1 Reserved Criminal Misc. Case No.1524 of 2007 1. Sushil Ansal S/o Late Chiranji Lal R/o 26, Ferozehsah Road, New Delhi 2. Gopal Ansal S/o Late Lala Chiranji Lal R/o 6- Aurangzeb Road, New Delhi. 3. Deepak Ansal S/o Late Lala Chiranji Lal R/o 6-Aurangzeb Road, New Delhi ........Petitioners Versus 1. State of U.P 2. U.P.Pollution Control Board Pragati Kendra 2nd Floor, Kapoorthala Complex, Aliganj, Lucknow through its Law Officer ....... Opposite Parties. ------ Hon'ble D.V.Sharma, J.
The instant petition under section 482 Cr.P.C. has been preferred challenging the proceedings in Criminal Case No.13 & 14 of 1993 (U.P. Pollution Control Board Vs. Ansal Papers and others) pending in the court of Special Judicial Magistrate Pollution, Lucknow along with the orders dated 23.04.2005, passed by the Special Judicial Magistrate, Pollution and order dated 15.5.2007 passed by the Additional Sessions Judge, Lucknow. It has further been prayed that the operation of the order dated 1.4.2005 through which non-bailable warrants and proceedings under Section 82 Cr.P.C. which have been directed to be initiated against the petitioners be stayed.
Background facts in nutshell are as follows;
The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter to be referred to as the Act) came into existence on 23.03.1974 to ensure that the domestic and industrial effluents are not 2 allowed to be discharged into the water courses without adequate treatment.
The State Board for Control of Pollution was constituted on 3.2.1975 by the Government of U.P. under the Act and it has been named as U.P. Pollution Control Board (hereinafter to be referred to as the Board). M/s Ansal Papers, Sikandrabad, Bulandshahar was a unit of Ansal Properties & Infrastructure Limited within the meaning of the Section 47 of the Act (hereinafter referred to as the Company) which was running a paper mill in district Bulandshahar.
On 23.11.1983 a complaint under Section 44 of the Act was filed by the Board against the Company, its Managing Directors, Occupiers including 10 persons alleging therein that M/s Ansal Papers has been discharging knowingly its trade effluents into the Karva river through drain without obtaining the consent of the Board under Section 25 r/w Section 26 of the Act. The aforesaid complaint was filed in the year 1983 and then later on it was transferred to Lucknow before the Special Judicial Magistrate (Pollution), Lucknow in the year 1993 where it was numbered as Case No.13 of 1993.
In the year 1984 U.P. Pollution Control Board submitted another application under Section 33(1) of the Act before the Additional Munsif Magistrate, Bulandshahar against Ansal Paper Mills for contravening the provisions of Section 24 of the Act on which on 24.3.1984, the Additional Munsif Magistrate, Bulandshahar restrained M/s. Ansal Papers to dispose of the pollutants in the river Karva and it was further directed that the opposite parties i.e. Ansal Papers may dispose of the polluted effluents as per standard measures directed by the Board. On 02.01.1985 the officers of U. P. Pollution Control Board again inspected the premises of the paper mills and found that the paper mill was still discharging its trade effluent in the river Karva, which was noxious in nature. Further on 22.05.1985 again the team of board inspected the premises and found that the paper mill was still discharging its trade effluents in the river Karva, disobeying the orders of the Court dated 24.03.1984 passed by the Additional Munsif 3 Magistrate-III, Bulandshahar. Accordingly, another complaint under Section 41(2) of the Water (Prevention and Control of Pollution) Act, 1974 was filed before the Chief Judicial Magistrate, Bulandshahar against Ansal Paper Mill, its Managing Director and other Directors etc. for continuously violating the order dated 24.03.1984 passed by the Learned Additional Munsif Magistrate, Bulandshahar under Section 33(2) of the Act and for contravening the provisions of Section 24 of the Act. The aforesaid complaint which was later on registered as case no. 2207/89 was also transferred to Lucknow before the Special Judicial Magistrate (Pollution) Lucknow in the year 1993, where it was numbered as case no. 14/1993.
Ansal Paper Factory was closed in the year 1987 and ceased to carry out the production and any other business activity with effect from 02.06.1987. The applicants challenged the aforesaid complaints filed in the court of C. J.M., Bulandshahar by means of a Criminal Miscellaneous Application No. 10260/1986 before the High Court and the same was decided on 10.04.1987.
On 28.01.1988 in pursuance of order dated 10.04.1987, passed by this Court, the applicants filed an application before the Court of C.J.M., Bulandshahar informing that one Mr. A. B. Sen was appointed as occupier of Ansal Papers by a resolution passed by the Board of Directors dated 30.09.1985 with effect from 12.08.1985. In the resolution, it was clarified that Mr. A. B. Sen had been given the charge due to the fact that the prior occupier Mr. R. C. Rastogi has resigned from the company. It was stated in the application that Mr. A. B. Sen was solely responsible and was in full control of the factory and it was further requested that the accused persons, (the petitioners before this Court) to appear through counsel and they may be exempted from personal appearance. On 14.06.1988, in pursuance and compliance of order dated 10.04.1987 of this Court, the learned C.J.M., Bulandshahar exempted personal appearance of the petitioners and others till further orders. On 27.02.1989, the Court of Special Judicial Magistrate (Pollution) was constituted at Lucknow and the 4 aforesaid pending cases in the Court of C.J.M., Bulandshahar, were transferred and numbered as case nos. 13/93 and 14/93. On 10.05.2004, an application was moved by the petitioners before Special Judicial Magistrate at Lucknow for dismissing the complaint on the ground that the complaints were not filed through the person duly authorized by the Board. The application was dismissed on 21.08.1990; aggrieved by the order dated 21.08.1990, a Criminal Revision was filed before the Court which was registered at Criminal Revision No. 1556 of 1990 in which an interim order dated 04.09.1990 was passed staying the proceedings pending before the Magistrate. The said revision was dismissed on 10.05.2004 and as a consequence of the dismissal of the above revision the learned Special Magistrate issued summons vide order dated 01.10.2004 fixing 27.10.2004 for appearance despite the fact that in compliance of the order dated 10.04.1987 passed by this Court, the learned C.J.M., Bulandshahar on 14.06.1988 exempted personal appearance of the petitioners. On 27.10.2004, learned Magistrate issued non-bailable warrants despite the fact that the summons were not received/served upon the applicants. Thereafter on 09.03.2005, an application under Section 47 of the Act read with Section 245(2) and 305 Cr.P.C. was filed before the concerned Court in pursuance of the order dated 10.04.1987 passed by this Court in Criminal Miscellaneous Case No. 10260 of 1986. Another application for staying/suspension of the execution of non-bailable warrants was also filed. It was also brought to notice that an application dated 28.01.1988 pursuant to the order dated 10.04.1987 was filed before the Magistrate naming Mr. A. B. Sen as a person responsible for day-to-day affairs of the factory and it was also prayed that the applicants be discharged. It was also stated that upon filing of the said application, learned C.J.M, exempted the appearance of the applicants till further orders. It is alleged that the order is still operative. It has not been recalled, as such the applicants prayed for discharge.
