Karnataka High Court
M/S Muneer Enterprises vs Karnataka State Pollution Control ... on 6 November, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
CRL.P. NO.101729 OF 2017
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.101729 OF 2017
BETWEEN:
M/S MUNEER ENTERPRISES
IRON ORE STOCK YARD
ALIGADDA
KARWAR TALUK
UTTARA KANNADA DISTRICT
MANAGED AND CONTROLLED BY
MUNEER AHMED
S/O A.K. SHERKHAN
AGED ABOUT 41 YEARS
PERMANENT ADDRESS
MUNEER ENTERPRISES
C/O MUNEER CARS
HOSPET, BELLARY DISTRICT ... PETITIONER
(BY SRI. MURTHY DAYANAND NAIK, ADVOCATE)
AND:
KARNATAKA STATE POLLUTION
CONTROL BOARD
KARWAR
REPRESENTED BY ITS
DEPUTY ENVIRONMENTAL OFFICER
SHRI. GURUDEVA PRAKASH G.M.
S/O SRI. MAHADEVAIAH
AGE:MAJOR
KARWAR ... RESPONDENT
(SRI. SRI. I.G. GACHCHINAMATH, ADVOCATE)
CRL.P. NO.101729 OF 2017
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE
ORDER DATED 27.07.2015 PASSED IN C.C.NO.291 OF 2015 (P.C.
NO.110 OF 2015) PENDING ON THE FILE OF JMFC II COURT,
KARWAR, UTTAR KANNADA, TAKING COGNIZANCE AND ISSUANCE
OF SUMMONS TO THE PETITIONER ABOVE NAMED AT ANNEXURE-B
AND TO QUASH THE COMPLAINT FILED BY THE
RESPONDENT/COMPLAINANT WHICH IS PENDING AS CRIMINAL
CASE NO.291 OF 2015 ON THE FILE OF THE JMFC II COURT,
KARWAR, UTTARA KANNADA, AT ANNEXURE-A FOR OFFENCE
PUNISHABLE UNDER SECTION 37 OF AIR (PREVENTION AND
CONTROL OF POLLUTION) ACT 1981.
THIS CRIMINAL PETITION COMING ON FOR FURTHER
HEARING, BEING HEARD AND RESERVED FOR ORDERS ON
01.10.2020, THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
MADE THE FOLLOWING:
ORDER
1. The Petitioner is before this Court seeking for quashing of the order dated 27.07.2015 passed in C.C.No.291/2015 pending on the file of JMFC, II Court, Karwar by virtue of which cognisance was taken for offences under Sections 21, 22 read with 37 of Air (Prevention and Control of Pollution) Act, 1881 (hereinafter for brevity referred to as 'Air Act') by the said Court. The Petitioner also seeks for quashing of the complaint in PCR No.110/2015 CRL.P. NO.101729 OF 2017 3 on which basis the above Crime No.291/2015 came to be registered.
2. Facts leading to the above petition:
2.1. The Petitioner claims to be a Private Limited Company viz., M/s.Muneer Enterprises having its Branch Office at Aligadda, Karwar Taluk, Uttara Kannada District managed and controlled by Sri.Musheer Enterprises, C/o Muneer Cars, Hospet, Bellary District.
2.2. The Petitioner is engaged in the trade and business of exporting iron ore from Karwar Port and other Ports in India.
2.3. For that purpose, the Petitioner used to procure Iron Ore from mines situated in and around Hospet and Bellary Districts and CRL.P. NO.101729 OF 2017 4 stack the procured iron ore within proximity of Karwar and Belekeri Ports.
2.4. The Petitioner applied for and was allocated an extent of 4,000 sq. meters of Port-land at Aligadda, Baithkol, within Karwar Port compound wall, on payment of weekly rentals with effect from 01.12.2005. The Petitioner, after taking the possession of the said land commenced the activities of transporting and stacking of iron ore fines within the said allocated area.
2.5. It is stated that iron ore was transported from Bellary-Hospet mines with valid and necessary permits, licenses, etc. to the above stackyard at Aligadda within the jurisdiction of Karwar Port authorities. The Petitioner claims that the land on which the CRL.P. NO.101729 OF 2017 5 iron ore stacking was done was not belonging to the Petitioner, the said land belonged to the Port Authority and the Petitioner was using the said allocated area for the limited purpose of storing and stacking of iron ore fines in powder form and iron ore lumps and were not carrying on any carrying on any industrial activity nor an industrial plant as envisaged under Section 2(k) of the Air Act was established.
2.6. A complaint came to be filed by the respondent - Karnataka State Pollution Control Board (for short, 'KSPCB') on 28.04.2006 for the offences punishable under Sections 21 and 22 read with Section 37 of Air Act before JMFC., II Court, Karwar, which came to be numbered as C.C.No.549/2006. The Magistrate took CRL.P. NO.101729 OF 2017 6 cognisance of the offence on 03.05.2006 and issued summons to the Petitioner.
2.7. Being aggrieved, the Petitioner filed Criminal Petition No.390/2007 under Section 482 of Code of Criminal Procedure (for short, Cr.P.C.) before the Principal Bench of this Court at Bengaluru, which came to be later transferred to Dharwad Bench of this Court.
2.8. The Dharwad Bench of this Court was pleased to dismiss the petition by its order dated 07.01.2009.
2.9. Challenging the same, the Petitioner filed Special Leave Petition before the Hon'ble Apex Court of India along with three other similar petitions. The same came to be numbered as Criminal Appeal Nos.152 to 155/2012. The Hon'ble Apex Court disposed CRL.P. NO.101729 OF 2017 7 the said Criminal Appeals on 09.04.2015 allowing the said appeals on technical grounds quashing the complaint bearing C.C.No.549/2006.
2.10. The Hon'ble Apex Court directed the respondent - KSPCB to reinitiate the proceedings in consonance with the provisions of Section 43(1) of the Air Act.
2.11. Pursuant to the judgment of the Hon'ble Apex Court, the respondent-KSPCB on 27.07.2015 filed a fresh complaint before the JMFC II Court, Karwar in PCR No.110/2015 and the Magistrate has proceeded to take cognisance of the same on the very same day i.e., 27.07.2015 itself and issued summons to the accused for appearance. The Magistrate directed for CRL.P. NO.101729 OF 2017 8 registration of a criminal case against the accused, which came to be numbered as C.C.No.291/2015.
2.12. It is aggrieved by the said order of cognisance and issuance of summons dated 27.07.2015, the Petitioner is before this Court seeking for quashing thereof.
3. Sri.Murthy Dayanand Naik, learned counsel for the Petitioner submitted as under:
3.1. He relied on the decision of Hon'ble Apex Court in the case of Birla Corpn. Ltd. v.
Adventz Investments & Holdings Ltd., [(2019) 16 SCC 610], more particularly Paras 31, 32 and 60, which are reproduced hereunder for easy reference:
"30. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon CRL.P. NO.101729 OF 2017 9 the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.
32. Considering the scope of amendment to Section 202 Cr.P.C., in Vijay Dhanuka v. Najima Mamtaj [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638: (2015) 1 SCC (Cri) 479] , it was held as under: (SCC p.
644, para 12) "12. ... The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate."
CRL.P. NO.101729 OF 2017 10 Since the amendment is aimed to prevent persons residing outside the jurisdiction of the Court from being harassed, it was reiterated that holding of enquiry is mandatory. The purpose or objective behind the amendment was also considered by this Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar [Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192] and National Bank of Oman v. Barakara Abdul Aziz [National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488 : (2013) 2 SCC (Cri) 731] .
