Full Judgment Text
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CASE NO.:
Special Leave Petition (crl.) 3978 of 1999
PETITIONER:
U.P. POLLUTION CONTROL BOARD
Vs.
RESPONDENT:
M/S MOHAN MEAKINS LTD. AND OTHERS
DATE OF JUDGMENT: 27/03/2000
BENCH:
K.T. THOMAS & M.B. Shah
JUDGMENT:
THOMAS, J.
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River "Gomti" is a tributary of Ganga. It is a bane
that almost all rivers in India are now saturated with
pollutants and the holy river is not spared from that
malady. What causes greater concern to those for whom
rivers flowed sanctified waters, and to those, for whom
rivers supplied potable water, is the frightening gallop of
pollution level in recent decades. The measures evolved by
the Parliament to control the escalating poisoning of our
streams have not yielded the desired results due to a
variety of causes. The present is a case in which the trade
effluents discharged by an industrial unit of a premier
liquor processing company made the water in Gomti more
polluted to impermissible levels. So the State Pollution
Control Board (‘the Board’ for short) initiated proceedings
for prosecuting M/s Mohan Meakins Limited and its Directors
way back in 1983. Alas, the canoe remains at the starting
point itself in spite of lapse of long seventeen years till
now.
Though the trial court issued process against the
accused at the first instance, they desired the trial court
to discharge them without even making their first appearance
in the court. When the attempt made for that purpose failed
they moved for exemption from appearance in the court. In
the meanwhile the Sessions Judge, Lucknow (Shri Prahlad
Narain) entertained a revision moved by the accused against
the order issuing process to them and, quashed it on the
erroneous ground that the magistrate did not pass "a
speaking order" for issuing such summons.
The Chief Judicial Magistrate, (before whom the
complaint was filed) thereafter passed a detailed order on
25.4.1984 and again issued process to the accused. That
order was again challenged by the accused in revision before
the Sessions Court and the same Sessions Judge (Shri Prahlad
Narain) again quashed it by order dated 25.8.1984.
The Board moved the High Court in a revision against the
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said order. Though the motion was made in 1984 itself it
took fifteen years for the High Court to dismiss that
revision petition as per the order passed by a learned
Single Judge on 27.7.1999. The special leave petition to
appeal is filed in challenge of the said order. Special
leave granted.
We may point out at the very outset that the Sessions
judge was in error for quashing the process at the first
round merely on the ground that the Chief Judicial
Magistrate had not passed a speaking order. In fact it was
contended before the Sessions judge, on behalf of the Board,
that there is no legal requirement in Section 204 of the
Code of Criminal Procedure (For short the ‘Code’) to record
reasons for issuing process. But the said contention was
spurned down in the following words:
"My attention has been drawn to Section 204 of the Code
of Criminal Procedure and it has been argued that no reasons
for summoning an accused persons need be given. I feel that
under Section 204 aforesaid, a Magistrate has to form an
opinion that there was sufficient ground for proceeding and,
if an opinion had to be formed judicially, the only mode of
doing so is to find out express reasons for coming to the
conclusions. In the impugned order, the learned Magistrate
has neither specified any reasons nor has he even formed an
opinion much less about there being sufficient ground for
not proceeding with the case."
In a recent decision of the Supreme Court it has been
pointed out that the legislature has stressed the need to
record reasons in certain situations such as dismissal of a
complaint without issuing process. There is no such legal
requirement imposed on a magistrate for passing detailed
order while issuing summons vide Kanti Bhadra Shah vs.
State of West Bengal [2000(1) SCC 722]. The following
passage will be apposite in this context:
"If there is no legal requirement that the trial court
should write an order showing the reasons for framing a
charge, why should the already burdened trial courts be
further burdened with such an extra work. The time has
reached to adopt all possible measures to expedite the court
procedures and to chalk out measures to avert all roadblocks
causing avoidable delays. If a Magistrate is to write
detailed orders at different stages, the snail-paced
progress of proceedings in trial courts would further be
slowed down. We are coming across interlocutory orders of
Magistrates and Sessions Judges running into several pages.
