Allahabad High Court
Nagarajan Krishna Murthy Dire. Geo/. ... vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 27 January, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 06.01.2023 Delivered on: 27.01.2023 Court No. - 14 Case :- APPLICATION U/S 482 No. - 67 of 2023 Applicant :- Nagarajan Krishna Murthy Dire. Geo/. Pvt. Ltd. Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Govt. U.P. Civil Secrt. Lko. And Another Counsel for Applicant :- Rajendra Kumar Dwivedi Counsel for Opposite Party :- G.A.,Ashok Kumar Verma Hon'ble Suresh Kumar Gupta,J.
1. Heard Mr. Vivek Raj Singh, learned Senior Advocate assisted by Mr. Rajendra Kumar Dwivedi and Mr. Subhash Gulati, learned counsels for the applicant, learned AGA and Mr. Ashok Kumar Verma, learned counsel appearing for U.P. Pollution Control Board and perused the material available on record.
2. By means of the instant application under Section 482 Cr.P.C., the applicant has challenged the proceedings of Complaint Case No. 102 of 2021 "U.P. Pollution Control Board Vs. M/s L&T Geo Structure through its Directors" pending in the Court of Learned Special Judicial Magistrate Pollution/CBI (Water Air Pollution Control Lucknow) Lucknow, as well as the impugned summoning order dated 29.03.2022 passed by the Court of learned Special Judicial Magistrate, Lucknow in the above-mentioned Complaint Case No. 102 of 2021, whereby the Petitioner has been summoned as an accused for commission of offence under Sections 37 of Air (Prevention and Control of Pollution) Act, 1981 (herein referred to as "the Act, 1981").
3. Learned counsel for the applicant submits that during pendency of the present proceedings, Subbaiya Kanappan, Director of L&T Geo Structure Pvt. Ltd. (in short 'Company') was arraigned as a co-accused in the matter, passed away on 25.4.2020. So the complaint case against him stands abated.
4. Learned counsel for the applicant further submits that the complaint which has been filed by the respondents, does not attribute any specific role. The applicant has been arraigned as an accused merely because he is one of the Directors of the Company. It is an admitted fact that at the time of inspection at the site of the project, only Mr. Ankur was present. It is further submitted that a Project Manager for M/s Panki Thermal Power Plant was appointed by the Company and power of attorney was executed in favour of Praveen Pratap Singh. In fact, the Bharat Heavy Electricals Limited (BHEL) was the main contractor which had been awarded the contract by UPRVUNL for the entire project of establishing the 1x660 MW Units at Panki on EPC (Engineering, Procurement, and Construction) basis. Thereafter, the BHEL had engaged the services of applicant's Company for carrying out the specialized activity of Pot Pilling and Pedestal work for their Project. It is further submitted that the responsibility of seeking requisite permission from the concerned Board i.e. UPPCB under section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and other statutory compliances like installment of PTZ (Pan Tilt Zoom Camera) and providing Dust Control Audit on the portal of Respondent/Complainant's Board was primarily vested with UPRVUNL being the Project proponent or BHEL being the Main Contractor.
5. It is further submitted that no communication/letter was ever sent to the Company or to its Directors/officials including the Project Manager posted at the Panki Plant for ensuring any statutory compliances in relation to the said specialized works. It is also submitted that being the Director of the Company, the applicant was neither posted at the Project site nor has participated in the day-to-day activities carried out by the Company at the Project site and, therefore, he cannot be held vicariously liable for the offence allegedly committed by the Company. The role of the applicant in the capacity of a Director has always been at a policy-making level and governance only. Most of the executive powers to run the company's business and visit performance of different functions have been delegated to duly authorized senior officials/engineers/project managers appointed by the Company.
6. It is further submitted that the respondent in exercise of its power under Section 31-A of the Act, 1981, the respondent-Board issued certain directions in the form of an advertisement in the Daily Newspaper for installing the PTZ (Pan Tilt Zoom) camera and provide data of Dust Control Audit on the portal of the respondent-Board. Thus the direction issued by way of a daily newspaper is not only arbitrary but in gross violation of the procedure as prescribed under Section 31-A of the Act, 1981.
7. Learned counsel for the applicant further submitted that as per provision of Section 31 of the Act, 1981 the Board may issue directions in writing to any person, official or authority and such person, official or authority shall be bound to comply with such directions but no such directions or any written notice was issued to the applicant's Company. But the learned Special Judicial Magistrate, Lucknow passed the summoning order without application of judicial mind.