60. The object of investigation under Section 202 Cr.P.C. is "for the purpose of deciding whether or not there is sufficient ground for proceeding". The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. As discussed earlier, issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non- application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity. In the present case, the satisfaction of the CRL.P. NO.101729 OF 2017 11 Magistrate in ordering issuance of process to the respondents is not well founded and the order summoning the accused cannot be sustained. The impugned order of the High Court holding that there was compliance of the procedure under Section 202 Cr.P.C. cannot be sustained and is liable to be set aside."
3.2. Relying on the above, he submitted that no process could have been issued insofar as the Petitioner is concerned without application of mind and without the Court coming to the conclusion that such process ought to have been issued since the Petitioner was residing outside the territorial jurisdiction of the Magistrate Court.
3.3. While taking cognisance of the proceedings under Section 190 of Cr.P.C., there is complete non-application of mind on the part of the Magistrate. The Magistrate has in a mechanical fashion passed the order without CRL.P. NO.101729 OF 2017 12 adverting to the facts and/or coming to the conclusion that there is a prima facie case made out to take cognisance. In this regard, he relies on the decision in the case of K.Sitaram vs. CFL Capital Financial Service Ltd., [(2017) 5 SCC 725] more particularly Para 22 thereof which is reproduced hereunder:
"22. When a person files a complaint and supports it on oath, rendering himself liable to prosecution and imprisonment if it is false, he is entitled to be believed unless there is some apparent reason for disbelieving him; and he is entitled to have the persons, against whom he complains, brought before the Court and tried. The only condition requisite for the issue of process is that the complainant's deposition must show some sufficient ground for proceeding. Unless the Magistrate is satisfied that there is sufficient ground for proceeding with the complaint or sufficient material to justify the issue of process, he should not pass the order of issue of process. Where the complainant, who instituted the prosecution, has no personal knowledge of the allegations made in the complaint, the Magistrate should satisfy himself upon proper materials that a case is made out CRL.P. NO.101729 OF 2017 13 for the issue of process. Though under the law, a wide discretion is given to the Magistrate with respect to grant or refusal of process, however, this discretion should be exercised with proper care and caution."
3.4. He relied on the decision in the case of Sunil Bharti Mittal vs. CBI [(2015) 4 SCC 609] more particularly Paras 48 and 49, which are reproduced hereunder:
"48. Sine qua non for taking cognisance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognisance. At the stage of taking cognisance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
49. Cognisance of an offence and prosecution of an offender are two different CRL.P. NO.101729 OF 2017 14 things. Section 190 of the Code empowered taking cognisance of an offence and not to deal with offenders. Therefore, cognisance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards."
3.5. The Magistrate ought not to have issued process under Chapter XVI Section 204 of Cr.P.C. unless he recorded sufficient grounds for proceeding with the matter. The order exfacie demonstrates that there is no such recordal, the order for issuance of process is bad in law.
3.6. No process could have been issued insofar as Company is concerned since the Company is an incorporeal entity and as such the Company by itself could not be held responsible for the offences if any committed.
CRL.P. NO.101729 OF 2017 15 3.7. There have been no allegations made against any Director of the Company or the Company specifically. Thus, unless there is a specific allegation made in respect of a particular Director, no criminal proceedings could have been initiated. In the present proceedings, the Company is represented by its Managing Director. There are no allegations specifically made against the Managing Director of the Company.
3.8. The Managing Director could not be made a party to the criminal proceedings. For the purpose of initiating the criminal action, there must be violation alleged against such director against whom criminal action is initiated.
CRL.P. NO.101729 OF 2017 16 3.9. In terms of Section 40 of the Air Act, no proceedings could be initiated. Said Section 40 is reproduced 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.
CRL.P. NO.101729 OF 2017 17 Explanation.-For the purpose of this section,-
(a) "company" means any body corporate, and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
3.10. He relies on the decision of Hon'ble Apex Court in the case of Sunil Bharti Mittal vs. CBI [(2015) 4 SCC 609] more particularly Paras 42, 43 and 44, which are reproduced hereunder for easy reference.
43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the Company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.
44. When the Company is the offendor, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In CRL.P. NO.101729 OF 2017 18 Aneeta Hada (supra), the Court noted that if a group of persons that guide the business of the Company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction namely where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the Company, to the effect that such a person was responsible for the acts committed by or on behalf of the Company."
3.11. The land on which iron ore was stacked was the area belonging to the Port authorities. It is the port authorities who permitted the Petitioner to stack iron ore in that land. If at all, it was for the port authorities to obtain necessary permissions and/or no objection from the respondent - KSPCB before CRL.P. NO.101729 OF 2017 19 permitting such stack yard. The obligation is only on the port authorities. There is no obligation on the Petitioner to obtain any permission or no objection from the respondent - KSPCB.
3.12. Any consent for establishment or consent for the operation would have to be obtained by the Port authorities from the respondent - KSPCB. The Petitioner not being the owner of land could not have applied or obtained such consent from the respondent - KSPCB. 3.13. The Petitioner was always under the impression that such permission or consent had been obtained by the Port authorities and in this regard, stevedore of J.M.Bakshi and Co had sent a letter dated 11th December 2006 to the Regional Officer-
CRL.P. NO.101729 OF 2017 20 KSPCB, stating that it was their understanding that the permission/consent for stacking of iron ore in the plots inside the said Port enclosed area adjacent to the port berths is obtained by the Port Officer, Karwar Port and no clearance is given to an individual in the said area. Relying on the same, he submitted that it was on that impression that the Petitioner has been making use of the land allotted by the port authorities for stacking of iron ore in order to facilitate the transportation by loading it on a ship and transporting it which berthed in the port area.
3.14. He again reiterated that the port authorities being in control of the area allocated to the Petitioner, it was the duty and responsibility of the port authority to obtain such CRL.P. NO.101729 OF 2017 21 permission as may be required for stacking of iron ore since the permission was given to the Petitioner to stack iron ore in the said allocated area.
3.15. Relying on the notice of proposed direction under Section 31A of the Air Act and Rule 20A of the Karnataka Air (Prevention and Control of Pollution) Rules, 1983 (hereinafter referred to as 'Air Rules'), he submitted that in lieu of letter dated 24.04.2004, the respondent - KSPCB had proposed to take action against the port authorities. By relying on Paras 5 and 7 of the said letter, wherein it is stated that "The Port authorities have not applied and obtained consent of the board under both acts" and "The RO, Karwar has issued notice on 15.12.03 to the port authorities by quoting provisions under Air CRL.P. NO.101729 OF 2017 22 Act, but even then the port authorities have failed to reply for the same", showcause notice was issued to the port authorities calling upon the port authorities to showcause as to why action should not be issued against port authorities. The relevant para in the said showcause is reproduced hereunder:
"You are hereby called upon to show cause within 15 days from the date of receipt of this proposed direction to file your objections if any to the undersigned. If no objections are received within 15 days, the Board will take necessary action in accordance with proposed directions without making further correspondence."
3.16. Relying on the above, he submitted that though the respondent - KSPCB proposed to issue a direction to the port authorities and show cause notice was issued to the port CRL.P. NO.101729 OF 2017 23 authorities, shockingly, the respondent - port authorities have sought to now take action against the Petitioner merely because the port authorities is a governmental organisation.