We can appreciate if such a detailed order has been passed
for culminating the proceedings before them. But it is
quite unnecessary to write detailed orders at other stages,
such as issuing process, remanding the accused to custody,
framing of charges, passing over to next stages in the
trial."
(Emphasis supplied)
It was unfortunate that the Sessions judge himself did
not look into the complaint at that stage to form his own
opinion whether process could have been issued by the Chief
Judicial Magistrate on the basis of the averments contained
in the complaint. Instead the sessions judge relegated the
work to the trial magistrate for doing the exercise over
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again. After the Chief Judicial Magistrate passed the
second order issuing process, the Sessions judge quashed the
said order on the second occasion also and stated thus:
"Having scrutinized the array of accused persons in this
complaint, I have felt that since no specific role in the
flowing of the polluted effluents into the river Gomti has
been assigned to any of the present applicant Nos., 2 to 11,
the law laid down in the Delhi Municipal Corporation case
referred to above requires that the impugned order summoning
the present applicant Nos. 2 to 11 must be quashed."
Learned Sessions judge relied on the decision of this court
in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi
[1983 (1) SCC 1]. Though an attempt was made before the
Sessions judge to offset the impact of the said decision by
citing a later decision of this Court in Municipal
Corporation of Delhi vs. Purshotam Dass Jhunjunwala [AIR
1983 (1) SCC 9] it did not deter the Sessions judge from
quashing the order passed by the magistrate issuing summons
on the second occasion. Learned single judge of the High
Court who heard the revision confirmed the said order as per
the impugned judgment in which it is stated, inter alia,
thus:
"In the present case the revisionist has not been able
to show that the directors (opp. parties Nos.5 to 13) were
in charge of or responsible to the company for the conduct
of the business of the company. No effort was made at the
hearing before this Court to show that such allegations were
contained in the complaint filed by the revisionist."
In Municipal Corporation of Delhi vs. Ram Kishan
Rohtagi & ors. {1983 (1) SCC 1} cited by the Sessions
judge, and sought to be relied on here also by the learned
counsel for the respondents, a two Judge Bench of this Court
considered the validity of prosecution proceedings taken
under the Prevention of Food Adulteration Act. The Delhi
High Court had quashed the complaint filed by the Municipal
Corporation of Delhi against a company and its manager as
well as the directors, against whom the offence under
Section 7 read with Section 16 of the FPA Act was alleged.
On the factual position this Court noticed that "so far as
the Directors are concerned, there is not even a whisper nor
a shred of evidence nor anything to show, apart from the
presumption drawn by the complainant, that there is any act
committed by the Directors from which reasonable inference
can be drawn that they could also be vicariously liable." It
was only on the said fact situation that the complaint as
against the Directors was quashed. In Municipal Corporation
of Delhi vs. Purshottam Dass (supra) the same Bench of two
Judges pointed out the different factual position therein
that "a clear averment has been made regarding the active
role played by the respondents (the Directors of the
company) of the extent of their liability," and hence the
court declined to quash the complaint.
Neither of the above decisions has laid down a legal
position which can be of any use to the respondents in this
case for contending that the Directors cannot be prosecuted
for the offence alleged. In the complaint filed by the
appellant before the Chief Judicial Magistrate, the company
(M/s. Mohan Meakins Ltd.) has been arrayed as first accused
and the other persons who were arrayed as accused 2 to 10
were described as the Directors of the said company. The
11th person arrayed in the complaint as accused is described
as the Manager of the Company. The averments in the
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complaint show that the Distillery unit of the company at
Daltonganj, Lucknow, has been discharging noxious trade
effluents into the river Gomti and causing continuous
pollution of the river. It was further averred in the
complaint that on 19-9-1982, samples of trade effluents were
collected by the officers empowered in this behalf, from the
drain "just outside the plant inside the factory", and from
the irrigation plant out of which the effluents were pumped
into the river. When the samples were analysed in the
Industrial Toxicology Research Center, Lucknow, it was
revealed that the quality of effluents was beyond the
standard laid down for the purpose. Therefore, it is
alleged that the company has violated Section 24 of the Act
and thereby the company is guilty of the offence under
Section 43 of the Act.
