Madhya Pradesh High Court
Abhairaj Bhandari vs Madhya Pradesh Pollution Control Board on 2 February, 2024
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IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
ON THE 2nd OF FEBRUARY, 2024
MISC. CRIMINAL CASE NO. 32663 OF 2022
BETWEEN:-
ABHAIRAJ BHANDARI S/O LATE MAHENDRA SINGH,
AGED ABOUT 55 YEARS, OCCUPATION: SENIOR VICE
PRESIDENT (PRESENTLY WORKING AS CHIEF
EXECUTIVE OFFICER), BHARAT OMAN REFINERIES
LIMITED, REGD. OFFICE: ADMINISTRATIVE BUILDING,
REFINERY COMPLEX, POST- BORL RESIDENTIAL
COMPLEX, BINA DISTRICT SAGAR (M.P.)
....APPLICANT
(BY SHRI ANIL KHARE- SR. ADVOCATE WITH SHRI
RASHID S. SIDDIQUI- ADVOCATE)
AND
MADHYA PRADESH POLLUTION CONTROL BOARD
THROUGH SHRI SATISH CHOUKSEY, SUB-ENGINEER
AREA OFFICE, DEEN DAYAL NAGAR, HOUSING BOARD
COLONY, MAKRONIA, SAGAR DISTRICT SAGAR (M.P.)
....RESPONDENT
(BY SHRI VIKRAM JOHRI- ADVOCATE)
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This petition came up for hearing on 11.01.2024 and the order
was kept reserved.
ORDER
Vide this common order MCRC No.32663/2022, MCRC No.32619/202, MCRC No.32665/2022 and MCRC No.32672/2022 are being disposed of. Since common questions of law and facts are invoked, therefore the facts are being culled out from MCRC No.32663/2022.
2. Petitioner Abhairaj Bhandari in MCRC No.32663/2022 is Senior Vice President in M/s Bharat Oman Refineries Limited and presently working as Chief Executive Officer. Petitioner Sunderajan S. Srinivasagopalan in MCRC No.32619/2022 is working as Managing Director in M/s Bharat Oman Refineries Limited. Petitioner Samarendu Chatterjee in MCRC No.32665/2022 is Joint Senior Vice President in M/s Bharat Oman Refineries Limited. Petitioner in MCRC No.32672/2022 is the company itself i.e. M/s Bharat Oman Refineries Limited through the authorized signatory. In all the aforesaid petitions, the petitioners therein have preferred 3 petition under Section 482 of Cr.P.C. for quashing of Criminal Complaint Case (UNCR) No.80/2018 pending before the Judicial Magistrate First Class, Bina, District Sagar, which was registered under Section 43 read with Section 44 of the Water (Prevention and Control of Pollution) Act, 1974 and the consequent orders passed therein including the order dated 15.10.2018 passed by the Magistrate, taking cognizance of the offences and issuing process against the petitioner. The petitioner has also preferred a Criminal Revision No.03/2019, which was dismissed by the Second Additional Sessions Judge, Bina, District Sagar vide order dated 26.2.2022. That is how the petitioner has assailed the complaint along with order dated 15.10.2018 passed by the Judicial Magistrate First Class, Bina, District Sagar, and the order dated 26.2.2022 passed by the Second Additional Sessions Judge, Bina, District Sagar.
3. Bharat Oman Refineries Limited (for brevity "BORL") is wholly owned subsidiary of Bharat Petroleum Corporation Limited (Government of India Undertaking). BORL is the only 4 refinery in Central India having existing capacity of 7.8 MMTPA and is providing petroleum products to Northern and Central India. Dehors the other components, it is relevant to state that during the inspection, MPPCB Team collected three water samples for analysis. Sample No.1 was ETP outlet being used for horticulture, second sample was from drain within ETP and third sample was treated waste water from outlet of premises before mixing into natural Nala leading to river Betwa.