3.17. Relying on Section 41 of the Air Act, he submitted that the governmental authorities are not exempted from seeking for and obtaining permission under the respective Pollution Control Act including the Air Act. The said Section 41 is reproduced hereinbelow for easy reference.
"41. OFFENCES BY GOVERNMENT DEPARTMENTS. - (1) Where an offence under this Act has been committed by any Department of Government, the Head of the Department 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 section shall render such Head of the Department liable to any punishment if he CRL.P. NO.101729 OF 2017 24 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 Department of Government 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 officer, other than the Head of the Department, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
3.18. That iron ore stackyard is not an industry within the definition of Section 2(a) of the Air Act. There is no industrial activity which is carried out by the Petitioner. Therefore, the same not being an industry, the Air Act would not apply to the stackyard for the purpose of obtaining any permission or consent from the KSPCB by the Petitioner.
CRL.P. NO.101729 OF 2017 25 3.19. This Court can exercise its powers under Section 482 of Cr.P.C., which has unlimited powers to intercede and intervene in any matter where there is a procedural violation more so when the matter relates to the criminal proceedings so as to safeguard the interest of the citizens of the country from initiation of unnecessary criminal proceedings against them.
3.20. In this regard, he relied upon the decision of the Hon'ble Apex Court in the case of State of Orissa vs. Debendra Nath Padhi [(2015) 1 SCC 568] more particularly Para 29 which is reproduced hereunder for easy reference:
""29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling CRL.P. NO.101729 OF 2017 26 quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]."
3.21. He relied upon the decision of the Hon'ble Apex Court the case of Anand Kumar Mohatta vs. State (NCT of Delhi) [(2019) 11 SCC 706] Para 16, which is reproduced herein for easy reference:
"16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of Court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 Cr.P.C even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 :
(2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that CRL.P. NO.101729 OF 2017 27 proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."
3.22. Further, he relied on the judgment of this Court in the case of B.S.Yediyurappa vs. State of Karnataka [Crl.P No.100964/2020] more particularly Paras 89 and 90 to contend that when the petitioner/accused is residing outside the territorial jurisdiction of the Magistrate, the Magistrate is required to apply his mind as to why process is to be issued to the accused residing outside the jurisdiction of the Magistrate. Relevant para is reproduced hereunder for easy reference.
CRL.P. NO.101729 OF 2017 28 "11.5. The question that would arise in regard to the above contention is what is the enquiry that the Magistrate would have to conduct. There would have to be an order passed under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the Magistrate to an accused who is not residing within the jurisdiction of that Court and for this purpose, sworn statement of the complainant as also the affidavit evidence if any of the complainant's witnesses could be recorded leading to an order by the Magistrate based on his satisfaction that there are sufficient grounds for issuing summons to such accused residing outside its jurisdiction. Such order not having been passed by the Magistrate, the summons could not have been so issued...."
3.23. On the basis of the above, Mr.Naik, learned counsel for the Petitioner submitted that the order of cognisance dated 27.07.2015 as also the entire proceedings initiated are required to be quashed.
CRL.P. NO.101729 OF 2017 29
4. Sri.Gurudev Gachchinamath, learned counsel for the respondent-KSPCB submitted as under:
4.1. KSPCB is a statutory State body constituted under Section 5 of the Air Act and also under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (for brevity referred to as 'Water Act') to perform the powers and functions assigned to it under the said Acts.
4.2. There is no dispute that the Port Officer, Karwar had allotted 4,000 sq. mtrs. of port land to the accused; that as per Section 21 of the Air Act, no person without the previous consent of KSPCB can establish or operate any industrial plant/iron ore stack yard in an air pollution control area and as per Section 22 of Air Act, no person shall CRL.P. NO.101729 OF 2017 30 operate any industrial plant/iron ore stack yard in any air pollution control area nor such person can discharge or be permitted to discharge any emission of any air pollutant in excess of the standards laid down by the State Board. If there is any violation of the said requirement and/or restrictions, he submitted that the same would be punishable under Section 37 of the Air Act.
4.3. The activities of the petitioner-accused come within the ambit, definition and scope of industrial plant as defined under Section 2(k) of the Air Act. The said Section 2K is reproduced hereunder for easy reference:
""Industrial Plant" means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere."
CRL.P. NO.101729 OF 2017 31 4.4. The Petitioner - accused had earlier obtained a consent for operation for the period from 01.07.2005 to 30.06.2006 under both the Air Act and Water Act for stacking iron ore at Aligadda. Though the petitioner had submitted a Commitment Letter in twenty rupees stamp paper towards providing the pollution control measures by 31.12.2005 as suggested by the Board along with the consent application, the petitioner did not provide adequate control measures and hence, the consent application filed by the petitioner was returned for want of compliance vide letter No.1493 dated 16.12.2005. The petitioner failed to resubmit the said application and obtain consent for operation. Hence, in effect, CRL.P. NO.101729 OF 2017 32 there is neither consent for establishment nor consent for operation is obtained by the petitioner.
4.5. The petitioner-accused was always aware of the fact that the petitioner-accused running the business, operating the industrial plant viz., stacking of iron ore which causes pollution. It was for the Petitioner - accused to take necessary permissions, consent, no objection as also to implement any pollution control measures that are suggested by the KSPCB and/or its officers to the Petitioner. 4.6. There is no dispute as regards the complainant-Board carrying out the monitoring of ambient air quality and the report received therefrom is indicated that the suspended particulate matter was CRL.P. NO.101729 OF 2017 33 exceeding the specified limit either for industrial or residential area. It is in lieu of said fact that the residents of Aligadda had approached KSPCB seeking for necessary action in respect of said pollution caused and it is in pursuance thereof that the respondent-KSPCB had issued a notice to the Petitioner by letter bearing No.2014 dated 18.02.2006 with a copy to the Port Officer, Karwar for taking necessary action. Apart therefrom, a separate letter was issued to the Port Officer, Karwar vide letter No.2048 dated 22.02.2006 to take necessary action to maintain ambient air quality. He submitted that merely because a letter was addressed to the Port authorities does not mean or imply that the petitioner- accused was not required to obtain the CRL.P. NO.101729 OF 2017 34 necessary consent from KSPCB or that the Petitioner was not required to implement such norms as are required for the purposes of ameliorating and/or controlling the air pollution. It was always for the Petitioner to have conducted its business in such a manner that the pollution control norms, more particularly the ambient air quality norms are adhered to and maintained by the Petitioner.
4.7. In view of the aforesaid complaint and in view of the Petitioner not having complied with any of the requests and demands made by the respondent-KSPCB, an inspection was conducted on 27.02.2006 wherein it was found that the Petitioner had not provided any pollution control measures which was in complete disregard of the applicable laws, CRL.P. NO.101729 OF 2017 35 environment as also the people residing in and around the area.
4.8. It is on the basis of the said report that the Board informed the Assistant Commissioner, Karwar vide addressing a letter to the Port Officer, Karwar to instruct iron ore handling companies to adopt necessary measures to control air pollution. In this regard, a meeting was also called for by the Port officers, Karwar on 28.02.2006 inviting the representatives of all the iron ore stack yards, exporters and transporters to discuss the smooth handling of iron ore in Karwar and Belekeri port.
4.9. A final warning was also given to the Petitioner and other operators to stop the operations and if they intend to continue the CRL.P. NO.101729 OF 2017 36 operations to comply with all the conditions imposed for control of such air pollution. 4.10. There are serious infractions by the Petitioner which are found at the time of inspection. Some of which are as follows:
4.10.1. The bunds of sufficient height/retaining wall/barricade of sufficient height around the storage yard is not provided. The height of the stack was not maintained below (3 feet) the height of the barricade.