On 09.03.2005, the application was heard and objections were 5 invited. Thereafter on 01.04.2005, the counsel for the applicants was ill as a result of which an application for adjournment was moved through his junior. Instead of adjourning the matter or disposing of the aforesaid applications of the applicants, the learned Magistrate vide order dated 01.04.2005 issued non-bailable warrants against the petitioners and decided to proceed against the applicants under the provisions of Section 82 Cr.P.C. An application was moved for staying the execution of non-bailable warrants and the proceedings under section 82 Cr.P.C. but no orders could be passed by the learned Magistrate. On 23.04.2005, the application which was moved before the Magistrate in pursuance of the order dated 10.04.1987 of this Court was dismissed without fixing liability. On 15.05.2007, the revision filed against the above order was also dismissed on technical ground that the application was not signed by the applicants. Thus both the courts failed to comply the order dated 10.04.1987 passed by this Court.
The petitioners have raised following contentions in the petition filed under Section 482 Cr.P.C. The judgment and order of the High Court dated 10.4.1987 which reads as under has not been complied with and the order passed on the application moved by the petitioners is erroneous:-
"Heard the learned counsel for the parties. This application is devoid of any merit. However, it is open to the company to inform the court by filing an application about the names of persons or person who at the time of occurrence was in-charge and was responsible for the company and for the conduct of the company. The Magistrate after considering the said application if filed shall proceed with the case against only those persons who at the time of the offence were in-charge and were responsibl3e to the company for the conduct of the company as mentioned under Section 47 of the water (Prevention and Control of the Pollution) Act 1974.6
The learned Magistrate shall not be influenced by the observation made by the revisional court. With these directions the application is rejected. The applicants who are out of country may appear before the learned Magistrate through counsel."
The learned Magistrate on 23.4.2005 dismissed the application without any justification and the revision in pursuance of the order was also not properly considered and was dismissed without any justification on 15.5.2007. In this regard, it is submitted that the order dated 10.4.1987 passed by this Court referred to above specifically directing the company to inform the trial court by filing an application about the names of persons or person who at the time of occurrence was in-charge and was responsible for the affairs of company and for the conduct of the company. It was also directed that after considering the said application, the trial court shall proceed against the said persons or person, who was in-charge as aforesaid. It is submitted that the order of the High Court was based on the provisions of Sub- section 5 of Section 305 Cr.P.C. where a statement in writing purported to be signed by the Managing Director of the company or by any person having or being one of the persons of the Management of the affairs of the Corporation to the effect that the persons named in the statement has been appointed as the representative of the corporation for the purposes of this section. The court has to presume that such person has been appointed. Section 305 of Cr.P.C. reads as under:-
(1) In this section, "corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860).
(2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint 7 a representative for the purpose the inquiry or trial and such appointment need not be under the seal of the corporation.
(3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined.
(4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply.
(5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed.
(6) If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court.
It is submitted that in the application dated 28.01.1988, 16.07.1990 and 09.03.2005, the petitioners informed that Mr. A. B. Sen was in-charge 8 of Ansal Papers Ltd., Bulandshahar, but the trial court in its order dated 23.04.2005 and the revisional court on 15.05.2007 merely took technical view of the entire case. It is not only erroneous but is also against the directions and mandate of the order dated 10.04.1987 of the Hon'ble High Court. The application was rejected solely on the ground that the same was not signed by the applicants. It is further averred that in view of the provisions of law of Sub-section 5 of Section 305 of Cr.P.C. referred to above coupled with directions of the Hon'ble High Court dated 10.04.1987, the Magistrate was bound to accept the information regarding Sri A. B. Sen who was in-charge and occupier of Ansal Papers Ltd., Bulandshahar. The learned Magistrate has not done so and the revisional court also ignored this lapse in committing initial error resulting in miscarriage of justice. The order dated 01.04.2005 passed by the Special Judicial Magistrate (Pollution) Lucknow issuing non-bailable warrants against the petitioners and initiating the proceedings under Section 82 Cr.P.C. were totally unwarranted and uncalled for since the summons were not served on the applicants and they were not the absconders and were appearing in the Court through their counsel as per order of the High Court and their personal appearance were exempted by Judicial Magistrate on 14.06.1988. The order was not vacated, accordingly the order dated 01.04.2005, passed by the Special Judicial Magistrate (Pollution) Lucknow is ab initio and illegal and on the face of it is violative of the mandatory provisions contained in Section 82 Cr.P.C. The Magistrate has failed to follow the procedure provided under the law by passing the order dated 01.04.2005. The Magistrate has also not paid any heed to the directions and guidelines issued by this Court vide judgment and order dated 10.04.1987 (Annexure-3). Therefore, the Magistrate could proceed in the case only after determining as to who was actual offender. It is urged that the magistrate has not yet determined or decided as to who was the actual offender and thus has not complied with the judgment and order dated 10.04.1987 passed in Criminal Misc. Case No. 10260 of 1986 which is an abuse of process of law. The application dated 28.01.1988 was moved in pursuant to the order dated 9 10.04.1987 before the Magistrate naming Sri A. B. Sen as a person responsible for day-to-day affairs of the company. It is further submitted that Sri A. B. Sen was in-charge and responsible for day-to-day affairs of the company and this fact remained uncontroverted. Thus, the fact admitted to the Board had to be accepted by the Magistrate that Sri A. B. Sen was in-charge and responsible for the day-to-day affairs of the company. But the learned Magistrate left this fact untouched and decided other affairs of the company without any justification. Thus, there is abuse of process of law in this case. It is further submitted that the application was dismissed on technical ground and non-bailable warrants were issued on 01.04.2005 along with initiation of proceedings under section 82 Cr.P.C. without any justification. Accordingly, the order dated 23.04.2005 and 15.05.2007 passed by the learned Magistrate and Additional Sessions Judge are wholly arbitrary and without jurisdiction. It is further submitted that the proceedings of criminal case may be kept in abeyance so far as the applicants are concerned and operation of order dated 01.04.2005 be stayed. On behalf of opposite party no. 2 (Pollution Board), counter affidavit was filed to the effect that in view of section 47 of the Water (Prevention and Control of Pollution) Act, 1974, accused persons being director and occupier were responsible for the affairs of the company and liable for their acts under Section 47 of the Act. Further the judgment and order dated 10.04.1987 of this Court passed in Criminal Misc. Case No. 10260 of 1986 and the application filed in pursuance of the judgment and order passed by the learned Judicial Magistrate dated 14.06.1988 exempting the personal appearance of the petitioners have been admitted by the Board in the counter affidavit.
