Bombay High Court
Rl Shenoy And Ors vs State Of Maharashtra on 18 July, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:28274
SWAROOP Digitally signed
by SWAROOP
SHARAD SHARAD PHADKE
Date: 2024.07.19
PHADKE 10:17:48 +0530
apl 732 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.732 OF 2023
1. M/s. Sunshield Chemicals Ltd.
Unit Rasal Post Pali,
Tal. Sudhagad, Dist. Raigad 410 205
through its Authorized Representative
Mr. Amit Kumashi, age 41 years
2. Shekhar Pattekar, age 63 years,
Factory Manager M/s. Sunshield
Chemicals Ltd., having address
at Village Rasal, Post Pali,
Tal. Sudhagad, Dist. Raigad - 410 205 ... Applicants
versus
1. The State of Maharashtra
2. Arun Mahadev Khade,
Age 60 years, having his
residential address, Village Rasal,
Post Pali, Tal Sudhagad,
Dist. Raigad 410 205 ... Respondents
WITH
CRIMINAL APPLICATION NO.1175 OF 2023
1. R.L.Shenoy, Age about 75 years,
M/s. Sunshield Chemical Ltd.,
Rasal, Having address at Phoenix House,
A Wing, 4th Floor, 482 Senapati Bapat
Marg, Lower Parel (W), Mumbai - 400 013.
2. Manoj Khullar, Age about 52 years,
Ex-Managing Director M/s. Sunshield
Chemical Ltd., having address at
Phoenix House, A Wing, 4th Floor, 482,
Senapati Bapat Marg, Lower Parel (W),
Mumbai - 400 013
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3. Arun Soman, age about 70 years,
Director M/s. Sunshield Chemical Ltd.,
having address at Phoenix House,
A Wing, 4th Floor, 482, Senapati
Bapat Marg, Lower Parel (W),
4. Amit Kumashi, age about 40 years,
Company Secretary M/s. Sunshield
Chemical Ltd., having address at
Phoenix House, A Wing, 4th Floor, 482,
Senapati Bapat Marg, Lower Parel (W),
Mumbai - 400 013
5. Rajeev Gupte, age about 64 years,
Ex Chief Financial Officer
M/s. Sunshield Chemical Ltd.,
having address at Phoenix House,
A Wing, 4th Floor, 482, Senapati
Bapat Marg, Lower Parel (W),
Mumbai - 400 013
6. Ajit Shah, age about 76 years,
M/s. Sunshield
Chemical Ltd., having address at
Phoenix House, A Wing, 4th Floor, 482,
Senapati Bapat Marg, Lower Parel (W),
Mumbai - 400 013 ... Applicants
versus
1. The State of Maharashtra
2. Arun Mahadev Khade,
Age 60 years, having his
residential address, Village Rasal,
Post Pali, Tal Sudhagad,
Dist. Raigad 410 205 ... Respondents
Mr. Girish Kulkarni, Sr. Advocate with Mrs. Tanmayi Rajadhyaksha, Mr. Aditya
Chavan, Mr. Samuel Abraham i/by India Law LLP for Applicants.
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Ms. Radha D. Humane, APP for Respondent No.1.
Mr. Sagar Talekar, for Respondent No.2.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 20 MARCH 2024
PRONOUNCED ON : 18 JULY 2024
JUDGMENT :
1. These applications under Section 482 of the Code of Criminal Procedure, 1973 assail the legality, propriety and correctness of the judgment and order dated 27 January 2023 passed by the learned Additional Sessions Judge, Mangaon, in Criminal Revision Application No.18 of 2022, whereby the learned Additional Sessions Judge was persuaded to reject the revision application and affirm the order dated 21 July 2022 passed by the learned Judicial Magistrate, First Class, Pali in Regular Criminal Case No.2 of 2020 (as corrected by the order dated 15 September 2023) of issue of process against the applicants for the offences punishable under Sections 15 and 16 of the Environment (Protection) Act, 1986.
2. The Applicants in Criminal Application No.732 of 2023 are the original Accused Nos.1 and 8 and the applicants in Criminal Application No.1175 of 2023 are the original accused Nos.2 to 7.