8. It is further submitted that the provisions of Section 202 Cr.P.C were amended vide Amendment Act 2005, making it mandatory to conduct an enquiry/ investigation and postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against accused before issuing summons in such cases. As such, there is a legal impediment in the matter inasmuch as provision of section 202(1) Cr.P.C which are mandatory in nature, have not been complied with thereby rendering the summoning order bad in law. In support of his submissions, he has relied on the judgement of the Apex Court in the cases of Vijay Dhanuka and others Versus Najima Mamtaj and others (2014)14 SCC 638 and National Bank of OMAN Versus Barakara Abdul Aziz and Another reported in (2013) 2 SCC 488, in which the Apex Court had been pleased to discuss the requirements spelt out in Section 202 Cr.P.C. and held that the same were mandatory in nature.
9. Learned counsel for the applicant has submitted that the Special Judicial Magistrate failed to conduct even a basic preliminary inquiry in order to ascertain the roles and duties of the individual accused persons before mechanically taking cognizance and summoning the person arrayed as accused in the complaint filed by Respondent No. 2.
10. Thus, learned counsel for the applicant has submitted that the proceedings is nothing but abuse of process of the court and he prays for quashing the complaint case.
11. In support of his submissions, the learned counsel has relied upon the judgement of the Apex Court in the case of State (NCT of Delhi) v. Rajiv Khurana, (2010) 11 SCC 469 : (2011) 1 SCC (Cri) 195 : 2010 SCC OnLine SC 816, the relevant paragraphs of which are being reproduced hereunder:
"16. In K.K. Ahuja v. V.K. Vora [(2009) 10 SCC 48 : (2010) 2 SCC (Cri) 1181] this Court observed that: (SCC p. 60, para 24) "24. ... the averment in a complaint that an accused is a Director and that he is in charge of and is responsible to the company for the conduct of the business of the company, duly affirmed in the sworn statement, may be sufficient for the purpose of issuing summons to him. But if the accused is not one of the persons who falls under the category of ''persons who are responsible to the company for the conduct of the business of the company' ..., then merely by stating that ''he was in charge of the business of the company' or by stating that ''he was in charge of the day-to-day management of the company' or by stating that ''he was in charge of, and was responsible to the company for the conduct of the business of the company', he cannot be made vicariously liable under Section 141(1) of the Act."
17. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasise that in the case of non-Director officers, it is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable."
12. Learned counsel for the Board and learned AGA have vehemently opposed and submitted that Prima facie, there is no illegality or irregularity in the order passed by the Magistrate against the applicant. as per section 40 of the Act, 1981, if the offence has been committed by a company, then the company through its director is also responsible for day to day affairs. The Board in exercise of its power may issue a direction in writing in presence of the officer or authority and such person or authority shall be bound to comply such order. Learned counsel for the Board further submitted that the public notice was circulated by newspaper to all the industrial units in certain designated districts of U.P. to obey the directions, but the the applicant's Company failed to follow the directions issued by the Board. By means of public notice, no one can ignore the directions issued by the Board and in that notice which was issued to all the constructions units, it was clearly directed that all the industrial construction units would upload the dust control audit and also instal Pan Tilt Zoom Camera at construction units till 10.10.2020. The inspection was conducted by the officials of the Board on 24.12.2020 in industrial plants in presence of Mr. Ankur representative of the company and the Board found that the applicant's Company failed to comply with the directions. Since the applicant is the director of the Company, he could not absolve from his liability. In support of his submissions, the counsel for the Board submitted that as per provision of Section 40 of the Act, 1981 all the directors of the company are collectively responsible. It is also submitted that during inspection, no Pant Tilt Zoom camera was found. Even dust control audit was not uploaded on the portal of the Board by the Company.