It has further been urged that order dated 23.04.2005 and 15.05.2007 passed by the Special Judicial Magistrate (Pollution) Lucknow and Additional Sessions Judge, Lucknow have not challenged before this Court and they have become final and accordingly, application under section 482 Cr.P.C. is not maintainable.
In the rejoinder affidavit it is submitted that the sample was not 10 taken in accordance with the provisions of Section 21(2) of the Water (Prevention and Control of Pollution) Act, 1974 and notice was not given. Accordingly, it cannot be said that the company discharged effluent in the river. It has further been urged that the order of inspection had neither sent nor served upon the company. The Magistrate ought to have proceeded against Sri A. B. Sen and ought to have construed that the petitioners have not looking after the affairs of the company. At the time of taking the sample Sri A. B. Sen was the person responsible for day-to-day affairs of the company. Thus, the proceedings conducted by the Magistrate are flagrant breach of law and deliberate violation of order dated 10.04.1987. Accordingly, the orders are not tenable in the eyes of law and liable to be quashed. Thus, the petitioners have approached this Court under Section 482 Cr.P.C. seeking the following reliefs:-
"It is, therefore, most respectfully prayed that the Hon'ble Court may be pleased to quash the proceedings in so far as the applicants are concerned in Criminal Case No. 13 and 14 of 1993, U.P. Pollution Control Board Vs. Ansal papers and others pending before the Special Judicial Magistrate (Pollution) Lucknow.
It is further prayed that the proceedings in Criminal Case No. 13 and 14 of 1993, U.P. Pollution Control Board Vs. Ansal papers and others pending before the Special Judicial Magistrate (Pollution) Lucknow be kept in abeyance in so far as the applicants are concerned and the operation of the order dated 01.04.2005 and execution of non-bailable warrants be stayed during the pendency of the present application otherwise the applicants would suffer irreparable injury.
Any other or further relief as this Hon'ble Court deems fit and proper in the circumstances of the case may also granted."11
I have heard learned counsel for the petitioner, learned A.G.A. and learned counsel for the Board and perused the record.
First of all, it would be expedient to mention that as regards the prayer of the petitioner for quashing the proceedings in so far as the applicants/petitioners are concerned in Criminal Case No. 13 & 14 of 1993 (U.P. Pollution Control Board Vs. Ansal Papers Ltd. & Others) pending before the Special Judicial Magistrate (Pollution) Lucknow, it transpires that the Board filed the complaint against the petitioners also. The relevant paragraphs of the complaint (Annexure- 2) are reproduced as under:-
2. That M/s Ansal Papers Sikandrabad, District Bulandshahar which is a company within the meaning of section 47 of the 'Act' has been discharging knowingly its trade effluent into Khar river through drain which is a stream as defined in sub-section (j) of section 2 of the 'Act' and thereby causing continuous pollution of the said Khar river.
3. That under the provision of Section 25 of the 'Act' it has been made mandatory for every company to obtain the consent of the complainant 'Board' for bringing into use any new or altered outlet for the discharge of it's trade effluent into stream or well or sewer or on land, as defined in section 2 of the 'Act' read with it's amendment 'Act' of 1978.
4. That under the provisions of Section 26 of the 'Act' read with its Amendment Act, 1978 it has been made mandatory for every existing industry to obtain the consent of the complainant 'Board' for discharging it's trade effluent into stream or well or sewer or on land.
6. That in accordance with the provisions laid down under sub-section (I) of Section 25 of the 'Act' the said 12 accused company is required to submit an application for consent of the State Board in prescribed form alongwith the particulars regarding the construction, installation and operation of the industrial and commercial establishment or of any treatment and disposal system and such other particular as prescribed under law.
9. That the complainant Board by means of its letter dated 12.5.81 issued to the aforesaid company, has pointed out certain discrepancies in the consent seeking application as the same was incomplete in many respects.
11. That in view of the aforesaid report dated 20.06.81 and also taking into account that the company had no proper arrangement for treatment of their effluents and complete details have not been furnished with the consent seeking application, the complainant board was left with no other alternative than to refuse the consent prayed for in the public interest. The consent was accordingly refused by the complainant board by means of its registered letter no. 7051/C/Ansal Papers Mills/9 dated 07.08.81. In the aforesaid letter it was directed that the company may again apply for the consent within 30 days without paying any further fee for the consent .
15. That after 11.01.82 the accused opposite parties have not applied for the consent and are discharging their highly polluted trade effluents without obtaining consent of the complainant Board. The aforesaid industry was again informed of his liabilities under the aforesaid Act and it has also been asked from the opposite parties that why the prosecution proceedings may not be initiated against them, but all the efforts made by the Board have become futile.
16. That on 14.09.1983 the officers of the Board again 13 inspected the site of the aforesaid company after giving the proper notices as prescribed under the rules and Sri R. S. Rastogi, the General Manager or the aforesaid company was present at the time of inspection. A report dated 15.09.1983 sent by the regional office of the Board in this connection clearly shows that the opposite parties have been discharging their trade effluents without obtaining consent of the Board and without having proper treatment plant so that the effluent may conform the standard laid by the Board.
18. That inspite of repeated request the accused company did not apply for obtaining the consent of the state Board. A fresh u/s 25(1) read with section 26 of the Act uptill now. Thus the accused company has violated the provisions of Section 25/26 of the Act and is liable to be punished under section 44 of the Act.