3. Shorn of unnecessary details, the background facts leading to these SSP 3/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc applications can be stated as under :
3.1 For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity in which they are arrayed before the learned Magistrate in Regular Criminal Case No.2 of 2020.
3.2 M/s. Sunshield Chemicals Ltd. - Accused No.1 is a company registered under the provisions of the Companies Act, 1956. Mr. Shekhar Pattekar (A8) is the factory manager of the accused No.1 company. Accused Nos.2 to 7 claimed to be the erstwhile and/or current directors / managerial persons / officers of M/s. Sunshield. Respondent No.2 - complainant is the resident of Village Rasal and claims to be a social activist.
3.3 Respondent No.2 lodged a complaint before the learned Magistrate against M/s. Sunshield and Accused Nos.2 to 8 as well as the then Secretary, Maharashtra Pollution Control Board, (MPCB) Regional Office, Raigad, alleging the commission of offences under Sections 15 and 16 of the Environment (Protection) Act, 1986. The substance of the said complaint and, consequently, the accusation against accused Nos.1 to 8 can be summerized as under.
(a) MPCB is a regulatory body. One of the duties of MPCB is to provide the entities with 'consent to operate' and carry on their operations if they satisfy the conditions, subject to which such permission has been granted.SSP 4/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 :::
apl 732 of 2023.doc On 23 February 2006, MPCB had issued consent to operate to M/s. Sunshield (A1), under the Water Act and Air Act, subject to certain conditions, inter alia, related to discharge of effluents and emissions. By a subsequent order dated 25 July 2016, MPCB gave consent to M/s. Sunshield to continue its manufacturing activities upto 28 February 2021 and by a further order dated 19 March 2021, the said consent has been renewed till 28 February 2026, subject to certain conditions prescribed thereunder regarding the emissions and discharge of effluents.
(b) The complainant alleged that M/s. Sunshield has not set up common effluent treatment plants (ETP) and its current ETP was not functional. M/s. Sunshield has thus been discharging more untreated effluent from its premises into the nearest natural nala, which leads to Amba River, the main source of water. M/s. Sunshield is, thus, polluting the river water and violating the provisions of the Environment Act, and the conditions subject to which consent has been given to M/s. Sunshield to carry out the manufacturing activities.
(c) In order to substantiate the allegations, the complainant has referred to a show cause notice dated 5 March 2012 given by MPCB to M/s. Sunshield indicating that JVS collected from the factory premises was found to SSP 5/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc be exceeding the limits of pH, BOD, COD, S.S. Chloride and total Ammonical Nitrogen parameters specified by the MPCB.
(d) A reply was given to the said show cause notice by M/s. Sunshield. No further action was initiated by MPCB. On 9 September 2017, Mr. Mahendra Mahadev Khade, filed a complaint before the Sub-Divisional Magistrate, Roha against M/s. Sunshield for initiation of action under Section 133 of the Code, alleging discharge of effluents by M/s. Sunshield into Amba river.
(e) Based on the inspection report that the effluents or polluted water were not discharged into Amba river, the Sub-Divisional Magistrate disposed the said complaint.
(f ) On 27 September 2018, MPCB issued an order to M/s. Sunshield noting that M/s. Sunshield was sending high COD effluent to the tune of 4 CMD to CETP Talegaon, since last few months and, thus, became a cause of river pollution. It was further pointed out that M/s. Sunshield's JVS results exceeded the prescribed limits. Invoking the powers under Section 33A of the Water Act, MPCB ordered M/s. Sunshield to close its manufacturing activities within 72 hours.
(g) Pursuant to the representation of M/s. Sunshield, initially MPCB issued abeyance order dated 1 October 2018. By an order dated 9 October 2018, SSP 6/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc revoking the abeyance order, MPCB ordered the closure of the manufacturing activities of M/s. Sunshield.
(h) It appears, on 19 October 2018 M/s. Sunshield made a representation and gave certain undertaking, including that as an interim measure, M/s. Sunshield would halt manufacturing of the high COD generating products and would ensure that the zero liquid discharge proposal was implemented within a period of two months. Thereupon, on 20 October 2018, MPCB allowed M/s. Sunshield to restart it's manufacturing activities subject to certain compliances.
