Legality of complaints under environmental law hinges on proper delegation of prosecutorial authority.

O R D E R

The petitioner in Crl.R.P No.1940/2005 is a company incorporated under the Companies Act, 1956, engaged in the manufacture of Rayon Grade Pulp and Viscose Staple Fibre. The petitioners in Crl.R.P No.1922/2005 are the President and other managerial office bearers of the above company. They faced criminal prosecution as accused Nos.1 to 4 in C.C No.84/1998 of the Chief Judicial Magistrate Court, Kozhikode, for the commission of offence under Section 44 r/w Section 47 of the Water (Prevention and Control of Pollution) Act, 1974 (hereafter referred as ‘the Act’). The Trial Court convicted the above accused for the commission of the aforesaid offence, and sentenced accused Nos.2 to 5 (petitioners in Crl.R.P No.1922/2005) to simple imprisonment for one and a half years and fine Rs.5,000/- each with a default clause of simple imprisonment for one month. The Appellate Court confirmed the aforesaid conviction and sentence. Aggrieved by the above concurrent verdicts of the Courts below, the petitioners are here before this Court with these revision petitions.

2. The prosecution case is that the first accused company represented by the other accused, discharged trade effluents to the Chaliyar river, through an unauthorised hole on the side walls of the channel leading to the sump. It is alleged that the trade effluents so discharged by the accused were in violation of the standards prescribed by the Pollution Control Board in the consent order dated 22.08.1992 and the standards prescribed under the Environment (Protection) Rules, 1986.

3. In connection with the above allegation, a person by name A.K Hansaraj, the Environmental Engineer of the Kerala State Pollution Control Board, instituted the complaint representing the above Board. In the trial that followed, six witnesses were examined from the part of the complainant as PW1 to PW6, and 25 documents were marked as Exts.P1 to P25. The accused did not choose to adduce any defence evidence. It is after analysing the above evidence, that the learned Magistrate came to the conclusion that the petitioners committed the offence under Section 44 r/w Section 47 of the Act. Though the petitioners challenged the aforesaid verdict in appeal before the Sessions Court, Kozhikode, the learned Sessions Judge declined to interfere with the findings of the learned Magistrate. Accordingly, the appeals were dismissed confirming the conviction recorded and the sentence awarded by the learned Magistrate.

4. Heard the learned Senior Counsel for the revision petitioners, the learned Standing Counsel for the Kerala State Pollution Control Board, and the learned Public Prosecutor representing the State of Kerala.

5. One of the main contentions raised by the petitioners before the Trial Court as well as the Appellate Court was that the criminal prosecution was initiated against them by a person who was legally incompetent to represent the Kerala State Pollution Control Board as per the relevant provisions of law. It was argued before the Courts below that the criminal prosecution is inherently defective, since Section 49 (1) of the Act precluded the Court from taking cognizance of the offence, except upon a complaint made by the Board or any Officer authorised in this behalf by the Board. Thus, it was pointed out that the authorisation given to the Environmental Engineer by the Chairman of the Pollution Control Board, will not fulfil the requirement of (1) of the Act, which mandates the filing of a complaint by the Board or any Officer authorised by it. According to the petitioners, the prosecution ought to have been launched either by the Board or the Chairman of the Board, who was authorised vide Ext.P2 resolution of the Board, to initiate prosecu