20. That all the partners, directors and manager of the company are responsible for continuance commissioning of offence under Section 44 of this Act. Because the formalities for obtaining consent under Act and construction of effluent treatment plant can be taken only when these senior partners of the company resolve to do so. Offence mentioned in the complaint is being continuously committed against the society at large, animals and aquatic life in particular because of their personal monetary gains. It is therefore, prayed that all directors and manager of the company be summoned and punished according to law.
22. That all the directors and partners of the factory are liable for the offence being committed by the factory as the formalities for obtaining consent under the provision of the Act such as construction of proper treatment plant etc. are policy matter and cannot be taken up in hand without the 14 direction of the high dignities of the factory. Thus all the members of the Board of Directors of M/s Ansal Papers Factory alongwith others are liable for the offence committed under section 44 by not obtaining the consent of the Board as required by section 25/26 of the Act.
23. That under the provision of Section 47 of the Act where an offence under this Act has been committed by a company, every person who at the time the offence was committed was incharge 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 proceeded against and punished accordingly. Then the accused persons are liable to be punished under section 44 for the contravention of the provision of Section 25.
The relevant paragraphs of another complaint (Annexure-1) are reproduced as under:-
6. That in order to check that whether the industry is complying the order passed by the Court under Section 33 (2) on 24.03.84 or not the site of M/s. Ansal Papers, Sikandrabad, Bulandshahar was inspected by the Officer of the Board Sri Dinesh Chand Assistant Environmental Engineer on 2.1.85 in the presence of the representative of company after giving due notice for inspection to the opposite parties. According to the report the industry is discharging its polluted trade effluent into the stream in contravention of the order of the Court. The notice of sample and the inspection report are enclosed herewith as Annexure No. 2 & 3 to this complaint.
7. That sample of the effluent was also taken by the said officer of the Board on 2.1.85 in the presence of the 15 representative of the accused opposite parties after giving due notice and he same was got analyzed from the laboratory properly. The analysis report dated 2.1.85 clearly shows that all the material parameters of the trade effluent of M/s. Ansal Papers, Sikandrabad, Bulandshahar are much high than the standards laid down by the complainant Board & do not confirm to the standard prescribed. The copy of the standard prescribed by the Board and the said analysis report is being filed herewith as Annexure No. 4 & 5 to the complaint.
8. That the site of M/s. Ansal Papers, Sikandrabad, Bulandshahar was again inspected by the officer of the Board on 22.5.85 and it was found that the accused opposite parties are continuously discharging their highly polluting trade effluent still without proper treatment into the river Karva in contravention of the order dated 24.3.84 of the court under section 33(2). The copy of the said inspection report alongwith the notice for inspection are being filed herewith as Annexure No. 6 & 7 of this complaint.
9. That from the above submission evidence it is clear that the accused opposite parties have violated and continuously violating every moment the order and directions given by the Hon'ble Court u/s 33 of the said Act and so they have rendered themselves liable for the prosecution u/s 41 (2) of the aforesaid Act and should be punished according to law.
14. That under the provisions of section 47(1) of the aforesaid Act for the offence 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 16 proceeded against the punished accordingly.
Thus, the Board moved two separate complaints against the officers of the company for their prosecution. It transpires that petitioner no. 1 is Managing Director of the company, petitioner no. 2 is the occupier of the company and petitioner no. 3 is the Director of the company. The Board is of the view that in view of Section 47 of the Act they are liable for prosecution. It is further urged that accused-company is represented by the Managing Director and the accused company is attributable to take care with regard to the mandatory provision. But the accused persons have failed to take care of the same. In this context it may be specified that at this stage it would not be expedient in the interest of justice to quash the complaints (Annexures No. 1 & 2) for the reason that the complainant and the petitioners themselves prayed for keeping the proceedings of criminal case in abeyance till such time the order is not passed in accordance with law by the Magistrate.
The attention of this Court was drawn on the judgment and order dated 10.04.1987 referred to above wherein it was directed that the company had to inform by filing an application about the names of persons/person who at the time of occurrence was in-charge and was responsible for the conduct of the company. It was further directed that the said application if filed the Magistrate shall decide the same and pass orders against only those persons who at the time of the offence was incharge and responsible for the affairs of the company in view of Provision of Section 47 of the Act. The applicants were directed to appear before the Magistrate through counsel. It has been urged by the petitioners that this order has not been complied with and orders passed by Special Judicial Magistrate and learned Additional Sessions Judge dated 23.04.2005 and 15.05.2007 are erroneous and the same may be quashed along with the order issued by the Magistrate on 01.04.2005 and proceeding against the applicants is in contravention of the order of this Court and against the provisions of Criminal Procedure Code initiating the proceeding under Section 82 Cr.P.C. and also issuing non-bailable 17 warrants against them, despite the fact that summons were not served. Thus, at this stage it would not be expedient to quash the proceedings specifically when there is no prayer to this effect and prayer is only to the effect that the proceedings in criminal case be kept in abeyance. Even otherwise also in view of the averments made in the complaints referred to above, it is clear that at the time of issuing the process the Magistrate was mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only prima facie to be satisfied whether there is sufficient ground to proceed against the petitioners or not. In this context, in view of Section 47 of the Act and the averments made in the complaints the Magistrate issued summons against the complaints.
Learned counsel for the petitioners has placed reliance over Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others, (1983) 1 SCC 1. In this case the Hon'ble Apex Court considered the scope of Section 482 and evolved guidelines as to how inherent power should be exercised by the High Court to quash the trial. After going through case, it transpires that in this case the complaint was filed before Metropolitan Magistrate, who summoned all the respondents for being tried for violating the provisions of Food Adulteration Act. The said complaint was filed against them for having committed offence under section 7/16 of the aforesaid. In this context it transpires that the instant case has no bearing for the reason that Section 47 of Water (Prevention and Control of Pollution) Act, 1974 has a different dimensions. Consequently, the law as laid down by the Hon'ble Apex Court in the matter of Prevention of Food Adulteration Act has absolutely no bearing on the facts of the case especially under the circumstances that the law referred to above has also been considered several times by the Hon'ble Apex Court and was not applied in the matter of Water Pollution Act. Consequently, the petitioners can not take advantage of the aforesaid Act for getting the complaints quashed.
It would be noticed that sub-Section (1) of Section 47 is much 18 wider than sub-Section 4 of Section 17 of Food Adulteration Act, 1954. Proviso to sub-Section (1) shifts the burden on the delinquent officer or servant of the company responsible for the commission of the offence. The burden is on him to prove that he did not know of the offence or connived in it or they had exercised all due diligence to prevent the commission of such offence. The non obstante clause in sub-Section (2) expressly provides that notwithstanding anything contained is sub-section (1), where an offence under the 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 proceed against and punished accordingly.