(i) The complainant issued a notice under Section 19(b) of the Environment Act, to MPCB calling upon MPCB to initiate legal action against M/s. Sunshield as the latter was directly discharging untreated effluent into the nearest nala; violated the MPCB's Circular No.MPN-SS 1942 dated 20 April 2015; violated the enforcement policy issued by MPCB dated 29 February 2016; and violated the directions of the Supreme Court in the order in WP(C) No.375 of 2012.
(j) Since the MPCB did not initiate legal action against M/s. Sunshield, the complainant lodged the instant complaint.
(k) By an order dated 21 July 2022, the learned Magistrate was SSP 7/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc persuaded to issue process against the accused for the offences punishable under Sections 15 and 16 of the Environment (Protection) Act, 1986. By a further order dated 15 September 2023, the order dated 21 July 2022 was corrected to read as process was ordered to be issued against accused Nos.1 to 8 instead of both the accused.
4. Being aggrieved, the applicants preferred Revision Application before the learned Additional Sessions Judge, Mangaon. By the impugned judgment and order dated 27 January 2023, the learned Additional Sessions Judge dismissed the Revision Application holding, inter alia, that the learned Judicial Magistrate was justified in issuing the process against the accused on the basis of the material on record.
5. Being further aggrieved, the accused have preferred these applications.
6. An affidavit in reply has been filed on behalf of the Respondent No.2 - complainant opposing the prayers in the instant applications.
7. I have heard Mr. Girish Kulkarni, learned Senior Advocate for the Applicants-accused, Ms. Humane, learned APP for the State, and Mr. Talekar, learned Counsel for the Respondent No.2 - complainant. The learned Counsel took the Court through the material on record, including the orders passed by the learned Magistrate and the learned Additional Sessions Judge. Having SSP 8/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc regard to the nature of the controversy, it was considered appropriate to call a report from MPCB. The Regional Officer, MPCB, Raigad, has submitted a report on 1 February 2024.
8. Mr. Kulkarni, learned Senior Advocate for the Applicants strenuously submitted that the order passed by the learned Magistrate is manifestly illegal. From a bare perusal of the cause title of the complaints, it becomes evident that most of the accused are residing beyond the territorial limits of the jurisdiction of the learned Magistrate. It was, therefore, incumbent upon the learned Magistrate to hold an inquiry under Section 202(1) of the Code. The inquiry contemplated by sub-Section (1) of Section 202 of the Code is peremptory where the accused resides beyond the local limits of the jurisdiction of the Magistrate.
9. Secondly, Mr. Kulkarni would urge, the learned Magistrate did not at all advert to the aspect as to whether the accused Nos.2 to 8 can be held vicariously liable by invoking the provisions contained in Section 16 of the Environment (Protection) Act. Few of the accused have ceased to be the directors and/or officers of the accused No.1 Company. Few of the accused are non-executive and independent directors. Thus, they could not have been roped in by invoking the provisions contained in Section 16 of the Environment (Protection) Act. SSP 9/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 :::
apl 732 of 2023.doc The non-application of mind by the learned Magistrate is evident from the fact that initially the process was ordered to be issued against "both the accused", when, in fact, in addition to the company, accused Nos.2 to 9 were arrayed as accused. Subsequently, the said order was modified to read as the Accused Nos.2 to 8.
10. On the merits of the matter, Mr. Kulkarni would urge that the instant prosecution at the instance of the complainant is an act of wreaking vengeance. Mr. Mahendra Khade, a brother of the complainant, had filed proceedings under Section 133 of the Code being Misc. Dispute No.2 of 2018, making self- same allegations. The Sub-Divisional Officer, Roha, directed an inspection by the Executive Magistrate, Sudhagad. A clear and categorical inspection report was submitted that no untreated water had been discharged in the Amba River. Thereupon, the said dispute application came to be dismissed on 30 July 2018. Subsequently, the complainant has again lodged the instant complaint before the learned Magistrate with the very same allegations. On this count also, the impugned orders deserve to be quashed and set aside as the complainant is a clear abuse of the process of the Court.
