Jharkhand High Court
Prabhat Kumar Choubey vs The State Of Jharkhand on 11 November, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
-1- Cr.M.P. No. 312 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 312 of 2017
1. Prabhat Kumar Choubey
2. Gaurav Lata
3. Sujit Kumar Mallik @ Sujit Mallik
4. Jawahar Lal Vig
5. Sarabjeet Singh
6. Manoj Kumar Sinha
7. Anil Kumar Lal
8. Shankar Lal Agarwal
9. Vijay Kumar Mittal
10. Shivjee Singh
11. Shambhu Sharan Sharma ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Mr. Suresh Paswan, working for gain as
Regional Officer, Jharkhand State Pollution Control Board,
Adityapur, Seraikella-Kharsawan. ..... ... Opposite Parties
with
Cr.M.P. No. 17 of 2017
1. Hemant Goyal
2. Punit Gupta ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Mr. Suresh Paswan, working for gain as
Regional Officer, Jharkhand State Pollution Control Board,
Adityapur, Seraikella-Kharsawan. ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. N.K. Pasari, Advocate.
: Mr. Naveen Toppo, Advocate.
: Mr. Gaurav Kaushalesh, Advocate.
For the State : Mrs. Lily Sahay, A.P.P.
: Ms Nehala Sharmin, Spl.P.P.
For the O.P. No. 2 : Mr. Rahul Saboo, Advocate.
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07/ 11.11.2022 Heard Mr. N.K. Pasari, learned counsel appearing for the
petitioners, Mrs. Lily Sahay, learned A.P.P. appearing for the State and Mr. Rahul Saboo, learned counsel appearing for the O.P. No. 2.
2. In both these petitions common question of fact as well as order of taking cognizance are under challenge, that's why both the petitions are heard together with the consent of the parties.
3. Both these petitions have been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 25.04.2017, in connection with Chandil-Chowka P.S. Case No. 72 of 2016 corresponding to G.R. No. 1288 of 2016, by which, cognizance for the offence under Section 37 of Air (Prevention & Control of Pollution) Act, 1981 read with Section 277, 278 and 34 of the Indian Penal Code has -2- Cr.M.P. No. 312 of 2017 been taken against the petitioners, the case is pending in the court of learned Sub-Divisional Judicial Magistrate, Seraikella.
4. The prosecution was launched, alleging therein that on 06.12.2016, at and around 11:30 A.M., NH-33 was obstructed due to pollution being spread through the industries situated across that area and said obstruction was headed by the Local Vidhayal, Sadhu Charan Mahto, as a consequence of which a committee was constituted to keep a check on the pollution and it was found that:-
(a) M/s Chandil Industries Pvt. Limited - Online Monitoring System suggested that SPM of the industry is 5 mg/nm in excess of fixed standard and ESP (Electro Static Precipitator) has not been installed.
(b) M/s Jai Mangala Sponge Iron (P) Limited - Online Monitoring System suggested that SPM of the industry is 54 mg/nm in excess of fixed standard and the house keeping of the Unit could not be found and sprinkler was not functional and the cover of the kiln was partially opened.
(c) M/s Emaar Alloys (P) Limited- Everything is found in order, however, there was a leakage in the cap of the kiln and resultantly there was a dust coming out of it and within the premises there was dust here and there.
(d) M/s Sidhi Vinayak Metcom Limited-Everything was found in order, but the cover of the rotary kiln was found opened, resulting into spreading of the dust particles in air. Within the premise, water sprinkler across coal handling area was not installed, resulting into flowing of dust.
5. Mr. N.K. Pasari, learned counsel appearing for the petitioners submits that the petitioner Nos. 1 and 2 are the Directors of M/s Chandil Industries Pvt. Ltd. and the petitioner No. 3 is the Manager of the said company, petitioner No. 4 is the Director of M/s Jai Mangala Sponge Iron Pvt. Ltd. and the petitioner No. 5 is the authorized signatory of the said company, petitioner No. 6 is the Director of M/s Emmar Alloys Pvt. Ltd. and the petitioner No. 7 is the Manager of the said company, petitioner No. 8, 9 and 10 are the Directors of M/s Sidhi Vinayak Metcom Ltd. and petitioner No. 11 is the Manager of the said company in Cr.M.P. No. 312 of 2017. He submits that the petitioner No. 1 is the Director of M/s Narsingh Ispat Pvt. Ltd. and the petitioner No. 2 is the Manager of the said -3- Cr.M.P. No. 312 of 2017 company in Cr.M.P. No. 17 of 2017.
