Bombay High Court
Dhiraj Ramesh Parab vs The State Of Maharashtra And Anr on 19 September, 2019
Bench: Ranjit More, N. J. Jamadar
902-WP3854-19.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3854 OF 2019
Dhiraj Ramesh Parab ...Petitioner
Versus
The State of Maharashtra & anr. ...Respondents
Mr. Abad Ponda, a/w Mr. Mohammed Z. Quazi, i/b Vinita Dandekar, for the Petitioner.
Mrs. A. S. Pai, APP for the State/Respondent.
CORAM: RANJIT MORE & N. J. JAMADAR, JJ RESERVED ON: 13th SEPTEMBER, 2019 PRONOUNCED ON: 19th SEPTEMBER, 2019 PC:-
1. The petitioner, who claims to be a Journalist and public spirited citizen of Balaji Nagar, Bhayander (W) has instituted this petition seeking directions against the respondent - State to register First Information Report ("FIR") on the basis of the reports lodged by the petitioner on 7th June, 2018, 16th July, 2018 and 18th July, 2018, with various authorities including the jurisdictional police alleging grave offences punishable under the Environment Protection Act, 1986 ('the Act, 1986'), Indian Penal Code and Prevention of Corruption Act, 1988 and further direction for investigation by an independent agency like Crime Branch or Central Bureau of Investigation.1/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 :::
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2. The substance of the allegations of the petitioner, in the above reports, is that the land situated at Navghar bearing Survey No.266/1 to 6; 265/2, 4; 267/2, 3 (Old Survey No.67/1 to 6; 81/2, 4; 52/2, 3) is part of CRZ-III. The said land also falls within 'no development zone'. There were mangroves on the said land. A part of the said land was also a wetland. This being the situation of the said land, the alleged offenders, including an infuential politician and his relatives, have changed the user of the said land and carried out huge construction and erected a hotel known as 'Seven Eleven Hotel', in fagrant violation of the provisions of CRZ Regulations, Environment Protection Act and Rules therein, the Development Control Rules and various orders passed by this Court as well as the Apex Court for protection of the environment, especially the conservation of the mangroves and the wetland. It is alleged that mangroves have been cut with impunity. The wetland has been flled. Permanent structures have been erected on ecologically fragile land. Though constructions have been carried out under the pretext of the permissions, granted by the local planning authority, yet, it is alleged that the offcers of the concerned planning authority as well as the offcers/offcials of the State Government are hand in glove with the said persons, and 2/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC have unlawfully issued the permissions. Thus, the persons who have carried out the aforesaid illegal activities as well as the offcers/offcials, who have unlawfully facilitated the commission of those activities, have committed the offences punishable under Environment Protection Act, 1986, Indian Penal Code and Prevention of Corruption Act. The jurisdictional police, in the backdrop of grave allegations, which disclose commission of the cognizable offences, are bound to register the FIR and conduct investigation. However, the concerned police have not registered the FIR. Hence this petition.
3. Evidently, the allegations, prima facie, indicate that development activities on a large scale, have been carried out over the aforesaid land, despite there being the assertions that those lands form part of CRZ-III and fall within 'no development zone'. It further appears that mangroves have been allegedly destructed and wetland damaged. In the backdrop of the material on record, especially the inspection report dated 8th February, 2019, carried out by the Regional Mangrove Co-ordination Committee, wherein it was noted that prosecution was required to be initiated by the concerned departments for destruction of the mangroves and that there was land flling at site resulting in disruption of fow of water 3/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC entailing drying up of the mangroves, we had called upon the State to fle an Affdavit indicating as to what action has been taken in respect of the allegations in the reports lodged by the petitioner.
4. In pursuance thereof Mr. Shekhar Dombe, Senior Police Inspector, Meera Road Police Station has fled an Affdavit dated 29th August, 2019. In the said Affdavit, it is affrmed that pursuant to the complaint lodged by the concerned offcers of the Government, during the period ranging from February, 2010 to May, 2018, in all fve complaints have been registered with reference to the subject land at Navghar and few of the complaints are awaiting trial before the concerned Courts. In four, out of those fve complaints, Mr. Vinod Lalchand Mehta is the common accused. As regards the reports lodged by the Petitioner herein, the Senior PI has affrmed as under :
"8. I say that the petitioner had forwarded 3 e-mail I/d dated 07.6.2018, 16.6.2018 and 18.7.2018. The said e-mail i/ d has been addressed to various departments such as Mangrove Cell, Environmental Department, Finance Department, Konkan Division, Mira Bhyander Municipality, Collector, Thane etc. As far as the grievance of the petitioner of the cognizance to be taken by the Respondents the same have been complied with in view of what has been stated in the above paragraphs of this affdavit. It is further stated that the applications of the petitioner has been forwarded to Mira Bhayander Municipal Department and Collector, Thane for taking further appropriate steps in accordance with law. I crave leave to refer to and rely upon the record as and when required."4/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 :::
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5. From the perusal of aforesaid assertions, it becomes evident that the police have not registered the FIR in respect of the reports in question. An omnibus statement is made that as regards the grievance of the petitioner, cognizance thereof has been taken by the respondents, in view of the fve complaints referred to above. It is further submitted that the grievance of the petitioner has been forwarded to the concerned Municipal Corporation and Collector, Thane, for taking appropriate steps.