11. Mr. Kulkarni further submitted that there is no material to indicate that the accused No.1 had discharged untreated water and effluents in Amba River. SSP 10/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 :::
apl 732 of 2023.doc The authorities were fully satisfied with the compliances made by the accused No.1 and, by an order dated 20 October 2018, permitted the accused No.1 to restart its manufacturing activities.
12. A reference was also made to the Report submitted by the Regional Officer, MPCB, Regional Office, Raigad on 1 February 2024 to the effect that the accused No.1 and other industries located on the bank of Amba river have provided treatment facilities for the generated effluent as per the consent condition and 'zero liquid discharge system' was found in operation. Nor the inspection revealed that there was any direct/indirect discharge of treated and untreated effluent outside the industrial premises. In view of the aforesaid report, according to Mr. Kulkarni, the prosecution of the accused would tantamount to abuse of the process of the Court.
13. Learned APP supported the impugned orders.
14. Mr. Talekar, learned Counsel for Respondent No.2 - complainant stoutly resisted the prayers in the applications. At the outset, it was submitted that reliance on the report dated 1 February 2024 of the Regional Officer, MPCB, Raigad, is wholly misplaced as the inspection was carried out on 25 th and 29th January 2024. The offence in question relates to the period during which MPCB had directed the closure of the manufacturing activities of accused No.1. SSP 11/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 :::
apl 732 of 2023.doc The Applicants/accused, therefore, cannot be permitted to wriggle out of the situation by banking on a report of inspection carried out in the year 2024.
15. Mr. Talekar further submitted that the proceedings under Section 133 of the Code lodged by the brother of the complainant, cannot be equated with the complaint under the provisions of the Code. In any event, the said proceedings pertained to the period prior to the inspection by the authorities and the order of closure consequent thereto. It was urged with a degree of vehemence that the closure order dated 27 September 2018 is, in itself, a proof of the commission of the offences under Sections 15 and 16 of the Environment (Protection) Act. Compliances subsequently made on behalf of the accused No.1 resulting in permission for restarting it's manufacturing activities by order dated 20 October 2018, neither efface the offences nor dilute the gravity thereof.
16. Mr. Talekar further urged that the complainant had given notice under Section 19(b) of the Environment (Protection) Act, before lodging the complaint. There was no reply to the said notice. Thus, technical defences now sought to be raised on behalf of the applicants, according to the learned Counsel for the complainant, do not merit acceptance as the issue of irreparable harm caused to the environment on account of discharge of untreated water into Amba river is at the heart of the matter. Whether the applicants had not at all SSP 12/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc discharged untreated water and effluent into the Amba river would be a matter for trial. Therefore, at this nascent stage, a serious complaint of water pollution cannot be scuttled without trial, submitted Mr. Talekar.
17. I have given careful consideration to the submissions canvassed across the bar. With the assistance of the learned Counsel for the parties, I have also perused the material on record.
18. The challenge to the impugned orders can be divided into two parts. One, the legality of the order for non-compliance with the mandate contained in Section 202(1) of the Code and the bar to the entertainment of purported second complaint. Two, whether in the facts of the case, the learned Magistrate correctly exercised the jurisdiction to issue process.
19. To begin with the challenge to the tenability of the complaint on the ground that it is, in effect, a second complaint in respect of one and the same allegation.
20. The challenge was premised on the proceedings under section 133 of the Code filed by Mahendra Khade. A perusal of the order passed by the Sub Divisional Officer, Roha dated 30th July, 2018 indicates that Mahendra Khade had filed the said proceedings alleging nuisance on account of the discharge of the effluents directly into Amba river. The Executive Magistrate was requested SSP 13/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc to take action under section 133(1)(b)(c) and (d) of the Code. It was alleged in the said proceedings that M/s. Sunshield had discharged the effluents in a nearby nala flowing into the Amba river. It was alleged that since the year 2014, the Sunshield (A/1) was releasing the effluents into the said nala. Mahendra Khade further contended that there was possibility of exposure on account of inappropriate storage of ethylene oxide for the manufacturing activity. Certain other instances of breach of the consent conditions were highlighted. By the order dated 30th July, 2018 the Sub Divisional Magistrate, Roha dismissed the said dispute application. It was, inter alia, recorded that the inspection carried out on 14th March, 2018 by Executive Magistrate, Sudhagadh did not reveal that there was any discharge of generated effluents into the Amba river.