6. Mr. Pasari, learned counsel appearing for the petitioners further submits that the Air (Prevention and Control of Pollution) Act, 1981 recommends complaint to be made to the jurisdictional magistrate for the offences under the said Act, for that he draws the attention of the court towards Section 43 of the said Act, which speaks that the cognizance can be taken only on the complaint. He further submits that there is no allegation so far as these petitioners are concerned and it has also not been disclosed that as to how these petitioners are looking into the day to day affairs of their respective companies. He further draws the attention of the court towards Section 40 of the said Act and submits that vicarious liability can only be fastened on the other officers, if the company is made accused in the case, however, in the cases in hand, the respective companies have been made parties, as accused, but cognizance against the companies has not been taken.
7. Learned counsel appearing for the petitioners refers to the judgment of Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. versus. Neeta Bhalla & Anr., reported in (2005) 8 SCC 89. Paragraph nos. 8, 9 and 19 of the said judgment are quoted hereinbelow:-
"8. The officers responsible for conducting the affairs of companies are generally referred to as directors, managers, secretaries, managing directors, etc. What is required to be considered is: Is it sufficient to simply state in a complaint that a particular person was a director of the company at the time the offence was committed and nothing more is required to be said. For this, it may be worthwhile to notice the role of a director in a company. The word "director" is defined in Section 2(13) of the Companies Act, 1956 as under:
"2. (13) 'director' includes any person occupying the position of director, by whatever name called;"
There is a whole chapter in the Companies Act on directors, which is Chapter II. Sections 291 to 293 refer to the powers of the Board of Directors. A perusal of these provisions shows that what a Board of Directors is empowered to do in relation to a particular company depends upon the roles -4- Cr.M.P. No. 312 of 2017 and functions assigned to directors as per the memorandum and articles of association of the company. There is nothing which suggests that simply by being a director in a company, one is supposed to discharge particular functions on behalf of a company. It happens that a person may be a director in a company but he may not know anything about the day-to-day functioning of the company. As a director he may be attending meetings of the Board of Directors of the company where usually they decide policy matters and guide the course of business of a company. It may be that a Board of Directors may appoint sub-committees consisting of one or two directors out of the Board of the company who may be made responsible for the day-to-day functions of the company. These are matters which form part of resolutions of the Board of Directors of a company. Nothing is oral. What emerges from this is that the role of a director in a company is a question of fact depending on the peculiar facts in each case. There is no universal rule that a director of a company is in charge of its everyday affairs. We have discussed about the position of a director in a company in order to illustrate the point that there is no magic as such in a particular word, be it director, manager or secretary. It all depends upon the respective roles assigned to the officers in a company. A company may have managers or secretaries for different departments, which means, it may have more than one manager or secretary. These officers may also be authorised to issue cheques under their signatures with respect to affairs of their respective departments. Will it be possible to prosecute a secretary of Department B regarding a cheque issued by the secretary of Department A which is dishonoured? The secretary of Department B may not be knowing anything about issuance of the cheque in question.
Therefore, mere use of a particular designation of an officer without more, may not be enough by way of an averment in a complaint. When the requirement in Section 141, which extends the liability to officers of a company, is that such a person should be in charge of and responsible to the company for conduct of business of the -5- Cr.M.P. No. 312 of 2017 company, how can a person be subjected to liability of criminal prosecution without it being averred in the complaint that he satisfies those requirements. Not every person connected with a company is made liable under Section 141.
Liability is cast on persons who may have something to do with the transaction complained of. A person who is in charge of and responsible for conduct of business of a company would naturally know why the cheque in question was issued and why it got dishonoured.
9. The position of a managing director or a joint managing director in a company may be different. These persons, as the designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. In order to escape liability such persons may have to bring their case within the proviso to Section 141(1), that is, they will have to prove that when the offence was committed they had no knowledge of the offence or that they exercised all due diligence to prevent the commission of the offence.
19. In view of the above discussion, our answers to the questions posed in the reference are as under:
(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.
(b) The answer to the question posed in sub- para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as -6- Cr.M.P. No. 312 of 2017 there is no deemed liability of a director in such cases.
(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141."