Learned counsel for the petitioners has placed reliance on State of Haryana Vs. Brij Lal Mittal and others, (1998) 5 SCC 343, wherein it was held that the court has to weigh the vicarious liability of a person for being prosecuted for an offence committed under the Drugs and Cosmetics Act, 1940 and a Director will not be responsible if there is no allegation to indicate that he was dealing with the affairs of the complaint. This ruling too is not applicable to the facts of the present case for the reason that in the complaint specific averments have been made against the petitioners that they were responsible for discharging the trade effluents in river Karva which was noxious in nature. This ruling too is not applicable for the facts of the case. Consequently, the petitioners cannot take any advantage of making a submission on the strength of the aforesaid case law for getting the aforesaid complaints quashed. Needless to say that the complicity of the petitioners in this case and the averments made in the complaints prima facie constitute offence which cannot be ignored at this stage. However, it is for the trial court to weigh the evidence at the time of framing the charge.
Lastly, the petitioners have relied over National Small Industries 19 Corporation Ltd. vs. Harmeet Singh Paintal and another, (2010) 3 SCC
330. In this case a complaint was made against the Director under the Negotiable Instruments Act, 1881. The Hon'ble Apex Court held that in a case of dishonour of cheque, the director would not be held responsible on the basis of mere bald statement that he was in-charge and was responsible to the company for the conduct of its business. This ruling is also not applicable as scope of Section 47 of Water Pollution Act provide a distinct, specific and different vicarious liability of the Managing Director, Directors etc referred to above. Consequently, the averments made in the complaints cannot be brushed aside. However, on behalf of the petitioners further reliance has been placed on the decisions of Smt. Manibai and Another Vs. The State of Maharashtra, (1974) 3 SCC 760 and R. Banerjee and others Vs. H.D.Dubey and Other (1992) 2 SCC 552. These rulings are of no avail and on the basis of the aforesaid case laws, the petitioners cannot get the complaint quashed for the reasons that they have no bearings on the facts of the present case. The petitioners have placed reliance on Hari Shankar Jalan Vs. Food Inspector, Cherukole and Others, 1997 SCC (Cri) 968 and P.Rajarathinam Vs. State of Maharashtra and Others (2000) 10 SCC 529. These rulings do not deal with the pollution matter. Learned counsel for the petitioners has further relied over a decision of the Apex Court in U.P.Pollution Control Board Vs. M/s Modi Distillery and Others (Supra) and Nalin Thakor and others Vs. State of Gujarat and Others (2003) 12 SCC 461. On the strength of the aforesaid case laws, it has been urged that on account of non-application of mind in issuing the summons the complaints were not cognizable. These rulings too have no bearings on the facts of the case, as specific averments have been made in the complaint and moreover the Hon'ble Apex Court in U.P.Pollution Control Board Vs. Dr. Bhupendra Kumar Modi and another (2009) 2 SCC 147 considered the scope of these rulings and refused to quash the complaint. Consequently in view of the decision of the Hon'ble apex court at 20 this stage the complaints are not liable to be quashed and this Court cannot scrutinize evidence.
Moreover, the Hon'ble Apex Court in the case of P.Rajarathinam Vs. State of Maharashtra and Others (Supra), considered the scope of Section 482 Cr.P.C. and took a view on the point of vicarious liability as to who should answer the charge depends upon the facts. It will be open for the concerned court to pass appropriate order at the time of framing the charge and powers under Section 482 Cr.P.C. should not be invoked. Consequently, on the basis of aforesaid rulings also the matter has to be left to the discretion of the trial court to scrutinize th evidence at the time of framing the charge but at this stage close scrutiny of the evidence is not permissible by invoking the powers under inherent jurisdiction of this Court. The powers under Section 482 Cr.P.C. can only be invoked to check the abuse of the process of law when there is no effective alternative remedy to the applicant. While in this case, the proper forum is the trial court where all the points can be agitated and the trial court should take into consideration the entire subject matter and thereafter on the basis of evidence on record and making scrutiny of the matter decide to frame the charge or not but at this stage no direction can be issued not to frame the charge or to quash the complaint only on the ground that the petitioners' assertion that they are not responsible for the day-to-day working of the company.
As regards the contentions of the petitioners that no case is made out against them in view of the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others, AIR 1983 SC 67, I find that the three Judge Bench of Hon'ble Apex Court in U.P. Pollution Control Board Vs. Dr. Bhupendra Kumar Modi & Anr., 2009 CRI. L.J. 1148 considered the scope of each and every case cited by the petitioners and thereafter took a view that in a case of environmental matter the court should not exercise power under Section 482 Cr.P.C. for quashing the complaint as a court of revision and appeal. The inherent jurisdiction though wide has to be exercised carefully and with caution. The High 21 Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. Relevant para 21 reads as under:-
"21. It is our endeavour to point out that the High Court has quashed the complaint arising in an environmental matter in a casual manner by exercising power under Section 482 of the Cr.P.C. This Court has held exercise of power under Section 482 of the Cr.P.C. This Court has held exercise of power under Section 482 of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e.
(a) to give effect to an order of the Court; (b) to prevent abuse of the process of the Court; (c) to otherwise secure the ends of justice. Ity is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. To put it clear, it is the function of the trial 22 Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Criminal Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. "
In this context, it would be relevant to refer a Full Bench Decision of this Court in Ajeet Singh Vs. State of U.P., 2007 CriLJ 170. Relevant para 57 reads as under:-
"The normal process of the criminal trial cannot be cut short in a rather casual manner. The court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition... seeking the quashing of the FIR and the criminal proceedings."
In the case of Hamida Vs. Rashid, (2008) 1 SCC 474 the Hon'ble Apex Court also laid down certain norms as to how the power of section 482 Cr.P.C. has to be exercised which reads as under:-
"Inherent powers of High Court has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. Practice of High Courts in entertaining petitions under Section 482 when there was an effective alternative remedy available has been deprecated. Ends of justice would be better served if valuable time of the Court is 23 spent in hearing appeals rather than entertaining petitions under Section 482 Cr.P.C. At an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice."