4. A show cause notice was issued to the Company, alleging that the Industry and Occupiers of the Industry are guilty under Sections 24 and 25 of the Water (Prevention and Control of Pollution) Act, 1974 (for short "Act, 1974") for violation of conditions of consent. The discharge of industry was found meeting in storm water drain, which was ultimately polluting Betwa river. Pond constructed for storage of fly ash was not provided with water recycling facilities. It was proposed in the said notice that the industry should stop the production, power supply to the industry 5 should be suspended, and water supply for industry should be stopped by MPAKVN.
5. After due correspondence and reply from BORL, the respondent/M.P. Pollution Control Board filed a complaint under Sections 43 and 44 of the Act, 1974 on 20.7.2018 in the Court of the Judicial Magistrate First Class, Bina, District Sagar for prosecution of the Company, its Managing Director, Senior Vice President and Joint Senior Vice President. The Judicial Magistrate First Class, Bina, District Sagar vide order dated 18.11.2018 took cognizance of the complaint and issued summons to the petitioner and others. That is how inherent powers of this Court under Section 482 of Cr.P.C. are being sought for quashing of the criminal complaint, summoning orders and order passed by the Revisional Court.
6. A bare perusal of the complaint filed under Sections 43 and 44 of the Act, 1974 would show that in para No.2 of the complaint, the following recital has been made:-
"That the accused No.1 M/s Bharat Oman Refineries Limited, Bina, District Sagar is producing petroleum product. Accused No.2 (Sunderajan S. Srinivasagopalan) is Managing 6 Director of M/s Bharat Oman Refineries Limited, the accused No.3 (Abhairaj Bhandari) is Senior Vice President of M/s Bharat Oman Refineries Limited, and the accused No.4 (Samarendu Chhatterjee) is the Joint Senior Vide President- cum-Environmental Security Officer."
Except the aforesaid nomenclature, there is no averment made in the complaint as to how the aforesaid persons are incharge of, and were responsible to the company for the conduct of, the business of the company in day to day affairs. The offences by the company are explained in Section 47 of the Act, 1974, which reads as under:-
"47. 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 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-7
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.
Explanation.- For the purposes 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."
Section 47(1) of the Act, 1974 deals with an offence committed by a company. Every person who at the time the offence was committed was incharge 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. As per the proviso attached to Section 47(1) of the Act, 1974, nothing contained in this 8 aforesaid sub-section shall render any such person liable to any punishment 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. Section 47(1) of the Act, 1974 carves out an exception by way of proviso that the person mentioned in Section 47(1) of the Act, 1974 shall not be liable to be prosecuted against, if he is able to establish that the offence was committed without his knowledge or that the same was committed despite the said person exercising due diligence to prevent the same. The person should be incharge 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 for such contravention of the provisions of the Act, 1974.
7. In view of the aforesaid requirement, the complainant must plead that the accused is incharge and responsible to the company for its conduct of business in day-to-day affairs of the company. In absence of such pleadings/averments in the complaint, 9 the requirement of the aforesaid provisions in terms of Section 47(1) of the Act, 1974 cannot be enlarged to presume that the accused is incharge and responsible to the company for its conduct of business in day-to-day affairs of the company. As per the proviso, an exception has been carved out that if the person incharge of and responsible to the company establishes that the offence was committed without his knowledge and the same was committed despite due diligence observed by him, then in such eventuality he cannot be prosecuted. As per the requirement in terms of Section 47(2) of the Act, 1974 nothing contained in sub-Section (1) wherein 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 any other officer of the company, such director, manager, secretary or any other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. The said provision i.e. Section 47(2) of the Act, 1974 qualifies sub-section (1) by applying 10 a non obstante clause, providing that the penal provision nonetheless shall be attracted if consent or connivance or neglect is attributed to the director, manager, secretary or any other officer of the company. The allegations made in the complaint are totally silent with regard to such an allegation of consent, connivance and neglect attributable to any director, manager, secretary or any other officer of the company.