8. Relying on this judgment, learned counsel submits that in absence of the company as a party, the vicarious liability cannot be fastened upon the petitioners, as they are the Directors and other officials of the company. He further submits that in the FIR, there is no allegation as to how these petitioners are looking into the day to day affairs of the company. He also draws the attention of the court to Section 52 of the aforesaid Act and submits that this Section is having the overriding effect and the other Sections of I.P.C. are not attracted. To buttress his arguments, he relied in the case of Sharat Babu Digumarti Versus Government (NCT of Delhi), reported in (2017) 2 SCC 18, wherein the Hon'ble Supreme Court in paras-28 to 32 held as under:-
"28. We have referred to all these provisions of the IT Act only to lay stress that the legislature has deliberately used the words "electronic form". Dr. Singhvi has brought to our notice Section 79 of the IT Act that occurs in Chapter XII dealing with intermediaries not to be liable in certain cases. Learned counsel has also relied on Shreya Singhal (supra) as to how the Court has dealt with the challenge to Section 79 of the IT Act. The Court has associated the said provision with exemption and Section 69A and in that context, expressed that:-
"121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which -7- Cr.M.P. No. 312 of 2017 provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed--one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules.
122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b).
123. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid."-8- Cr.M.P. No. 312 of 2017
29. We have referred to the aforesaid aspect as it has been argued by Dr. Singhvi that the appellant is protected under the said provision, even if the entire allegations are accepted. According to him, once the factum of electronic record is admitted, Section 79 of the IT Act must apply ipso facto and ipso jure. Learned senior counsel has urged Section 79, as the language would suggest and keeping in view the paradigm of internet world where service providers of platforms do not control and indeed cannot control the acts/omissions of primary, secondary and tertiary users of such internet platforms, protects the intermediary till he has the actual knowledge. He would contend that Act has created a separate and distinct category called 'originator' in terms of Section 2(1)(z)(a) under the IT Act to which the protection under Section 79 of the IT Act has been consciously not extended. Relying on the decision in Shreya Singhal (supra), he has urged that the horizon has been expanded and the effect of Section 79 of the IT Act provides protection to the individual since the provision has been read down emphasizing on the conception of actual knowledge. Relying on the said provision, it is further canvassed by him that Section 79 of the IT Act gets automatically attracted to electronic forms of publication and transmission by intermediaries, since it explicitly uses the non-obstante clauses and has an overriding effect on any other law in force. Thus, the emphasis is on the three provisions, namely, Sections 67, 79 and 81, and the three provisions, according to Dr. Singhvi, constitute a holistic trinity.
30. In this regard, we may reproduce Section 81 of the IT Act, which is as follows:-
"81. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970."
The proviso has been inserted by Act 10 of 2009 w.e.f. 27.10.2009.
-9- Cr.M.P. No. 312 of 201731. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal (supra) and we concur with the same.
32. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.
9. Relying on the aforesaid judgments, learned counsel appearing for the petitioners submits that the entire criminal proceedings are malicious and the case has not been filed in accordance with law and unnecessarily the petitioners have been dragged in the case.
10. On the other hand, Mr. Rahul Saboo, learned counsel appearing for the O.P. No. 2 submits that there are mass agitation due to pollution being spread through the industries, which was handled by the political leader, for that a committee was constituted to keep a check on the pollution and the committee found that the industries are polluting the air, that's why the FIR has been lodged. He further submits that the IPC Sections are very much clear and speaks of offence, if there is pollution spread by the industries. By way of referring Section 37 of the said Act, he submits that Sections 21 and 22 of the said Act are the condition precedent -10- Cr.M.P. No. 312 of 2017 for operating the industries and if violation is there, Section 37 is attracted. He further submits that the counter affidavit has been filed on behalf of the O.P. No. 2, wherein it has been disclosed that the petitioners have also encroached the forest land. On these grounds, he submits that both these petitions are fit to be dismissed.
11. Mrs. Lily Sahay, learned A.P.P. appearing for the State submits that mass agitation was there and considering that the FIR was lodged.