In view of the above proposition of law, it is abundantly clear that prima facie on the basis of allegations made in the complaint it would not be expedient in the interest of justice to weigh the evidence and proceed in the manner as suggested by the learned counsel for the petitioners. At this stage, it would also not be expedient to embark upon the merits of the case. Accordingly, at this stage the prayer for quashing the criminal complaints in Criminal Case No. 13 & 14 of 1993 (U.P. Pollution Control Board Vs. Ansal Papers Ltd. & Others) is not tenable and this court declines to quash the proceedings of Criminal Case No. 13 & 14 of 1993 (U.P. Pollution Control Board Vs. Ansal Papers Ltd. & Others) against the petitioners. Thus, prayer no. 1 of the petitioner is not found tenable in the eyes of law.
On the point of non-compliance of order of this Court dated 10.04.1987 and also on the point of non-complicity of the applicants the attention of this court drawn on the provision of Section 305(5) Cr.P.C. wherein it has been urged that Sri A. B. Sen is the sole person responsible for commission of the offence and the trial court ought to have proceeded against him and the same was not done. Thus, in view of Section 47 of the Cr.P.C., it was incumbent on the Magistrate to issue process against Sri A. B. Sen in accordance with provisions of law. As regards complicity of the applicants in this case, the attention of this Court was drawn for non-compliance of the order dated 10.04.1987 of this Court which has been referred (supra). It is mandatory on the trial court to comply with on the principle of stare decisis. The order has to be complied with on the 24 principle of stare decisis.
The learned counsel for the petitioners has drawn the attention of this Court on the judgment and order dated 10.4.1987 passed by this Court wherein it was directed that the company had to inform by filing an application about the names of the persons who at the time of occurrence was in-charge and was responsible for the conduct of the company. It was further directed that the said application if filed, the Magistrate shall decide the same and pass orders against only those persons who at the time of the offence was in-charge and responsible for the affairs of the company in view of provision of Section 47 of the Act. The applicants were directed to appear before the Magistrate through counsel. In view of the order referred to above (supra), the applications were moved before the court of Special Judicial Magistrate and the same was dismissed and thereafter revision was preferred and the same was also dismissed on 15.5.2007 by Additional Sessions Judge. It has been prayed that the orders are erroneous and thus have not been passed in accordance with the directions of this Court. Accordingly, till such time the order dated 10.4.1987 may be complied with and the further proceedings in Criminal Case No. 13 and 14 of 1993 may be kept in abeyance. The attention of this Court has further been drawn to this fact that Shri A.B. Sen is the sole person responsible for the commission of the offence and the trial court ought to have proceeded against him, but the same was not done. It has further been averred that in view of provision of Section 305(5) Cr.P.C. referred to above, the company has filed the resolution before the court of learned Magistrate specifying the liability of Shri A.B. Sen, but the same was not considered. It was incumbent upon the Special Judicial Magistrate and the Court of Sessions to look into the matter and pass appropriate orders fixing the liability on the person concerned. In this context, it appears that the matter falls within the ambit of principles of stare decicis. The principle of stare decicis applies with full force for the reasons that the finality has to be attached with the order dated 10.4.1987 passed by this Court. The order has become final. The lower courts were bound to comply with the direction of this Court. Let me understand the 25 Principles of Stare Decicis, which has to be applied in this case:-
Dias on Jurisprudence Ed. 1964 in Mitra's Legal and commercial Dictionary 2nd Edition, 1976 defines the phrase 'Stare Decisis' as under:-
Stare Decisis. The common law doctrine is stare decisis, derived from stare decisis et non quieta movere. It is different from the broad doctrine of precedent prevalent in all developed systems in that if certain conditions are fulfilled, an English Judge has either to follow the previous decision or else to distinguish it; while in the continental systems, his counterpart may seek guidance from past decisions, but is not bound to follow them.
The doctrine of 'stare decisis' differs also from that of res judicata in the following ways:
(1) Res judicata applies to the decision in the dispute, while stare decisis operates as to the rule of law involved.
(2) The former binds only the parties and their successors, whereas the latter binds everyone.
(3) Res judicata applies to all Courts, but stare decisis is brought into operation only by the decisions of higher Courts.
(4) The former takes effect after the time for appeal is past; the latter operates at once.
Further, The Law Lexicon, 2nd Edition, Reprint 2002 defines the phrase 'Stare Decisis' as under:-
A-bid-by the decisions; (see 1 B1. Com. 70); a latin phrase meaning "to stand by decided cases; to uphold precedents; to maintain former adjudications.26
To stand by things decided; to abide by precedents were the same points come again in litigation.
It is a general maxim that when a point a law has been settled by decision, it forms a precedent which is not afterwards to be departed from. The Rule as stated is"to abide by former precedents (stare decisis), where the same points come again in litigation as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or swerve from according to his private sentiments; he being sworn to determine not according to his own private judgment., but according to the known; laws and customs of the land-not delegated to pronounce a new law, but to maintain and expound the old one-jusdicere et non jus dare.(Broom, Leg Max.)"
For the sake of convenience, the relevant observations of this Court in regard to the principles of stare decisis made in Diwan Singh Vs. State, AIR 1966 ALL. 19 (V 53 C 5) based on the decision of the Hon'ble Apex Court in Pritam Singh V. The State of Punjab, A.I.R. 1956 S.C. 415, are reproduced as under:-
"If two persons are prosecuted, though separately, under the same charge for offences having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anomalous position in law and is likely to shake the confidence of the 27 people in the administration of justice. Justice is not only to be done but also seem to be done. The principle of stare decisis will apply and the conviction of other accused cannot be sustained."
Hon'ble Apex Court in the case of Saurashtra Cement & Chemical Industries Ltd. and another Vs. Union of India and another, (2001) 1 SCC 91, dealing with the doctrine of stare decisis observed in paragraphs 32-35, which are reproduced as under:-
"32 This Court in Muktul V. Manbhari, AIR 1957 SC 918, explained the scope of the doctrine of stare decisis with reference to Halsbury's Laws of England and Corpus Juris Secundum in the following manner:
"Apart from any question as to the courts being of coordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the Supreme Appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake."
The same doctrine is thus explained in Corpus Juris Secundum-28
"Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and , although generally it should be strictly adhered to by the courts, it is not universally applicable."
Be it noted however that Corpus Juris Secundum adds a rider that 'previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.' The statement though deserves serious consideration in the event of a definite finding as to the perpetration of a grave wrong but that by itself does not denude the time -tested doctrine of stare decisis of its efficacy.