21. Mr. Kulkarni, learned senior counsel, strenuously submitted that the complainant, who is the brother of Mahendra Khade, has lodged the instant complaint with the self allegations and, therefore, the second complaint is not at all tenable in law.
22. I have carefully perused the assertions in the Dispute Application No. 2 of 2018 and the order passed by the Special Divisional Officer, Roha. I find it rather difficult to agree with the submissions of Mr. Kulkarni that Dispute Application for initiating action under section 133 of the Code can be equated with a SSP 14/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc complaint for commission of offences under sections 15 and 16 of the Environment (Protection) Act, 1986, unreservedly. The nature of proceedings and scope of inquiry by the Executive Magistrate under section 133 of the Code, is quite distinct from a complaint for commission of the offences under the Environment (Protection) Act, 1986. On first principles, the application to the Executive Magistrate to take action envisaged by section 133 of the Code, cannot be construed to be a "complaint" within the meaning of section 2(d) of the Code. A complaint under section 2(d) of the Code is essentially an allegation made to a Magistrate that some person has committed an offence, with a view that the Magistrate takes action under the Code.
23. The object of the proceedings under section 133 of the Code is to empower the District Sub Divisional Officer or Executive Magistrate to take action primarily to remove obstruction or nuisance and direct the persons to take order with regard to a particular thing or activity. The two provisions clearly operate in different spheres. The fact that the Executive Magistrate has declined to take action on the basis of application under section 133 of the Code does not preclude the affected party from filing a complaint alleging commission of offence in respect of the same subject matter, if an offence is otherwise made out.
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24. It is trite law that even when the first complaint has been dismissed by the Magistrate, there is no complete embargo on filing a second complaint. If it could be demonstrated that the first complaint was not dismissed on merits and/or there are sufficient grounds which warrant entertainment of second complaint, the Magistrate is not debarred from taking cognizance of the offence on the basis of second complaint. The dismissal of a complaint, otherwise than on merits or discharge of an accused does not amount to acquittal for the purpose of section 300 of the Code.
25. A useful reference in this context can be made to a pronouncement of the Supreme Court in the case of Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar1 wherein the law was enunciated as under :
48] Under the Code of Criminal Procedure the subject of "Complaints to Magistrates" is dealt with in Chapter XVI of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are ss.200, 202 and
203. Section 200 deals with examination of complainants and ss. 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of ss. 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Chadigaonker(1). The scope of enquiry under s. 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and s. 203 lays down what materials are to be considered for the purpose. Under s. 103 Criminal 1 AIR 1962 SC 876.SSP 16/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 :::
apl 732 of 2023.doc Procedure Code the judgment which Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to materials and from his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under s. 202, Criminal Procedure Code, and has judicially applied him mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under s. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into Allah Ditta v. Karam Baksh(1), Ram Narain Chaubey v.
Panachand Jain(2), Hansabai v. Ananda(3), Doraisami v. Subramania (4). In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in cases above quoted and adopted the opinion of Macleam, C. J. in Queen Empress v. Dolegobinda Das (5) affirmed by a full Bench in Dwarka Nath Mandal v. Benimadhab Banerji (6). It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.
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26. In the case of Jatinder Singh vs. Ranjit Kaur , the Supreme Court considered the question whether the second complaint would be maintainable, if the first complaint was dismissed for default in appearance. The Supreme Court referred to the aforesaid observations in the case of Pramatha Talukdar (supra) and expounded the law as under:-
9] There is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that the dismissal of a complaint or the discharge of an accused is not an acquittal for the purpose of this Section. However, when a magistrate conducts an inquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance.
.... .....
12] If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was under Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar (AIR 1962 SC 876).
27. In the case Samta Naidu vs. State of M.P.3 the Supreme Court after a 2 (2001) 2 SCC 570.
3 2019 SCC OnLine SC 1781.