4.10.2. Continuous water sprinkling system (roads, storage yard) not adopted to suppress the fugitive emission of fine dust particles & no care was taken during the unloading of vehicles.
CRL.P. NO.101729 OF 2017 37 4.10.3. The loaded lorries not covered with good quality tarpaulins during transportation.
4.10.4. The unloaded lorries were not cleaned thoroughly.
4.10.5. The lot of spillage of iron ore was observed on the NH-17. This was mainly due to the movement of iron ore carrying Lorries/Tippers without covering the iron ore with good quality tarpaulin. The movement of other vehicles on this spilled iron ore has further magnified the effect of air pollution on the public traveling on the NH-17. Thus, the air pollution was not only limited to the said iron ore stack yard and was also affecting the surrounding area.
CRL.P. NO.101729 OF 2017 38 4.10.6. Even after repeated notices issued from this office, the said Company had failed to apply and obtain the consent for operation from the complainant Board. This was a continuous actionable nuisance and offence under Section 21, 22 and 37 of Air (Prevention and Control of Pollution) Act, 1981. Besides this, the accused person has violated many other provisions of Environmental Laws related to pollution control, for which the complainant reserves his right to prosecute the accused." 4.11. It is in view of the above fact that respondent - KSPCB had initiated criminal proceedings against the Petitioner which were filed through the Legal Officer, Deputy CRL.P. NO.101729 OF 2017 39 Environmental Officer, KSPCB. However, on the Apex Court coming to the conclusion that such persons would not be properly authorised, the same came to be dismissed granting liberty to KSPCB to initiate fresh proceedings in consonance with the provisions of Section 43(1) of Air Act and it is in pursuance thereof that the Deputy Environmental Officer was authorised by way of a resolution dated 02.07.2015 and the complaint filed so as to satisfy the requirement of law laid down by the Apex Court.
4.12. The offences being serious, the earlier complaint having been quashed on a technicality with liberty being granted by the Hon'ble Apex Court to file the present proceedings and the present proceedings CRL.P. NO.101729 OF 2017 40 being filed in the year 2015, once again, the Petitioner is taking up technical contentions to avoid prosecution. The Petitioner has circumvented and avoided the prosecution from the year 2006, for the last 14 years and therefore, he submitted that this Court ought not to encourage or entertain such technical pleas raised by the Petitioner. 4.13. The Magistrate has applied his mind while coming to the conclusion that the process is required to be issued to the Petitioner. Magistrate has perused the records, appreciated the offences alleged and taken cognisance.
4.14. At that stage there was no requirement for the Magistrate to go through the entire CRL.P. NO.101729 OF 2017 41 complaint and come to a conclusion as regards the offences committed. 4.15. The Apex court while granting liberty to file a fresh complaint has observed that there are offences committed, hence there was no further requirement for the Magistrate to pass a detailed order.
4.16. It is only a prima facie conclusion for the purpose of issuance of consent, which is evident from the order. He denies that the order is mechanical one and/or passed without application of mind. The complaint being detailed enough, the Magistrate having perused the complaint and appreciated the provisions under which the Petitioner was being proceeded against were sufficient application of mind.
CRL.P. NO.101729 OF 2017 42 4.17. The manner in which the petitioner has represented itself whether it is a limited company or not is not clear. Infact, even in the causetile, it has been mentioned as M/s.Muneer Enterprises, which could only signify the same to be a proprietory concern or a partnership concern. In either case, both the proprietor or partner are responsible. It is now for the first time that the petitioner has sought to contend that it is a Private Limited Company. It is further stated that the said Muneer Enterprises is managed and controlled by Sri.Musheer Ahmed. Therefore, even as per the causetitle and description of the representative of the petitioner, it is not clear that it is a Private Limited Company. Even otherwise, said Sri.Musheer Ahmed CRL.P. NO.101729 OF 2017 43 claims to manage and control the said Muneer Enterprises. Therefore, he would be responsible for all the affairs of so called Limited Company.
4.18. Even otherwise, it is further submitted that all the Directors of the Company having derived the benefit from the trading carried out by the Company the managing director being incharge of the day to day affairs of the Company would be liable for being prosecuted for the offences under the Air Act and Water Act.
4.19. He submitted that the offence of pollution having been committed in the land allocated to the Petitioner, it was the duty of the Petitioner to obtain necessary consent for establishment and consent for operation CRL.P. NO.101729 OF 2017 44 which had infact earlier had been obtained. The Petitioner also was put to notice on the above facts. The Petitioner cannot now contend that it was for the Port authorites to obtain such consent. He submitted that the fact is that the Petitioner was using the area to stack iron ore and there was pollution. The cause and effect of pollution being well known to the Petitioner, the Petitioner now cannot take up a contention that the stackyard is not an industry. Infact it is an industry in terms of Section 2(k) of the Air Act.
4.20. KSPCB is a statutory authority constituted under Section 5 of Air Act and 4 of the Water Act to perform the functions assigned under the said Acts has initiated the proceedings against the Petitioner under Section 37 of CRL.P. NO.101729 OF 2017 45 the Air Act for offences committed under Sections 21 and 22 of the Air Act. Since the Petitioner has not taken adequate and proper measures, the respondent-KSPCB has filed a private complaint in the year 2015 and the impugned order was passed on 27.07.2015 ordering summons on the Petitioner. The Petitioner immediately appeared in the matter and subjected himself to the process of trial it is only after two years that the present petition has been filed. Therefore, there is a delay and latches on the part of the Petitioner which would disentitle the Petitioner from any equitable reliefs at the hands of this Court. 4.21. A reading of Sections 2(k), 2(m), 17(e), 17(f) and 17(j) along with Section 31A, empowers the KSPCB to take effective CRL.P. NO.101729 OF 2017 46 measures for prevention and control of air pollution, which is taken by KSPCB. The Petitioner cannot be therefore permitted to take undue advantage. Sections 17 and 31A are reproduced hereunder for easy reference:
"17. FUNCTIONS OF STATE BOARDS. - (1) subject to the provisions of this Act, and without prejudice to the performance of its functions, if any, under the Water (Prevention and Control of Pollution) Act, 1974 (Act 6 of 1974), the functions of a State Board shall be-
(a) to plan a comprehensive programme for the prevention, control or abatement of air pollution and to secure the execution thereof;
(b) to advise the State Government on any matter concerning the prevention, control or abatement of air pollution;
(c) to collect and disseminate information relating to air pollution;
(d) to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of air pollution and to organise mass-education programme relating thereto;
CRL.P. NO.101729 OF 2017 47
(e) to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution;
(f) to inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air therein and take steps for the prevention, control or abatement of air pollution in such areas;
(g) to lay down, in consultation with the Central Board and having regard to the standards for the quality of air laid down by the Central Board, standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere from any other source whatsoever not being a ship or an aircraft:
Provided that different standards for emission may be laid down under this clause for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants;
(h) to advise the State Government with respect to the suitability of any premises or location for carrying on any industry which is likely to cause air pollution;
(i) to Perform such other functions as may be prescribed or as may, from time to time, be CRL.P. NO.101729 OF 2017 48 entrusted to it by the Central Board or the State Government;
(j) to do such other things and to perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of this Act.
(2) A State Board may establish or recognise a laboratory or laboratories to enable the State Board to perform its functions under this section efficiently."
"31A. POWER TO GIVE DIRECTIONS. - Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.