8. Learned counsel for the petitioner vehemently submitted with reference to the aforesaid requirement that the ingredients of offence in terms of Section 47(1) and Section 47(2) of the Act, 1974 are missing all together, and in the absence of such requirements, the offences in question are not attracted. Learned counsel for the petitioner with reference to Manu Anand Managing Director Vs. M.P. Pollution Control Board, ILR [2016] M.P. 3180 submitted that the liability upon any person apart from the person mentioned in Section 47(1) of the Act, 1974 can be fastened only when the complaint contains specific and express allegations of consent, connivance or neglect on the part of director, 11 manager, secretary or any other officer of the company. Bare perusal of the complaint in question is found to be totally bereft of any such allegation against the petitioner and other office bearers. The complaint does not contain any such allegation that the petitioner being Senior Vide President of the BORL was incharge of day-to- day business and affairs of the company in any manner.
9. Learned counsel for the petitioner further relied upon Girdhari Lal Gupta Vs. D.H. Mehta and another, (1971) 3 SCC 189 and contended that a person 'incharge of a business' means that the person should be in overall control of the day-to-day business of the company. In the absence of such allegation in the complaint and in the absence of allegation of consent, connivance or neglect, no offence can be presumed against the petitioner and similarly situated office bearers. The provisions are analogous to the requirement of law in terms of Section 141 of the Negotiable Instruments Act, 1881. There must be specific averments against the Managing Director/Senior Vice President and Joint Senior Vice President etc. as to how and in what manner they were responsible for the conduct 12 of the business of the company. There is no such allegation in the complaint as to how the petitioner was in any way responsible for day-to-day affairs of the company or was incharge of the business in any manner. Summoning of an accused by the Court in a criminal case is a serious issue and the law cannot be set into motion as a matter of course as held by the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, (1998) 5 SCC 749. The order of the Magistrate summoning the accused must reflect due application of mind. The Magistrate should examine the nature of allegations made in the complaint and material available on record on prima facie note. The Magistrate cannot pass the order in a steriotyped manner. The Magistrate has to scrutinize the material on record carefully in order to find out whether the offence is prima facie committed or not. Similar view is expressed by the Hon'ble Apex Court in the case of Maksood Sayed Vs. State of Gujarat, (2008) 5 SCC 668. Learned counsel for the petitioner also relied upon State of NCT of Delhi Vs. Rajiv Khurana, AIR 2010 SC 2986, and SMS 13 Pharmaceutical Ltd. Vs. Neeta Bhalla, (2005) 8 SCC 89. Reference has also been made to Ravindranatha Bajpe Vs. Manglore Special Economic Zone Ltd. and others, 2021 SCC Online SC 806 and contended that merely because the accused are office bearers of the company, they cannot be automatically held vicarious liable unless there are specific allegations and averments made in the complaint showing their individual role of being incharge and responsible to company for its conduct of business on day today basis.
10. Per contra, learned counsel for the respondent by placing reliance upon Shivraj Singh Vs. State of UP, (2013) 11 SCC 476 submitted that at the stage of framing of charge, the Court is not required to examine the allegations meticulously, and even the charge can be framed on suspicion. Probative value of the material is not to be seen. At this stage even strong suspicion founded on material, which leads the Court to form a presumptive opinion as to the existence of the factual ingredients, constituting the offence would justify the framing of charge against the accused in respect of 14 commission of the offence. Learned counsel for the respondent also referred to Tarun Tejpal Vs. State of Goa, (2020) 17 SCC 556 and contended that the scope of proceeding at such stage is not to be interfered. The High Court would not exercise its inherent jurisdiction to quash the criminal proceedings unless the allegations contained therein disclose no cognizable offence.
11. Having considered the arguments advanced by the learned counsel for the parties in the light of the material available on record, this Court finds that bare perusal of the complaint in question, does not show any such allegation as to how the petitioner(s) is/are responsible in terms of Section 47(1) of the Act, 1974. There is no allegation in the complaint that the petitioner(s) was/were incharge of, and were responsible to the company for conduct of the business in any manner. In the absence of such allegation, there cannot be any deeming fiction attached to the guilty of the offence and there cannot be any application of exception as per proviso 2 of the aforesaid Section 47 (1) of the Act, 1974. There cannot be any commission of offence without the knowledge or 15 commission of such offence even by exercising due diligence by the petitioner, but there is no such allegation in the complaint itself. Similarly, Section 47(2) of the Act, 1974 i.e. commission of offence with consent or connivance, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company is also not attracted, as there is no such allegation/ averment made in the entire complaint. The impugned complaint itself is totally bereft of any such allegation, and therefore the offences in question are not attracted in any manner.