6. It is pertinent to note that the Senior Police Inspector does not affrm that the reports lodged by the petitioner do not disclose a cognizable offence. On the contrary, an effort is made to wriggle out of the situation by asserting that the earlier complaints deal with the said grievance. We have perused the reports lodged by the petitioners, wherein allegations of the commission of grave offences are made not only against private persons but the offcers/offcials of the local planning authority and the State Government. The situation is further exasperated by the fact that there is a report of the Regional Mangrove Co-ordination Committee dated 8th February, 2019, which records in clear and unequivocal terms that for destruction of the mangroves 5/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC prosecution is required to be initiated, and the said task is entrusted to the concerned department and the jurisdictional police.
7. In the aforesaid setting of the matter, we have heard Mr. Ponda, the learned Counsel for the petitioner and Mrs. Pai, the learned APP for the State/Respondent.
8. Mr. Ponda, the learned Counsel for the petitioner strenuously urged that the reluctance of the jurisdictional police to register the FIR, despite the commission of grave cognizable offences for the aggrandizement of the few at the cost of environment, is rather inexplicable. It was further submitted that inaction of the police machinery to set the criminal law in motion in the face of the minutes and recommendations of Regional Mangrove Co-ordination Committee is a matter of grave concern and points to the pressure being brought to bear upon the law enforcement agencies. The learned Counsel would urge that the blatant conversion of an ecologically sensitive and fragile land into an expansive and palatial structure would not have been possible without the connivance and active participation of the offcers/offcials of the local body and the Government. The matter thus warrant a thorough investigation to unearth 6/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC complicity of the private persons as well as the public servants.
9. In opposition to this, Mrs. Pai, the learned APP stoutly submitted that the police have taken requisite action which was within their province. Since the permissions for development on the land in question have been granted by the concerned planning authority and the departments of the Government, the investigating agency has made reference to the concerned authorities and also awaits action from the authorities who are empowered under the Environment Protection Act, 1986 to initiate the prosecution. The later part of the submission was rested on the premise that in view of the provisions contained in Section 19 of the Environment Protection Act, the police are not empowered to lodge the prosecution, and this Court has quashed the charge-sheets lodged by the police for the offences under the Act, 1986 in breach of the interdict contained in Section 19. Thus, according to the learned APP, the police are not competent to even register an FIR for the offence punishable under the Act, 1986.
10. Mr. Ponda, joined the issue by putting-forth a submission that the bar under Section 19 is to the act of 7/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC taking cognizance by the Court. The bar does not operate against the police, for registering the FIR. This Court, in the case of Bombay Enviornmental Action Group and another vs. The State of Maharashtra & ors;1 has in terms observed that there is no prohibition for registering the FIR by police for the offence punishable under Section 15 of the Act, 1986. Thus, according to Mr. Ponda, the stand of the prosecution that the police cannot register an FIR is plainly misconceived.
11. A controversy is thus sought to be raised as to whether the police can register an FIR and conduct investigation on the basis of a report disclosing commission of a cognizable offence punishable under the Act, 1986. Section 19 of the Act, 1986 reads as under:
"Section 19: Cognizance of offences: No Court shall take cognizance of any offence under this Act except on a complaint made by-
(a) the Central Government or any authority or offcer authorised in this behalf by that Government; or
(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or offcer authorised as aforesaid."
12. A bare perusal of the aforesaid provision, makes it evident that the Court cannot take cognizance of the offences punishable under the Act, 1986 except on a complaint made 1 PIL No.87/2006. 8/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC by the authorised offcer or any person who has given a prior notice of not less than 60 days. A plain reading and construction of the aforesaid provision, does not lead to any obfuscation as to whether the police can register an FIR alleging the commission of the offences punishable under the Act, 1986. The bar against taking cognizance, except on the complaint of an authorised offcer or a private person who has given a prior notice, and the power of the police to investigate into a cognizable offence operate in distinct sphere.
13. A Division Bench of this Court in the case of Bombay Environmental Action Group (supra) elaborately considered the aspect of 'procedure regarding setting criminal law in motion' for the offences punishable under the Act, 1986. After reference to the pronouncements of the Supreme Court as well as the Delhi High Court and Gujrat High Court, the Division Bench enunciated the legal position in the following words:
"10. We must note here that the offence under Sub-section (1) of Section 15 attracts imprisonment for a term which may extend to 5 years. Therefore, as per Part II of the First Schedule to the said Code, the offence will be cognizable and therefore, Police can register the same under Sub-Section (1) of Section 154 of the said Code. Perusal of the decision of the Apex court in the aforesaid case shows that the Apex Court has not disturbed the view taken by the Delhi High Court and Gujrat High Court which we have quoted above.