Explanation.-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section, includes the power to direct-
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) the stoppage or regulation of supply of electricity, water or any other service."
CRL.P. NO.101729 OF 2017 49 4.22. The causetitle of the petition reflects the place of the business of the Petitioner as Aligadda which is within the jurisdiction of the Court and therefore, this ground alleged by the Petitioner is not sustainable. 4.23. Relying on the above submissions, he submitted that the above petition needs to be dismissed.
5. Heard, Sri. Murthy Dayanand Naik learned counsel for the Petitioner and Sri. Gurudev Gachchinamath learned counsel for the respondent and perused the papers.
6. The points that would arise for consideration by this Court are:
(i) Whether at the time of issuance of process, the Magistrate is required CRL.P. NO.101729 OF 2017 50 to pass a detailed order to support his conclusion to take cognisance and issue process?
(ii) Whether a Magistrate can issue
summons to a person residing
outside the territorial jurisdiction without conducting an enquiry under Section 202 of Cr.P.C., if so under what circumstances?
(iii) Would the iron ore stackyard come within the definition of industry?
(iv) Whether any matter relating to
pollution, all Directors of a
incorporated body like a company can be prosecuted? If not, who are concerned persons to be prosecuted?
CRL.P. NO.101729 OF 2017 51
(v) Can a tenant or a licencee of the property contend that the liability of obtaining permission from the respective Pollution Control Board would be that of the owner and the tenant/licensee has nothing to do with it?
(vi) What order
7. I answer the above points as under.
8. POINT NO. (i): Whether at the time of issuance of process, the Magistrate is required to pass a detailed order to support his conclusion to take cognisance and issue process?
8.1. Sri. Naik, learned counsel for the Petitioner has relied on the decisions of Birla Corporation Limited, K.Sitaram, Sunil CRL.P. NO.101729 OF 2017 52 Bharti Mittal and B.S.Yediyurappa's cases (stated supra) to contend that prior to issuance of process, the Magistrate is required to pass a detailed order to support his decision to take cognisance and issue such process as also to contend that if a process for summons is to be issued to an accused residing outside the territorial jurisdiction of such Magistrate, an enquiry under Section 204 of Cr.P.C. is required to be conducted. In support of the above proposition, relies on the above decisions. 8.2. As held by the Hon'ble Apex Court as also this Court, any Court taking cognisance of a matter is required to follow the due procedure relating thereto since it is on taking cognisance that criminal law is set in CRL.P. NO.101729 OF 2017 53 motion as against the accused in that matter. For that purpose, at the time of taking cognisance, there must be a proper application of judicial mind to the materials before the said Court either oral or documentary, as well as any other information that might have been submitted or made available to the Court. 8.3. The test that is required to be applied by the Court while taking cognisance is as to whether on the basis of the allegations made in the complaint or on a police report or on information furnished by a person other than a police officer, is there a case made out for initiation of criminal proceedings.
CRL.P. NO.101729 OF 2017 54 8.4. For the above purpose, there is an assessment of the allegations required to be made applying the law to the facts and thereby arriving at a conclusion by a process of reasoning that cognisance is required to be taken.
8.5. An order of cognisance cannot be abridged, formatted for formulaic. The said order has to make out that there is a judicial application of mind. Since without such application, the same may result in the initiation of criminal proceedings when it was not required to be so done.
8.6. The order of taking cognisance is a safeguard inbuilt in the criminal justice system so as to avoid malicious prosecution and/or frivolous complaints.
CRL.P. NO.101729 OF 2017 55 8.7. When a complaint or a police report or information by a person other than police officer is placed before the Court, the judicial officer must apply judicious mind coupled with discretion which is not to be exercised in an arbitrary, capricious, whimsical, fanciful or casual way. 8.8. Any offence alleged being one of commission or omission attracting penal statutes; cognisance can be taken only if the allegations made fulfil the basic requirement of the said penal provision. At this point, it is not required for the Court taking cognisance to ascertain the truth or veracity of the allegation but only to appreciate if the allegations taken at face value, would amount to the offence CRL.P. NO.101729 OF 2017 56 complained of or not. If Yes, cognisance could be taken, if No, taking cognisance could be refused.
8.9. In the above background that the order passed by the Magistrate taking cognisance has to be appreciated. The said order reads as follows:
"Complainant present.
Complainant filed through his counsel.
Perused record The offences alleged against the accused are punishable U/s 21, 22 r/w 37 of Air (Prevention & Control of Pollution) Act, 1981 The complainant is a public servant.
Acting U/s 200 of Cr.P.C.
The Sw/St. of dispensed.
Cognisance taken Office is directed to register regular criminal case against the accused for the said offences CRL.P. NO.101729 OF 2017 57 Office is directed to put up the original CC file of the respective cases & mentioned in the application.
Issue S.S.to accused if PF paid & sufficient copies supplied.
Call on: 14.10.2015"
8.10. Applying the above requirement to the order passed by the Magistrate, it can be ex facie seen that the order of the magisterate does not satisfy the requirement of arriving at a prima facie conclusion to take cognisance and issue process let alone to the accused residing outside the jurisdiction of the said Magistrate.
8.11. Birla Corporation Limited's case (supra) is categorical, in that, there has to be an application of mind by the Magistrate that prima facie or exfacie the offences are made out on reading of the complaint filed. A CRL.P. NO.101729 OF 2017 58 perusal of the impugned order dated 27.07.2015 only refers to offences alleged and the order of cognisance is a two words order "cognisance taken".
8.12. The same in my considered opinion would not satisfy the requirement of law. The Magistrate while taking cognisance under Section 190 of Cr.P.C. is required to apply his mind and pass a sufficiently reasoned order indicating such application of mind and the reasons for coming to a conclusion that there is infact an offence which is committed.
8.13. Mere reference to the provisions in respect of which offences are alleged to have been committed would not be in compliance with the aforesaid requirement of the statutes as CRL.P. NO.101729 OF 2017 59 also the various decisions of the Honb'le Apex Court extracted hereinabove. 8.14. The Magistrate ought to have referred to and recorded the reasons why he believes that an offence is made out so as to take cognisance more so on account of the fact that it is on taking cognisance that the criminal law is set in motion insofar as accused is concerned and there may be several cases and instances where if the Magistrate were to apply his mind, the complaint may not even be considered by the said Magistrate let alone taking cognisance and issuance of summons. 8.15. In view of the above, I am of the considered opinion that the order dated 27.07.2015 taking cognisance is not in compliance with CRL.P. NO.101729 OF 2017 60 applicable law and therefore is set aside. The matter is remanded to the Magistrate to consider and pass a reasoned order before taking cognisance and issuance of summons.
8.16. I answer Point No. (i) by holding that at the time of issuance of process, the Magistrate is required to pass a detailed order to support his conclusion to take cognisance and issue process, in terms of the discussion above. The judicious application of mind to the law and facts of the matter, should be apparent on the ex-facie reading of the order of cognisance.
9. POINT NO. (ii): Whether a Magistrate can issue summons to a person residing outside CRL.P. NO.101729 OF 2017 61 the territorial jurisdiction without conducting an enquiry under Section 202 of Cr.P.C., if so under what circumstances?