12. In view of the above submissions of the parties, the court has gone through the materials available on record. Looking into the contents of the FIR and also on perusal of the same, it transpires that only omnibus allegations are there so far as these petitioners are concerned, who are the Directors and other officials of the companies in question. It has also not been averred in the FIR that as to how the petitioners are responsible for the day to day affairs of the companies. Although the companies are made parties, but the cognizance against the companies has not been taken and in absence of company, vicarious liability cannot be fastened upon the petitioners. Reference may be made to the case of S.M.S. Pharmaceuticals Ltd. (Supra), wherein in Paras-4 and 9 of the said judgment, the position of the Managing Director and Joint Managing Director has been discussed. Paras-4 and 9 of the said judgment are quoted hereinbelow:-
"4. In the present case, we are concerned with criminal liability on account of dishonour of a cheque. It primarily falls on the drawer company and is extended to officers of the company. The normal rule in the cases involving criminal liability is against vicarious liability, that is, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in the statutes extending liability to others. Section 141 of the Act is an instance of specific provision which in case an offence under Section 138 is committed by a company, extends criminal liability for dishonour of a cheque to officers of the company. Section 141 contains conditions which have to be satisfied before the liability can be extended to officers of a company. Since the provision creates criminal liability, the conditions have to be strictly complied with. The conditions are intended to ensure that a -11- Cr.M.P. No. 312 of 2017 person who is sought to be made vicariously liable for an offence of which the principal accused is the company, had a role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable. In other words, persons who had nothing to do with the matter need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, officers of a company who are responsible for acts done in the name of the company are sought to be made personally liable for acts which result in criminal action being taken against the company. It makes every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. The proviso to the sub-section contains an escape route for persons who are able to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence.
9. The position of a managing director or a joint managing director in a company may be different. These persons, as the designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. In order to escape liability such persons may have to bring their case within the proviso to Section 141(1), that is, they will have to prove that when the offence was committed they had no knowledge of the offence or that they exercised all due diligence to prevent the commission of the offence."
13. The Court has perused the cognizance order dated 25.04.2017, wherein no disclosure has been found as to how prima facie case against these petitioners are made out, in spite of that cognizance under the Air (Prevention and Control of Pollution) Act, 1981 as well as under the IPC have been taken against the petitioners. Reference may be made to the case of Birla Corporation Limited Verus. Adventz Investments and Holdings Limited and Others, reported in (2019) 16 SCC 610, wherein the Hon'ble Supreme Court in paras-33, 34 and 35 held as under:-
"33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.-12- Cr.M.P. No. 312 of 2017
The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under: (SCC p. 430, para 22) "22. ... The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
(emphasis supplied)
34. In Pepsi Foods Ltd. v. Judicial Magistrate, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para 28, it was held as under: (SCC p. 760) "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the -13- Cr.M.P. No. 312 of 2017 complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in GHCL Employees Stock Option Trust v. India Infoline Ltd.
35. To be summoned/to appear before the criminal court as an accused is a serious matter affecting one's dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused. In Punjab National Bank v. Surendra Prasad Sinha, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment."
14. It is well settled that if the Special Act is there, the IPC is not attracted, as has been held by the Hon'ble Supreme Court in the case of Sharat Babu Digumarti (Supra).
15. Moreover Section 52 of the Act speaks of overriding effect of that Act, which is quoted hereinbelow:-
"52. Effect of other laws.--Save as otherwise provided by or under the Atomic Energy Act, 1962 (33 of 1962), in relation to radioactive air -14- Cr.M.P. No. 312 of 2017 pollution the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act."
16. Section 43 of the aforesaid Act is very clear and speaks that only on the complaint, cognizance can be taken. For ready reference, Section 43 of the aforesaid Act is quoted hereinbelow:-
"[43. Cognizance of offences.--(1) No court shall take cognizance of any offence under this Act except on a complaint made by--
(a) a Board or any officer authorised in this behalf by it; or
(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person:
Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.]"
17. Learned counsel appearing for the O.P. No. 2 and learned A.P.P. appearing for the State are not able to demolish the arguments so far as the law points are concerned. There is no allegation in the FIR with regard to encroachment of forest land, however, it has only been stated in the counter affidavit that these petitioners have encroached the forest land. It is open for the Forest Department to proceed against the petitioners in accordance with law. What is not there in the FIR, that cannot be supplemented by way of filing the counter affidavit.
18. In view of the above facts, reasons and analysis, the entire criminal proceedings including the order taking cognizance dated 25.04.2017, in connection with Chandil-Chowka P.S. Case No. 72 of 2016 corresponding to G.R. No. 1288 of 2016, by which cognizance for the offence under Section 37 of Air (Prevention & Control of Pollution) Act, 1981 read with Section 277, 278 and 34 of the Indian Penal Code has been -15- Cr.M.P. No. 312 of 2017 taken against the petitioners, the case is pending in the court of learned Sub-Divisional Judicial Magistrate, Seraikella, are hereby, quashed and set aside.
19. Accordingly, both these petitions are allowed and disposed of.
20. Interim orders, granted earlier, stand vacated.
(Sanjay Kumar Dwivedi, J.) Amitesh/-