Therefore, if FIR is registered by the Police for the offences punishable under Section 15 of the said Act of 1986, the registration of offence and investigation carried out by the 9/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC Police is not per se vitiated. A complaint can be made/fled by authorised offcer under clause (a) of Section 19 before the concerned Court. While fling complaint, the authorised offcer can always rely upon the material collected by the Police during the investigation. The complaint can include the material collected by the Police during the investigation carried out on the basis of the FIR."
(emphasis supplied) This Court has held in unequivocal terms that if the FIR is registered by the police for the offence punishable under Section 15 of the Act, 1986, the registration of offence and investigation carried out by the police is not per se vitiated.
14. Whereas in the case of Navi Mumbai Environment Preservation Society and anr. vs. Ministry of Environment 2 also, the Division Bench of this Court has adverted to this aspect of the matter and observed as under:
"(III) We clarify that registration of offences by the Police under Sub-section (1) of Section 15 of the said Act of 1986 and the investigation carried out thereon is not per se illegal.
The offcers authorised under clause (a) of Section 19 can always fle complaints in accordance with the said Code by relying upon the material collected during the investigation and material forming part of the charge-sheet prepared by the police."
(emphasis supplied)
15. Mrs. Pai, the learned APP, however, endeavoured to canvass a submission that the aforesaid judgments were considered by another Division Bench of this Court in the case of Mr. Vinod P. Mahajan and others vs. State of 2 PIL No.218 of 2013. 10/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC Maharashtra and another3 and the Court had quashed and set aside the charge-sheet fled by police, in the said case, after conducting an investigation, without there being a complaint lodged by an authorised offcer or a person with prior notice.
16. We have perused the judgment in the case of Vinod Mahajan. We do not fnd any cleavage of opinion recorded in the judgments in the cases of Navi Mumbai Environment Preservation Society (supra) and Bombay Environmental Action Group (supra), on the one hand, and the judgment in the case of Vinod Mahajan (supra), on the other hand. In fact, in paragraph 22 of the judgment in the case of Vinod Mahajan (supra), the Division Bench had in terms observed that in the earlier judgment in the case of Navi Mumbai Environment Preservation Society (supra) the Division Bench had held that the investigation carried out thereon is not per se illegal and that the offcer under clause (a) of Section 19 can always fle complaint by relying upon the material collected during the investigation and material forming part of the charge-sheet prepared by the police. What follows thereafter is of material signifcance and seals the issue. The Court observed that "it is therefore not necessary to quash 3 Criminal Application No.697 of 2017.
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902-WP3854-19.DOC and set aside the FIR, however, we are required to modulate the relief which is to be granted in the above application accordingly". Taking the said view of the matter, in the case of Vinod Mahajan (supra) though the Division Bench had set aside the charge-sheet yet it was clarifed that the investigation carried out by the police pursuant to the FIR as well as the material collected by the police is kept intact and it would be open for the offcers authorised under Clause (a) of Section 19 to fle a complaint by following the directions as contained in Clause (III) of paragraph 15 of the order dated 22nd December, 2016 passed in PIL No.218 of 2013 [ Navi Mumbai Environment Preservation Society (supra)].
17. In the backdrop of the aforesaid observations, we are afraid to agree with the submission of the learned APP that the police are debarred from registering FIR alleging the commission of cognizable offences punishable under Section 15 of the Act, 1986.
18. As observed earlier, it is not the case of the investigating agency that the reports lodged by the petitioner do not disclose any cognizable offence.
19. It would be suffce to note that in view of the Constitution Bench judgment of the Supreme Court in the 12/14 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 03:56:15 ::: 902-WP3854-19.DOC case of Lalita Kumari vs. Government of Uttar Pradesh and others4, if the report discloses commission of a cognizable offence, there is no other go but to register the FIR. Paragraph 119 of the aforesaid judgment, encapsulates the legal position and puts the same in terse words, which do not brook either inaction or discretion. Paragraph 119 reads as under:
"119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verifcation or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verifed during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for fling a false FIR."
(emphasis supplied)
20. The conspectus of the aforesaid consideration is that the jurisdictional police are duty-bound to register the FIR and conduct investigation in accordance with law. We are, therefore, persuaded to direct the Senior Police Inspector, Meera Road Police Station, District Thane (Rural), to register 4 (2014) 2 SCC 1.
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902-WP3854-19.DOC the FIR, on the basis of the reports lodged by the frst informant on 7th June, 2018, 16th July, 2018 and 18th July, 2018 and carry out investigation in accordance with law.
21. We hasten to clarify that the observations here-in-above have been made only for the purpose of determining the question as to whether, in the facts of the instant case, it is obligatory for the investigating agency to register FIR. We may not be understood to have expressed any opinion on the merits of the matter.
22. Stand over after two months.
[N. J. JAMADAR, J.] [RANJIT MORE, J.] Mrs. Pai, the learned APP, at this stage, on instructions, from Mr. Dombe, the Sr. P. I., Meera Road Police Station, who is present before the Court, seeks stay to the order.
Since we have given elaborate reasons in support of the order and the investigation can not be stayed, we refuse the prayer of stay.
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