33. The two English decisions [Admiralty Commrs. V. Valverda Owners, 1938 AC 173, 194 (AC at p. 194) and Button V. Director of Public Prosecutions, 1966 AC 591
34. Recently Paripoornan, J. in Kattite Valappil Pathumma V. Taluk Land Board (1997) 4 SCC 114 in para 6 observed: (SCC p.120) 29 "We are further of the view, that even if another view is possible, we are not inclined to take a different view at this distance of time. Interpretation of the law is not a mere mental exercise. Things which have been adjudged long ago should be allowed to rest in peace. A decision rendered long ago can be overruled only if this Court comes to the conclusion that it is manifestly wrong or unfair and not merely on the ground that another interpretation is possible and the court may arrive at a different conclusion. We should remember that the law laid down by the High Court in the above decision has not been doubted so far. The Act in question is a Stat enactment. These are weighty considerations to hold that even if a different view is possible, if it will have the effect of upsetting or reopening past and closed transactions or unsettling titles all over the State, this Court should be loathe to take a different view.
On this ground as well, we are not inclined to interfere with the judgment under appeal.
"35. In the wake of the aforesaid, we do feel it expedient to record that taking recourse to the doctrine as above would be an imperative necessity, so as to avoid uncertainty and confusion, since the basic feature of law is its certainty and in the event of any departure therefrom the society would be in utter confusion and the resultant effect of which would be legal anarchy and judicial indiscipline- a situation which always ought to be avoided. The Central Legislature introduced the legislation (MMRD Act) in the year 1957 and several hundreds and thousands of cases have already been dealt with on the basis thereof and the effect of a declaration of a contra law would be totally disastrous 30 affecting the very basics of the revenue jurisprudence. It is true that the doctrine has no statutory sanction but it is a rule of convenience, expediency, prudence and above all the public policy. It is to be observed in its observance rather than in its breach to serve the people and subserve the ends of justice."
This doctrine has also been followed by the Hon'ble Apex Court in para 321 in the case of State of West Bengal Vs. Kesoram Industries Ltd., (2004) 10 SCC, 201, which is reproduced as under:-
"321 Section 25 of the MMRD Act, 1957 by necessary implication refers to the taxing power of Parliament. Imposition of taxes on mineral rights would affect the development of mines and minerals. Parliament's authority to regulate and control mineral development would be seriously impaired and affected if it is held that the matter relating to imposition of tax on minerals is also vested in the State. The vires of Sections 9 and 9-A of the 1957 Act has not been questioned. In fact, they have been held to be intra vires in State of M.P. V. Mahalaxmi Fabric Mills Ltd., 1995 Supp (1) SCC 642, Saurashtra Cement and Chemical Industries Ltd. V. Union of India, (2001) 1 SCC 91 and South Eastern Coalfields Ltd., V. State of MP., (2003) 8 SCC 648 Unless power to levy compulsory impost is held to be ultra vires the Constitution, it cannot be held that Parliament has encroached upon the States' power of taxation."
Hon'ble Apex Court in the case of Union of India and another Vs. Azadi Bachao Andolan and another, A.I.R. 2004 SC 1107 at paragraphs No. 33 and 34 considered the scope of principle of Stare Decicis. Relevant paragraphs No. 33 and 34 are reproduced as under:-
3133. The learned Attorney General justifiably relied on the observations of this Court in Mishri Lal V. Dhirendra Nath (dead) by LRs. And others in which this Court referred to its earlier decision in Mukrul V. Manbhari on the scope of the doctrine of stare decisis with reference to Halsbury's Law of England and Corpus Juris Secundum, pointing out that a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority other than the court establishing the rule, even though the court before whom the matter arises afterwards might be of a different view. The learned Attorney General contended that the interpretation given to Section 90 of the Income-tax Act, a Central Act, by several High Courts without dissent has been uniformally followed; several transactions have been entered into based upon the said exposition of the law; that several tax treaties have been entered into with different foreign Governments based upon this law, hence, the doctrine of stare decisis should apply or else it will result in chaos and open up a Pandora's box of uncertainty.
34. We think that this submission is sound and needs to be accepted. It is not possible for us to say that the judgments of the different High Courts noticed have been wrongly decided by reason of the arguments presented by the respondents. As observed in Mishrilal even if the High Courts have consistently taken an erroneous view, (though we do not say that the view is erroneous) it would be worthwhile to let the matter rest, 32 since large numbers of parties have modulated their legal relationship based on his settled position of law.
Hon'ble Apex Court in the case of Milkfood Ltd. Vs. M/s. GMC Ice Cream (P) Ltd., A.I.R. 2004 SC 3145(1) has considered the scope of principle of stare decicis. Relevant paragraphs no. 72 & 73 read as under:-
72. While interpreting a judgment this Court must pon- point its attention to the ratio thereof. A court of law must not lose sight of the doctrine of 'stare decisis'. A view which has been holding the field for a long time should not be disturbed only because another view is possible.
73. Keeping in view the fact that in all the decisions, referred to hereinbefore,this Court has applied the meaning given to the expression 'commencement of the arbitral proceeding' as contained in Section 21 of the 1996 Act for the purpose of applicability of the 1940 Act having regard to Section 85(2)(a) thereof, we have no hesitation in holding that in this case also, service of a notice for appointment of an arbitrator would be the relevant date for the purpose of commencement of the arbitration proceeding.
Again the scope of principle of stare decicis has been considered by the Hon'ble Apex Court in the case of Sakshi V. Union of India and other, A.I.R. 2004 SC 3566. Paragraph No. 23 is relevant, which reads as under:-
23. Stare decisis is a well known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known, and that, when the law is declared by Court of 33 competent jurisdiction authorised to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a Court of last resort should not be disregarded and set aside but should be adhered to and followed. What it precludes is that where a principle of law has become established by a series of decisions, it is binding on the Courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law.
Principle of stare decicis has been considered by the Hon'ble Apex Court in the case of Iridium India Telecom Ltd. Vs. Motorola Inc., A.I.R. 2005 SC 514(1). Relevant paragraph no. 40 is reproduced as under :-
40. In our judgment, the principle of stare decisis squarely applies to the case on hand. In the first place, we are not satisfied that all the aforesaid judgments of the High Courts have been wrongly decided. Secondly, even assuming that it is possible to take a different view, as long as the principle has been consistently followed by the majority of the High Courts in this country, as observed in Mishri Lal (supra), even if the High Courts consistently have taken an erroneous view, (though we do not see that the view is erroneous), it would be worthwhile to let the matter rest, since a large number of parties have modulated and continue to modulate their legal relationships based on the settled law. On this principle also the view taken by the Division Bench of the High Court of Judicature at Bombay commends itself to us.
