serious dispute and lie in a narrow compass. The Bihar State Water Pollution Control and Prevention Board (hereinafter referred to as the Board) had instituted a complaint in the Court of the Chief Judicial Magistrate, Gopalganj, on the 9th May, 1981, against M/s. M. A. Paper and Card Board Factory (Pvt.) Limited, Sasamusa, District Gopalganj, for offences punishable under Ss.41 and 44 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Act), for the contravention of Ss.20(3), 24, 25 and 26 thereof. The primal charge against the accused company was that it was discharging vast masses of polluted water and other trade effluents from its paper factory in river "Daha" without the consent of the Board and was causing great and grave environmental problems to the society at large and to the inhabitants of the surrounding environment. By order dt. 15th May, 1981, the Chief Judicial Magistrate took cognizance of the offences under Ss. 41 and 44 of the Act and transferred the case for trial to Shri B. K. Sharma, Judicial Magistrate, 1st Class, Gopalganj. During the course of the trial, P.W. 2, Anirudh Narain Jamuar, on 13th Feb., 1982 and later on the 30th July, 1982 (vide Annexure-3 to the petition) deposed in Court that petitioner Mohmud Ali was the Managing Director in charge and responsible to the Company for the conduct of the business both at the time of commission of the offence and at the time of his deposition. On the firm basis of the said categoric statement, the prosecution filed a petition (Annexure-4) that Mohmud Ali, the petitioner, being the Managing Director of the Factory, was equally responsible and liable under S.47 of the Act for the offence and, therefore, prayed for his summoning to stand trial therefor. By the impugned order dated the 8th of July, 1983, the learned Judicial Magistrate issued process against the petitioner. Aggrieved thereby the present petition for quashing the issue of process against the petitioner has been preferred. The primal ground on which it is rested is that the complaint had not expressly incorporated within it, the words that the petitioner was in charge and/or responsible to the Company for the conduct of the business of the Company. The further grievance made out is that neither in the complaint nor in the evidence of P.W.2, specific allegation has been levelled that the offence was committed either with the connivance or consent of the petitioner or was attributable to any neglect on his part.
3. This case orginally came up for admission before my learned Brother S. Shamsul Hasan, J. and at that very stage he expressed his disagreement with the decision in Cr. Misc. No. 7555 of 1982 decided on 6th April, 19/83 and referred the matter to a Division Bench. Before the Division Bench p
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