9.1. Sri. Naik, learned counsel for the Petitioner, submitted relying on the decision of Yediyurappa's case stated supra that before issuing summons to an accused residing outside the jurisdiction, there has to be the application of mind by the Magistrate and after conducting an enquiry under Section 202 of Cr.P.C. the Magistrate has to come to a conclusion that such summons are required to be issued to an accused residing outside the jurisdiction. 9.2. Sri.Gachchinamath, learned counsel for the respondent has submitted that the offence having been committed within the CRL.P. NO.101729 OF 2017 62 jurisdiction of the Magistrate and the offence being continuing inasmuch as the pollution was being caused on a continuous basis, even as on the date of filing of the private complaint, it cannot be said that the accused is residing outside the jurisdiction of the Court.
9.3. It is the case of the respondent-complainant that in the area allocated to the Petitioner measuring about 4,000 sq. mtrs. in the port at Aligadda within the Karwar Port compound wall, the Petitioner is storing iron ores and without taking any ameliorative steps and/or protective steps prescribed under the Air Act and Water Act, due to which, pollution is caused and it is for that reason that the complaint is filed. The Petitioner has not refuted or denied the CRL.P. NO.101729 OF 2017 63 storing of iron ore in the port land. Infact the Petitioner also not denied the pollution caused therefrom. The contention of Sri.Naik, learned counsel for the Petitioner is that the permission and/or no objection and/or consent if any required was to be so obtained by the port authorities and not by the Petitioner, secondly, he contends that storing and stacking of iron ore does not come within the definition of an industrial plant in terms of 2(k) of Air Act and on this ground, he submitted that the Petitioner cannot be proceeded against for any violation of the Air Act or otherwise. If at all the proceedings are to be initiated, they are to be so initiated against the port authorities.
CRL.P. NO.101729 OF 2017 64 9.4. It is not in dispute that the Karwar Port trust compound comes within the jurisdiction of the Magistrate i.e., Civil Judge, JMFC., II Court, Karwar. It is also not in dispute that the offences are alleged to have been committed and continued to be committed within the jurisdiction of the said Court. It is also not in dispute that the Petitioner has an office in the said port compound. In view of the same, the contention of Sri.Naik, learned counsel for the Petitioner that the registered office of the Company situated at Hospet, Bellary and not within the jurisdiction of the JMFC II Court, Karwar cannot be countenanced either in law or facts. When it is admitted that the Petitioner has an office within the port area or within the jurisdiction of the CRL.P. NO.101729 OF 2017 65 Court that Court would have the necessary jurisdiction to issue summons to the accused at that address and there would be no requirement for following the procedure under Section 202 of Cr.P.C.
9.5. The procedure under Section 202 of Cr.P.C.
is required to be followed only when the accused has no presence at all within the jurisdiction of the Court issuing process, which is not the case here.
9.6. In view of the same, I am of the considered opinion that the decision of Yediyurappa's case would not come to the rescue of the Petitioner. That was a case where the accused was a resident of Bangalore and the offence was alleged to have been committed in Gokak. The accused had no CRL.P. NO.101729 OF 2017 66 continuing connection with Gokak. The Magistrate was therefore required to conduct an enquiry under Section 202 of Cr.P.C.
9.7. In the present case, the Accused is carrying on its/his business within the jurisdiction of the Magistrate, the offence complained of is a continuing offence, hence in these circumstances, when the accused has a presence within the jurisdiction of the Magistrate, there is no requirement for an enquiry to be held under Section 202 of the Cr.P.C.
9.8. Be that as it may. Even if there is any grievance that the accused who has been summoned has, the said grievance would have to be raised as soon as the accused CRL.P. NO.101729 OF 2017 67 presents himself before the court. In the present case, the complaint was filed in the year 2015, the impugned order of taking cognisance and issuance of summons was passed on 27.07.2015 and the present petition was filed on 07.08.2017. The petitioner-accused has entered appearance on 03.09.2016. Thereafter, the matter was adjourned to 20.10.2016 and thereafter the matter was listed on 21.01.2017, 23.03.2017, 25.05.2017 and 28.07.2017. It is only thereafter the present petition was filed on 07.08.2017 i.e., to say that the present petition being filed after nearly eleven months after the petitioner-accused had entered appearance before the Magistrate.
CRL.P. NO.101729 OF 2017 68 9.9. The petitioner-accused cannot be permitted to take advantage of such a delay. The matter being the year of 2005, the petitioner for one reason or the other has been delaying the matter so as to escape prosecution. In such a situation, the petitioner cannot be given the benefit of non-enquiry under Section 202 of Cr.P.C. As stated above, the enquiry under Section 202 of Cr.P.C. has to be made by the Magistrate to come to a conclusion as to whether summons has to be issued or not only in order to protect an innocent accused from being prosecuted and/or travelling the distance to the Magistrate Court to defend himself. Having appeared on 03.09.2016 and thereafter having continued to appear, it cannot be said that there is any CRL.P. NO.101729 OF 2017 69 inconvenience which has been caused to the petitioner-accused. Therefore, the question of now raising this issue after a period of more than eleven months after appearance cannot be countenanced either under law or facts.
9.10. I answer Point No.(ii) by holding that 9.10.1. When the accused is having an office, branch office, corporate office, sales office or the like within the jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section 202 of CRL.P. NO.101729 OF 2017 70 Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.
9.10.2. In the event of accused being an individual, if the said accused has a temporary residence within the jurisdiction of the Magistrate, again merely because he does not have a permanent residence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, CRL.P. NO.101729 OF 2017 71 be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.
9.10.3. When the accused has no
presence within the
jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C to be held.
9.10.4. In the event of accused being aggrieved by the issuance of summons, the said accused CRL.P. NO.101729 OF 2017 72 immediately on receipt of the summons and/or on appearance before the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followed on account of delay and latches.
CRL.P. NO.101729 OF 2017 73
10. POINT NO. (iii): Would the iron ore stackyard come within the definition of industry or Industrial plant?
10.1. Sri.Naik, learned counsel for the Petitioner has vehemently argued that iron ore stacking would not amount to an industry and therefore, the requirement of Air Act and Water Act would not be applicable to the Petitioner.
10.2. Section 2(k) of the Air Act reads as under:
""industrial plant" means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere."
10.3. The contention of Sri.Naik, learned counsel for the Petitioner is that Section 2(k) refers to an industrial plant that would necessarily imply that there would have to be a CRL.P. NO.101729 OF 2017 74 manufacturing activity or the like which is conducted by the Petitioner. The Petitioner has not installed any plant and machinery in the port area. The Petitioner is only making use of the said area allocated for storing of iron fines/iron ore. The same would therefore not amount to an industrial plant and therefore he contends that the restrictions imposed under Section 21 would not apply to the Petitioner.