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apl 732 of 2023.doc survey of precedence right from the decision in the case of Pramatha Talukdar (supra) enunciated the law as under:-
13] The application of the principles laid down in Taluqdar in Jatinder Singh shows that "a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance". It was further laid down that "if the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different". To similar effect are the conclusions in Ranvir Singh 4 and Poonam Chand Jain5. Para 16 of the Poonam Chand Jain also considered the effect of para 50 of the majority judgment in Talukdar6. These cases, therefore, show that if the earlier disposal of the complaint was on merits and in a manner known to law, the second complaint on "almost identical facts" which were raised in the first complaint would not be maintainable. What has been laid down is that "if the core of both the complaints is same", the second complaint ought not to be entertained. (emphasis supplied)
28. If the aforesaid principles are applied to the facts of the case at hand, in my considered view, the decision on an application under section 133 of the Code by an Executive Magistrate, cannot be clothed with the authority of an order of dismissal of a complaint under section 203 of the Code. A proceedings under section 133 of the Code does not qualify to be a complaint within the meaning of section 2(d) of the Code.
4 (2009) 9 SCC 642 5 (2010) 2 SCC 631 6 AIR 1962 SC 876 SSP 19/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc
29. I also find substance in the submissions of Mr. Talekar, learned counsel for respondent No. 2, that the Dispute Application under section 133 of the Code pertained to a different period. As noted above, the Executive Magistrate, Sudhagadh had carried out the inspection on 14 th March, 2018. The order of closure passed by the Regional Officer, MPCB was based on the report submitted by the SDO, Raigad on 18 th August, 2018. Prima facie, the basis of the direction to close the manufacturing activity appears to be a report subsequent to the inspection carried out by the Executive Magistrate, Sudhagadh. Thus, both on the factual score as well as on legal premise, the challenge to the instant complaint on the ground that it constitutes a second complaint in respect of self- same allegations does not deserve countenance.
30. The submission of Mr. Kulkarni that the learned Magistrate did not follow the mandate contained in section 202(1) of the Code as amended by the Act, 25 of 2005, however, appears to carry some substance. Under the amended provisions of section 202(1), the Magistrate is enjoined to postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. Evidently, the Parliament has used the word, "shall" while introducing the said interdict in the matter of issue of process where the accused does not reside SSP 20/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc within the local limit within the jurisdiction of the Magistrate. Whether this provision has any application to the facts of the case at hand ?
31. From a bare perusal of the cause title of the complaint, it appears that accused Nos. 2 to 7 were shown to be residing at the places beyond the local limits of the jurisdiction of the learned Magistrate. It does not appear that the learned Magistrate took note of the fact that in the complaint the accused Nos. 2 to 7 were shown to be the residents of the places beyond the limits of his jurisdiction. From the perusal of the impugned order dated 21 st July, 2022, it appears that upon perusal of the complaint and the verification statement of the complainant, the learned Magistrate straight away proceeded to issue process against the accused. Prima facie, it appears that the applicability of the provisions warranting the postponement of the issue of process and holding an inquiry, did not engage the attention of the learned Magistrate.
32. The legal position is well settled. The aforesaid provision warranting postponement of issue of process and holding of an inquiry where the accused resides beyond the local limits of the jurisdiction of the Magistrate, has been construed to be of mandatory nature. The use of the expression, "shall" coupled with the object behind introducing such an interdict, makes the said provision mandatory.
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33. In the case of Vijay Dhanuka and Others vs. Najima Mamtaj and Others 7 after adverting to the statement of objects and reasons of the Code of Criminal (Amendment) Act, 2005 (25 of 2005), the Supreme Court, enunciated that the use of expression, "shall" and the background and purpose for which the amendment had been brought about rendered it doubtless 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.
34. This position was reiterated by the Supreme Court in the case Deepak Gaba and Others vs. State of Uttar Pradesh and Another 8, wherein it was enunciated that while summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act No. 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation to be made by a police officer or such other officer, for finding out whether or not there is sufficient ground for proceeding against the accused.
35. In view of the aforesaid position in law, it was incumbent upon the learned Magistrate to postpone the issue of process and hold inquiry. The impugned order passed by the learned Magistrate in the backdrop of the fact 7 (2014) 14 Supreme Court Cases 638.