12. In view of the Section 60 of the Act, 1974, the provisions of the Act have overriding effect over the Code of Criminal Procedure, and therefore the provisions in terms of Section 47(i) and (ii) are to be meticulously satisfied before taking cognizance by the Court for the offences in question. The complaint in question lacks material averments in order to attack vicarious liability on the part of the petitioner. Except para 2 of the complaint, there is no averment in the entire complaint, satisfying the ingredients of Section 47(i) and (ii) of the Act, 1974 in any manner. 16 Even in para No.2 of the complaint, no overt-act has been attributed to the petitioner(s) except to show their posts in the company. Even for the sake of vicarious liability of the petitioner in the context of his being incharge and responsible person for day-to-day conduct of business of the company, specific averments are required to be made in the complaint itself that in what manner the petitioner is responsible for a particular affair of the company. Specific averments are required to be made with specific details of business and sharing of responsibility by the petitioner. Giving the designation of the petitioner alone in the complaint does not espouse the cause of the complainant against the petitioner in any manner.
13. In view of the aforesaid inherent lacuna in the complaint that goes to the very root of the case, making the origin to be baseless and thereafter maxim "sublato fundamento cadit opus"
applies thereby making entire subsequent proceedings to fall through being a nullity. In view of the law laid down by the Hon'ble Apex Court in the case of R. Banerjee and others Vs. H.D. Dubey and others, (1992) 2 SCC 552, it can be appreciated that present 17 provision in terms of Section 47(i) and (ii) of the Act, 1974 are analogous to Section 17(1), (2) and (4) of the Prevention of Food Adulteration Act, 1954 wherein sub-Section 4 begins with a non obstante clause, which provides that 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 any other officer of the company (not being a person) nominated under sub-Section (2), such director, manager, secretary shall also be deemed to be guilty of that and shall be liable to be proceeded against and punished accordingly. The aforesaid provision was interpreted and it was held that in the absence of such allegation of consent, connivance and neglect, no such officer can be held guilty of the offence. Reference can also be made to Nalin Thakor and others Vs. State of Gujarat and others, (2003) 12 SCC 461 wherein sub-Section (ii) of Section 47 of the Act, 1974 has been interpreted and it has been held that if there is no allegation as regards the requirement of Section (ii) of Section 47 of the Act, 18 1974, i.e. commission of offence with consent or connivance or is attributable to any neglect on the part of, any director, manager, secretary or any other officer of the company, then their summoning by the Judicial Magistrate First Class would be erroneous. The action was ultimately quashed by the Hon'ble Apex Court.
14. For the reasons recorded hereinabove, this Court finds that the prosecution has miserably failed to look into the complaint as regards the material requirement of law in terms of Section 47(i) and (ii) of the Act, 1974. In the absence of such a material disclosure in the complaint with reference to specific role and responsibility of the accused in day-to-day affair of the company, no offence can be alleged against them regarding vicarious liability. In such a situation, summoning of accused/petitioner(s) in a routine manner would result in failure of justice. The Judicial Magistrate First Class has summoned the petitioner(s) in a casual manner, without recording prima facie satisfaction as to how the petitioner has committed any such offence in the absence of material disclosure in the complaint itself.
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15. In view of the aforesaid, I deem it appropriate to accept this petition filed under Section 482 of Cr.P.C. thereby quashing the complaint (UNCR) No.80/2018 pending in the Court of Judicial Magistrate First Class, Bina, District Sagar, order of summoning dated 15.10.2018 passed by the Judicial Magistrate First Class, Bina, District Sagar, and the order dated 26.2.2022 passed by the Second Additional Sessions Judge, Bina, District Sagar in CRR No.03/2019 along with all subsequent proceedings, if any undertaken in pursuance thereof. No costs.
(Raj Mohan Singh) Judge 02/02/2024 MANZOOR AHMED 2024.02.05 15:16:15 +05'30' Ansari