10.4. Per contra, Sri. Gachchinamath, learned counsel for the respondent submitted that though the heading under Section 2(k) of Air Act is an industrial plant, the same also includes any plant used for trade purposes and emanating air pollutant into the atmosphere. He submitted that admittedly when the Petitioner is making use of the CRL.P. NO.101729 OF 2017 75 area for trade inasmuch as the iron ore is stacked in the said area, loaded on to ships coming to the port for transport to China and as such, by using the port area the Petitioner is carrying out trade in iron ore. Therefore, he submitted that the trade carried out by the Petitioner would come within the ambit of Section 2(k) of the Air Act in pursuance of which Section 21 of the Air Act would be applicable to the Petitioner. 10.5. I'am of the considered opinion that the contentions urged by Sri. Naik, learned counsel for the Petitioner is hyper-technical in nature, a polluter cannot be allowed to get away from consequences of the pollution caused on a hyperbolic argument. The fact remains that there is a serious allegation of pollution caused. The fact CRL.P. NO.101729 OF 2017 76 further remains that the Petitioner has not obtained any consent from the Pollution Control Board for the purposes of carrying out such trade by way of stacking iron ore in the port area. The only contention urged is that the obligation of obtaining such consent is on the port authorities and not that of the Petitioner. The petitioner had earlier obtained consent for operation which was not extended due to failure of the petitioner to comply with the requirement laid down by the KSPCB. Thus, in this background, the present contention urged is infact dishonest if not fraudulent, non- obtaining of a consent for establishment or consent for operation itself is an offence. If at all, the petitioner had any issue about applicability of the Air Act, Water Act or CRL.P. NO.101729 OF 2017 77 obtaining such consent, [which cannot be so in the present case] since the petitioner had obtained such consent, the petitioner ought to have approached KSPCB seeking for clarification which also has not been done. A polluter cannot after causing pollution contend that the petitioner was not aware and/or that there was any doubt about the applicability of Environment Protection Act like Air Act, Water Act etc. 10.6. Pollution anywhere is cause for worry and any pollution caused gives a cause of action for the initiation of proceedings against such polluter.
10.7. 'Air pollutant' is defined under Section 2(a), which reads as under:
"air pollutant", means any solid, liquid or gaseous substance [(including noise)] CRL.P. NO.101729 OF 2017 78 present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment".
10.8. 'Air Pollution' is defined under Section 2(b), which reads as under:
"air pollution" means the presence in the atmosphere of any air pollutant."
10.9. 'Emission' is defined under Section 2(j), which reads as under:
"emission" means any solid or liquid or gaseous substance coming out of any chimney, duct, or flue or any other outlet".
10.10. Reading of three definitions together which clarifies that any pollution caused by air pollution emitted into the atmosphere either in solid or liquid or gaseous form including noise in such concentration as may be or tend/s to be injurious to human beings or CRL.P. NO.101729 OF 2017 79 other living creatures or plants or property or environment would amount to air pollution.
10.11. In the present case, the Petitioner is stated to have dumped iron ore in the area allocated to it in an open space. Iron ore as a term would indicate is the mineral iron ore contained in soil, which needs to be extracted therefrom. Thus, in a sense what is dumped in port area is soil containing iron ore. Once the soil dries up, there is a great possibility of dry soil being blown away by the air spreading the dry soil along with iron ore in and around the area of port. If not for the Petitioner having used the area for dumping of the iron ore, no pollution could have occurred. Whether it occurred or not is a subject matter of trial? However, the CRL.P. NO.101729 OF 2017 80 allegation as regards occurrence of the air pollution on the basis of the iron ore being dumped by the Petitioner in the allocated area is something which requires investigation and if found to be true and correct, the same would require the Petitioner to stand trial.
10.12. The Petitioner cannot try and escape the prosecution for an offence of pollution of the environment on the ground that the dumping of iron ore does not amount to carrying out of any industrial activity. The foresight of the legislature to cater such an argument is apparent from a reading of Section 2(k) which includes the word "trade".
CRL.P. NO.101729 OF 2017 81 10.13. The trade or business as in its general meaning would include the activities of the Petitioner in using the port area for storing the iron ore for future transport. Thus, I am of the considered opinion that stacking of iron ore though not an industrial plant by itself but being used for the purposes of trade would come within the definition of Section 2(k), thus, bringing into application Section 21 of the Air Act.
10.14. It is under Section 21 that various consent and permissions are required to be obtained as also ameliorative measures are required to be taken by a person who carries on such trade in a manner as to affect the environment in a detrimental manner.
CRL.P. NO.101729 OF 2017 82 10.15. The fact that the allocated area is a port area, there are villages around the area also ocean beside the area would also be of considerable importance. Since apart from dry iron ore being blown away by the wind, in the event of rains occurring, the water which mixes with the said iron ore could seep into the ground, polluting the groundwater and mixing with the ocean nearby, which would cause environmental damages to the habitat as also adversely affecting the fishes and other living creatures in the ocean. If there is large scale pollution of this kind, it could also result in an ecological disaster causing untold harm and misery to human beings and the environment, even resulting in large scale death of aquatic life.
CRL.P. NO.101729 OF 2017 83 10.16. Encyclopedia Britannica defines Genocide as "the deliberate and systematic destruction of a group of people because of their ethnicity, nationality, religion, or race.
The term, derived from the Greek genos ("race," "tribe," or "nation") and the Latin cide ("killing"), was coined by Raphael Lemkin, a Polish-born jurist who served as an adviser to the U.S. Department of War during World War II." 10.17. The United Nations Office on Genocide prevention gives the background of Genocide as under:
The word "genocide" was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have Genocide recognised and codified as an international crime.
CRL.P. NO.101729 OF 2017 84 10.18. In my opinion, the large scale destruction of environment and habitat of animals is no less than the offence of Genocide, since it is the destruction of the environment, the offence would qualify to be "Ecocide", which would amount to causing the death and destruction of the environment and other living creatures. It is time that this aspect is recognised and due action thereon taken in our country, like that taken in other countries.
10.19. Dictionary.com defines ecocide as:
"the destruction of large areas of the natural environment by such activity as nuclear warfare, overexploitation of resources, or dumping of harmful chemicals."
10.20. Merrium Webster defines ecocide as:
"the destruction of large areas of the natural environment as a consequence of human activity"
CRL.P. NO.101729 OF 2017 85 10.21. It is now absolutely required for the preservation of human life as we now know it, to preserve the environment and nature. It is only by preservation of the environment and nature that mankind can be preserved. There is an absolute and imperative need for all to adopt sustainable living and development. Man must not only sustain himself but also sustain nature, which sustains him.
10.22. In view thereof, the Pollution Control Authorities are required to be ever vigilant to avoid, if possible, the occurrence, if not, when it occurs to stop such pollution, by taking necessary steps immediately. Thereafter to initiate necessary action by following due procedure of law to punish the guilty so that the same has a deterrent CRL.P. NO.101729 OF 2017 86 effect as against future violators. The principle of "Polluter Pays" would also be applicable to take restorative action for such pollution or environmental destruction caused.
10.23. Hence, I answer Point No.(iii) by holding that stacking of iron ore would amount to an industrial plant within the meaning of Section 2(k) since iron ore is used for purposes of trading, the said stacking of iron ore if causing Air and/or Water pollution, the person or entity causing and or responsible for such stacking and causing pollution would be liable to be prosecuted under the penal provisions of the Air and Water Act and/or any other environment protection Act/s CRL.P. NO.101729 OF 2017 87 applicable thereto, as also to impose such fine as may be required to restore the environment by applying the principle of "polluter pays".
11. POINT NO. (iv): Whether in any matter relating to pollution, Directors of an incorporated body like a company can be prosecuted? If not, who are concerned persons to be prosecuted?
11.1. Relying on the decision in Sunil Bharti Mittal's case, Sri.Naik, learned counsel for the Petitioner has contended that the Managing Director of the Company could not be prosecuted for an offence under the Air Act or Water Act.
CRL.P. NO.101729 OF 2017 88 11.2. The offence complained of in Sunil Bharti Mittal's case was as regards obtaining of licence by using corrupt means where it is alleged that the Managing Director was personally not involved in the said offence and merely because a person is a Managing Director, he could not be prosecuted for any such offence unless there is a specific allegation which is made against the said Managing Director to have been involved in that particular offence. The relevant paras of said decision have been extracted hereinabove.