13. The learned counsel for the Board has placed reliance upon the judgement rendered in the case of U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi and Another, Criminal Appeal No. 2019 of 2008 arising out of SLP (Crl.) No. 1660 of 2005, decided on 12.12.2008. On the strength of this case, the learned counsel for the Board has submitted that the applicant as director would be responsible for the alleged offence, the relevant paragraphs of which read as under:
"19) U.P. Pollution Control Board vs. Mohan Meakins Ltd. and Others, (2000) 3 SCC 745 is a case filed by the very same appellant- U.P. Pollution Control Board and in similar circumstances this Court interfered with the order of the High Court as well as the order of the Sessions Court quashing the similar complaint. In the said case, the Board initiated proceedings for prosecuting Mohan Meakins Ltd and its Directors for discharging trade effluents in the river Gomti which is a tributary of the Ganga. The learned trial Judge on satisfying the averments in the complaint of the Board issued process against the accused at the first instance. The respondents/Company and its Directors desired the trial Court to discharge them without even making their first appearance in the Court. When the attempt made for that failed, they moved for exemption from appearance in the Court. In the meanwhile, the Sessions Judge, Lucknow 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 CJM before whom the complaint was filed thereafter passed a detailed order on 25.04.1984 and again issued process to the accused. The order was again challenged by the accused in revision before the Sessions Court and the same Sessions Judge again quashed it by order dated 25.08.1984. The Board moved before the High Court in a revision against the said order. Though the revision was moved in 1984 itself it took 15 years for the High Court to dismiss the revision petition as per the order passed by a learned Single Judge on 27.07.1999. Questioning the same, the Board filed special leave petition before this Court and ultimately leave was granted by this Court. It is useful to refer the facts and other details stated in the complaint as noted by this Court. Thomas, J. (as he then was) speaking for the Bench in paras 10 and 11 observed thus:-
10. ... ... ... In the complaint filed by the appellant before the Chief Judicial Magistrate, the Company (M/s Mohan Meakins Ltd.) has been arrayed as the 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 complaint show that the Distillery Unit of the Company at Daliganj, Lucknow, has been discharging noxious trade effluents into 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 Centre, 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.
11. 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 Court has also noted further allegations in the complaint against Managers or Directors of the Company which are as under:-
"12. 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. Para 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 to the standard laid down by the Board. Aforesaid accused persons are deliberately avoiding to abide by 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 Section 47 of the Act."
The appellant has further stated in para 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".
Taking note of the averments in the complaint against the Directors, Managers and the ingredients of Section 47 of the Act, this Court declined to accept the reasoning of the High Court and Sessions Court for quashing the complaint thereby set aside both the orders and directed the trial Court to proceed with the case in accordance with law.
20) In the case on hand which is also similar to Mohan Meakins Ltd. had commenced its journey in the year 1985, nonetheless lapse of such long period cannot be a reason to absolve the respondents from the trial. In a matter of this nature, particularly, when it affects public health if it is ultimately proved, courts cannot afford to deal lightly with cases involving pollution of air and water. The message must go to all concerned persons whether small or big that the courts will share the parliamentary concern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment. Those who discharge noxious polluting effluents into streams, rivers or any other water bodies which inflicts on the public health at large, should be dealt with strictly de hors to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the courts should not deal with the prosecution for offences under the pollution and environmental Acts in a causal or routine manner.
21) It is our endeavour to point out that the High Court has quashed the complaint arising in an environmental matter in a casual manner by exercising power under Section 482 of the Cr.P.C. This Court has held exercise of power under Section 482 of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e. (a) to give effect to an order of the Court; (b) to prevent abuse of the process of the Court; (c) to otherwise secure the ends of justice. It is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. To put it clear, it is the function of the trial Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Crl. Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal."
14. Submission of the learned counsel for the Board is that Section 40 of the Act, 1981 all the directors of the Company are collectively responsible for conduct of the business of company. Section 40 of the Act, 1981 is verbatim to Section 47 of Water (Prevention and Control of Pollution) Act, 1974. For the ready reference Section 40 of the Act, 1981 is quoted hereunder:
"40. Offences by companies.--(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly 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."
15. Since public notice was issued to all the industries emanating air pollution situated in 16 cities of U.P. and the applicant's company is also bound to follow the directions issued by the Board. But the Company failed to perform the directions issued by the Board. Thus in my considered opinion, since a public notice was issued by the Board so it is the bounden duty of the applicant's Company and its director to comply such directions which was issued by the Board.
16. Keeping in view of the judgement of the Apex Court in U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi (supra) and considering the provision of Section 40 of the Act, 1981 director of the company could not be absolved from the liability. Although in this complaint, project manager incharge of the construction work, who was present at the site at the time of inspection was also responsible but no prosecution was launched by Board against him.
17. So far as quashing of entire proceedings is concerned, from the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicant. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge according to the provisions prescribed in Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court.
18. So far as the cognizance and summoning order passed by the learned trial court is concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Every aspect is touched by learned trial court. So, the cognizance and summoning order is perfectly legal and there is no occasion to quash the same.
19. The prayer for quashing the impugned summoning order as well as impugned proceedings is refused.
20. Accordingly, the present application U/s 482 CrPC is rejected.
Order Date :-27.1.2023 Shravan