Where an offence under the Act has been committed by a
company every person who was in charge of and was
responsible to the company for the conduct of the business
of the company is also made guilty of the offence by the
statutory creation. Any Director, Manager or other officer
of the company, who has consented to or connived in the
commission of the said offence, is made liable for the
punishment of the offence. This is clearly discernible from
Section 47 of the Act.
"47. Offences by companies.- Where an offence under
this Act has been committed by a company every person who at
the time the offence was committed was in charge of, and was
responsible to the company for the conduct of the business
of the company, as well as the company, shall be deemed to
be guilty of the offence and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing contained in this sub- section
shall render any such person liable to any punishment
provided in this Act if he proves that the offence was
committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section
(1), where an offence under this Act has been committed by a
company and it is proved that the offence has been committed
with the consent or connivance of or, is attributable to any
neglect on the part of, any director, manager, secretary or
other officer of the company, such director, manager,
secretary or other officer shall also be deemed to be guilty
of that offence and shall be liable to be proceeded against
and punished accordingly."
In the above context what is to be looked at during the
stage of issuing process is whether there are allegations in
the complaint by which the Managers or Directors of the
company can also be proceeded against, when the company is
alleged to be guilty of the offence. Paragraph 12 of the
complaint reads thus:
"That the accused persons from 2 to 11 are
directors/managers/partners of M/s. Mohan Meakins
Distillery, Daliganj, Lucknow, as mentioned in this
complaint are responsible for constructing the proper works
and plant for the treatment of their highly polluting trade
effluent so as to conform the standard laid down by the
Board. Aforesaid accused persons are deliberately avoiding
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to abide the provisions of sections 24 and 26 of the
aforesaid Act which are punishable respectively under
Sections 43 and 44 of the aforesaid Act, for which not only
the company but its directors, managers, secretary and all
other responsible officers of the accused company,
responsible for the conduct of its business are also liable
in accordance with the provision of the Section 47 of the
Act."
The appellant has further stated in paragraph 23 of the
complaint that "the Chairman, Managing Directors and
Directors of the company are the persons responsible for the
act and therefore, they are liable to be proceeded against
according to the law."
Shri P.Chidambaram, learned senior counsel who argued
for respondents made a fervent plea to rescue the Directors
of the company on the ground of lapse of a long time now
since the institution of the complaint. Lapse of seventeen
years is no doubt considerable, but the Board is not the
least to be blamed for it. Since it is not a pleasant task
to probe into the causes which contributed for such a long
delay we choose to refrain from doing that exercise.
Nonetheless, lapse of such long period cannot be a reason to
absolve the respondents from the trial. It must reach its
logical culmination. Courts cannot afford to lightly deal
with cases involving pollution of air and water. The
message must go to all concerned. The courts will share the
parliamentary concern on the escalating pollution level of
our environment. Those who discharge noxious polluting
effluents to streams may be unconcerned about the enormity
of the injury which it inflicts on the public health at
large, the irreparable impairment it causes on the aquatic
organisms, the deleteriousness it imposes on the life and
health of animals. So the courts should not deal with the
prosecution for offences under the Act in a casual or
routine manner. Parliamentary concern in the matter is
adequately reflected in strengthening the measures
prescribed by the statute. The court has no justification
for ignoring the seriousness of the subject.
We are, therefore, not inclined to accede to the plea
made by Shri Chidambaram on the ground of lapse of long
period now. Of course this lapse of long period is a good
reason for expediting the trial. Now the deck is clear and
hence the trial court can proceed with faster pace and
accelerated velocity.
If any of the accused applies for dispensing with his
personal presence in the court, after making the first
appearance, the trial court can exempt him from continuing
to appear in the court by imposing any condition which the
court deems fit. Such conditions can include, inter alia,
that a counsel on his behalf would be present when the case
is called, that he would not dispute his identity as the
particular accused in the case, and that he would be present
in court when such presence is imperatively needed.
Subject to the above observations, we set aside the
impugned judgment of the High Court as well as the order of
the Sessions Court. We direct the trial court to proceed
with the case in accordance with law and dispose it of as
expeditiously as possible.
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