8 (2023) 3 Supreme Court Cases 423.
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apl 732 of 2023.doc that the cause title of the complaint ex facie revealed that the accused Nos. 2 to 7 were residing beyond the local limits of the learned Magistrate's jurisdiction, cannot be sustained.
36. Mr. Kulkarni further submitted that few of the accused have ceased to be the Directors and/or officers of accused No. 1. Attention of the Court was invited to Form DIR -12 in respect of few of the applicants to bolster up the submission that few of them have ceased to be the Directors and few were non- executive/independent Directors.
37. In the light of the view which this Court is persuaded to take on account of the apparent infirmity in the order passed by the learned Magistrate, I do not deem it appropriate to delve deep into this aspect of the matter and determine whether accused Nos. 2 to 8 could have been roped in by invoking the provisions contained in section 16 of the Environment (Protection) Act, 1986.
38. Mr. Kulkarni, learned counsel made an earnest endeavour to impress upon the Court that no prima facie case of breach of consent conditions issued by MPCB for carrying out manufacturing activity much less the discharge of effluents and untreated water into the Amba river, has been made out. Reliance was placed on the reports submitted by Executive Magistrate, Sudhagadh, the order passed by the SDO, Roha in Dispute Application No. 2 of 2018 dated 8 th SSP 23/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc July, 2018, renewal of the consent, periodically; the last being upto 28 th February, 2026 and the report submitted by MPCB dated 1 st February, 2024, that there was no such discharge. Mr. Kulkarni, thus submitted that proceedings deserves to be quashed as it is a flagrant abuse of the process of the Court.
39. I have given anxious consideration to the aforesaid submission. I am unable to persuade myself to accede to the aforesaid submission. Since, the Court is persuaded to remand the complaint back to the Court of learned Magistrate for afresh decision, after following the mandate contained in section 202(1) of the Code, any observations on the merits of the matter may influence the decision of the learned Magistrate.
40. Suffice to note that there is material on record to indicate that MPCB had directed M/s. Sunshield (A1) to close down its manufacturing activity, recording the acts of commission and omission which were purportedly in breach of the conditions subject to which the consent was granted. Subsequently, after M/s. Sunshield (A1) gave undertaking, M/s. Sunshield (A1) was allowed to re-start its manufacturing activity subject to compliance of certain terms and conditions. Whether the aforesaid events which unfolded consequen to inspection by MPCB, make out a prima facie case for the offence punishable under section 15 of the Environment (Protection) Act, 1986 is a matter to be determined by the SSP 24/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc learned Magistrate.
41. The conspectus of the aforesaid consideration is that the applications deserve to be partly allowed. The impugned order passed by the learned Additional Sessions Judge as well as the order passed by the learned Magistrate issuing process against the applicants for the offence punishable under sections 15 and 16 of the Environment (Protection) Act, 1986 deserve to be quashed and set aside. The complaint is required to be remitted back to the Court of learned Magistrate to pass a afresh order keeping in view the provisions contained in section 202(1) of the Code.
Hence, the following order.
ORDER 1] The applications stand partly allowed.
2] The impugned order dated 27 th January, 2023 passed by the learned Additional Sessions Judge, Mangaon in Revision Application No. 18 of 2022 and the order dated 21st July, 2022 passed by the learned Judicial Magistrate, Pali in RCS No. 2 of 2020 (as modified by the order dated 15 th September, 2023) stand quashed and set aside.
3] The learned Magistrate shall pass a fresh order in Regular Criminal Case No. SSP 25/26 ::: Uploaded on - 19/07/2024 ::: Downloaded on - 19/07/2024 12:06:36 ::: apl 732 of 2023.doc 2 of 2020 keeping in view the provisions contained in section 202(1) of the Code of Criminal Procedure, 1978.
4] By way of abundant caution, it is clarified that the observations hereinabove are confined to evaluate the legality and propriety of the impugned orders and this Court may not be understood to have expressed any opinion on the merits of the matter and the learned Magistrate shall not be influenced by any of the observations made hereinabove while determining the question as to whether process for commission of the offence under section 15 of the Environment (Protection) Act, 1986 is required to be issued.
Applications disposed.
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