11.3. As observed above the said decision in Sunil Bharti Mittal's case would be applicable only to criminal offences requiring mens rea and in my considered opinion, the same is not applicable to the offences where there is CRL.P. NO.101729 OF 2017 89 environmental damage caused, as regards which, the principles of strict liability apply, thus, the defences available under the principles of "vicarious liability" would not be available.
11.4. The term 'occupier' is defined under Section 2(m) of the Air Act, which reads as under:
"occupier", in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance"
11.5. From the definition of occupier extracted above, it is clear that any person who has control over the affairs of the factory or the premises would be the occupier. As stated in the case title, Muneer Enterprises is managed and controlled by Musheer Ahmed. Therefore, CRL.P. NO.101729 OF 2017 90 he fulfills the requirements of the definition of an occupier.
11.6. In view of the said facts, I am of the considered opinion that any person who has control over the affairs of the premises could be prosecuted for offences under the Air Act. 11.7. I answer Point No. (iv) by holding that in any matter relating to pollution, Directors of an incorporated body like a company can be prosecuted if in charge of and responsible for the pollution caused as also such other persons who are in charge of and responsible for such pollution can be prosecuted for such pollution.
11.8. As regards proprietary concerns needless to state the proprietor would be CRL.P. NO.101729 OF 2017 91 responsible, in case of partnership firms, the partners would be responsible and liable to be prosecuted, along with all such other persons who are in charge of and responsible for such pollution.
12. POINT NO. (v): Can a tenant or a licencee of the property contend that the liability of obtaining permission from the respective Pollution Control Board would be that of the owner and the tenant/licensee has nothing to do with it?
12.1. Neither the Air Act nor the Water Act makes any distinction between the owner and/or a tenant of a industry, factory or premises. The Act only refers to and applies itself to pollution being caused.
CRL.P. NO.101729 OF 2017 92 12.2. Unless there is a contract to the contrary that a owner of the premises is to obtain permissions under the relevant pollution control Act, it would be for the alleged polluter to obtain necessary permissions and/or consent under the Air Act or Water Act. 12.3. Section 21 of Act also does not make a distinction between the owner and/or a tenant insofar as it states ".... No person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. ...."
12.4. Thus, the allegation in the present case being that the Petitioner has caused pollution and/or the Petitioner is operating the iron ore stackyard, it was for the Petitioner to obtain the necessary permission and/or consent from the jurisdictional Pollution Control Board.
CRL.P. NO.101729 OF 2017 93 12.5. It is also relevant to take note of the fact that for the period from 01.07.2004 to 30.06.2004, the Petitioner had obtained consent for operation under the Water Act and Air Act for stacking ore at Aligadda whereunder certain conditions were required to be followed. It is on account of the Petitioner not complying with the said conditions that the consent applications were returned by the Pollution Control Board to the Petitioner for want of compliance. This fact would also go to show that the Petitioner was always aware of its obligation to obtain the necessary consent from the Pollution Control Board and it is only after prosecution has been initiated that the Petitioner has taken up the above contention.
CRL.P. NO.101729 OF 2017 94 12.6. The allotment letter issued by the port authorities reads as follows:
"No.LND/CR-48/2005-06 Office of the Port Office, Karwar Dated: 1/12/2005.
To, M/s Muneer Enterprises, Mines Owners and Exporters, Masjid-E-llah Compound Hampi Road Hospet-583 201 Sir, Sub: Karwar Port-Allotment of Port land for stacking of Iron-Ore at karwar Port-Reg.
Ref: 1. Your letter dated 29-11-2005.
2. Director's Endt. No.PIWT-50/LND(2)/ 2005 Dated 30.11.2005.
With reference to the letter cited on the above subject, M/s Muneer Enterprises, Hospet has been permitted to stack Iron-Ore on 4000 sq.mts of port land at Aligadda, Baithkol, Karwar adjacent to land allotted to M/s Dream Logistics Company Ltd., on weekly rental basis with effect from 1-12-2005 for the export of Iron-Ore through Karwar port subject to the following conditions.
1. Obtain consent from Karnataka Pollution Control Board under Water Act/Air Act before CRL.P. NO.101729 OF 2017 95 commencement of any activities on the said site.
2. The departmental building existed on the land allotted should be demolished at their own cost as per the directions of the department.
3. They are requested to pay the cost of the building to the department or to construct alternative building in the site shown by the department and hand it over to the department after obtaining necessary clearances.
4. Barricade of sufficient height and length should erected above 3 feet height of the cargo stacked, so that no dust nuisance occur in the surrounding area.
5. Proper and continuous water sprinkling system should be adopted to suppress the fine dust particles.
6. The Stored Iron ore should be covered properly.
7. The movement of lorries carrying Iron-ore should be regulated.
8. No objection letter should be obtained from pollution Control Board.
9. Should obtain necessary permissions /clearance from all other concerned authorities.
10. Comply the provisions of Karnataka Landing and Shipping Fees Rule 1961 and Rules framed there under.
CRL.P. NO.101729 OF 2017 96
11. The land allotment is purely on temporary basis you are liable to hand over the port land back to the Department as and when required for departmental activities without claiming any compensation / Damage / concession.
Yours faithfully, Port Officer, Karwar Copy with compliments submitted to the Director of Ports & IWT, Karwar for favour of information."
12.7. From the reading of the above, it is seen that as per Condition No.1, the said Muneer Enterprises was required to obtain consent from KSPCB under Water Act and Air Act before the commencement of any activities as also to comply with several conditions as extracted above. Irrespective of whether the petitioner is a owner or a tenant or whether the land is owned by port authorities or otherwise, even at the time of allotment, it was made clear that it was for the petitioner CRL.P. NO.101729 OF 2017 97 to obtain consent from KSPCB. In the said background, it cannot now lie for the petitioner to contend that the consent was to be obtained by the port authorities. Be that as it may. This would also be a subject matter of trial. If at all, the port authorities are also liable, they can also be brought on record as additional accused in terms of Section 41 of the Air Act. Governmental authorities who violate Environmental Protection Act including the Air Act, Water Act could be liable for prosecution for such offences, the concerned persons who were incharge of such government department at that point of time can always be prosecuted.
12.8. In view of the above, I answer Point No.(v) by holding that a tenant or a licensee of a property or anyone who CRL.P. NO.101729 OF 2017 98 operates any industrial plant or trade activity in the air pollution control area would have to obtain the necessary consent and/or permission from the jurisdiction Pollution Control Board unless there is a contract to the contrary between such tenant and owner of the premises or a licensee and licensor of the premises, requiring the Owner or Licensor to obtain such consent and/or permission.
13. POINT NO. (vi): What order? 13.1. In view of the above findings, the only issue where the Petitioner has been able to make out a case is as regards non-application of mind by the Magistrate while taking cognisance. Hence, the matter is remanded CRL.P. NO.101729 OF 2017 99 to the JMFC, II Court, at Karwar to the stage of taking cognisance.
13.2. The Magistrate is directed to apply his mind and pass a reasoned order as to why cognisance is being taken or not taken in the matter as per the observations made herein and proceed therefrom. Considering that the matter is of the vintage of the year 2005, the Magistrate is directed to pass necessary orders within 15 days of receipt of this order.
13.3. In the event of the Magistrate taking cognisance, there would be no fresh summons required to be issued, since the accused is already before the Court. The Magistrate shall endeavour to dispose of this matter as expeditiously as possible in any CRL.P. NO.101729 OF 2017 100 event within one year of the passing of the order of cognisance.
14. The petition is partly allowed.
Sd/-
JUDGE Prs*