Thus, in view of the Principles of Stare Decicis, the trial court and 34 the revisional court were bound to comply with the directions of this Court in the manner as directed by this Court on 10.4.1987. From a bare reading of the impugned order dated 23.4.2005 and 15.5.2007, it transpires that the applications were decided by the courts without adhering the directions of this Court. Section 47 of the Water Pollution Act, 1974 deals with the offences by companies, 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-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 10 be proceeded against and punished accordingly.
Explanation.-- For the purposes of this section.--
(a) 'company' means any body corporate, and includes a 35 firm or other association of individuals;and
(b) 'director' in relation to a firm means a partner in the firm."
Section 25 speaks about restrictions on new outlets and new discharges and Section 26 relates to provision regarding existing discharge of sewage or trade effluent. Section 44 speaks about penalty for contravention of Section 25 or Section 26.
Under Section 47 of the Water Pollution Act, 1974, the Directors or Managers are also liable to be punished if the offence has been committed with their consent or connivance.
1. Definitions.-Company.- The expression, "company" is defined in Section 3 of the Companies Act, 1956, as follows:
"Definitions of company', 'existing company', 'private company, and 'public company'. (1) In the Companies Act, 1956, unless the context otherwise requires, the expressions 'company', 'existing company', 'private company' and 'public company' shall, subject to the provisions of sub-section (2) have the meaning specified below:
(i) 'Company means a company formed and registered under this Act or an existing company as defined in Cl. (ii);
2. Director.- The word "director" has been defined in Section 2 (13) of the Companies Act, 1956, as follows:
"(13) 'director includes any person occupying the position of director, by whatever name called."
3. Manager- The word "manager" has been defined in Section 2(24) of the Companies Act, 1956, as follows:
"(24) 'manager' means an individual (not being the 36 managing agent) who, subject to the superintendence, control and direction of the Board of Directors, has the management of the whole, or substantially the whole, of the affairs of a company, and includes a director or any other person occupying the position of a manager, by whatever name called, and whether under a contract of service or not".
5. Managing Director.- The words "meaning director' has been defined in Sec. 2 (26) of the Companies Act, 1956, as follows:
"(26)managing director" means a director who, by virtue of an agreement with the company or of a resolution passed by the company in general meeting or by its Board of directors or, by virtue of its memorandum or articles of association, is entrusted with [substantial powers of management] which , would not otherwise be exercisable by him, and includes a director occupying the position of a managing director, by whatever name called:
Provided that the power to do administrative acts of a routine nature when so authorised by the Board such as the power to affix the common seal of the company to any document or to draw and endorse any cheque on account of the company in any bank or to draw and endorse any negotiable instrument or to sign any certificate of share or to direct registration of transfer of any share, shall not be deemed to be included within substantial powers of management:
Provided further that a managing director of a company shall exercise his powers subject to the superintendence, control and direction of its Board of directors;
376. Officer.- The word "officer" has been defined in Section 2 (30) of the Companies Act, 1956, as follows:
"managing director" means a director who, by virtue of an agreement with the company or of a resolution passed by the company in general meeting or by its Board of directors or, by virtue of its memorandum or articles of association, is entrusted with [substantial powers of management] which , would not otherwise be exercisable by him, and includes a director occupying the position of a managing director, by whatever name called:
"officer" includes any director, manager agent, secretaries and treasurers, manager or secretary or any person in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is or are accustomed to act, and also includes-
(a) where the managing agent, the secretaries and treasurers or the secretary is or are a firm, any partner in the firm;
(b) where the managing agent or the secretaries and treasurers is or are a body corporate, any director or manager of the body corporate;
(c) where the secretary is a body corporate, any director, managing agent, secretaries and treasurers or manager of the body corporate;
In these cases it has been said in the complaint that the accused persons are knowingly and intentionally discharging their polluted trade effluent without obtaining the consent of the Board and they are Directors and Secretary of the company and they are responsible for the conduct of day-to-day business of the company and responsible for not obtaining the consent of the Board and discharging the trade 38 effluents without obtaining consent. It has further been said that they are incharge of the business of the company and they are responsible for day-to-day working of the company and also conducing business of the company and continuous commissioning of the offence.
Thus there is clear allegation against them that they are responsible for conduct of the work of the company. So they can be prosecuted unless they prove that the offence was committed without their knowledge or that they exercised all due diligence to prevent the commissioning of such offence.
Section 47(1) spells out a deeming fiction of vicarious liability and a rule of evidence laying the burden of proof on persons in charge of and responsible to the company for the conduct of its business. It is settled beyond cavil that rules of evidence and deeming fictions are not to be expressly spelt out and pleaded. They are matters which are for consideration and application in the course of the trial. To required that the complaint itself must plead a rule of evidence or, in terms spell out a deeming fiction provided by the statute therein in an argument bordering on hyper-technicality. One must always keep in mind the broader perspective that the administration of criminal law is more a matter of substance than of form and should not be allowed to be obscured by pettifogging technicality. Now it is manifest from the above that the categoric allegation in the evidence was that the petitioner was the Managing Director of the company and this is a fact which is undisputed on the record. The Managing Director of a company from his very designation implies both the control and command of the affairs of such a company and equally a statutory liability to the company for responsible conduct of its business. It is a compendious term, which signifies both control of and responsibility to the company both in ordinary parlance and by virtue of the provision of a person as a Managing Director of the company there must be a further pleading that he is the person in charge thereof and is responsible to it for the conduct of its business would suffer from the 39 vice of literality of course, as the proviso, to Section 47(1) shows, it is permitted even for a Managing Director to show that he did not have any knowledge of the commission of the offence or that he acted with the greatest diligence to prevent the same. But, the burden of proof is laid upon him. The factum of being the managing Director of the company is by itself sufficient to attract the provisions of Section 47(1) and the vicarious liability specified therein. The specific words therein he was was in charge of and was responsible to the company for the conduct of the business of the company are not a magic incantation which, unless repeated, would vitiate a prosecution if the substance of the matter is well spelt out either in the complaint itself or in categoric terms by acceptable testimony. Thus, Section 47(1) of the Act does not necessarily mandate the incorporation of the words.- "was in charge of and was responsible to the company for the conduct of the business of the company"-in all complaints against the Chairman, the Managing Director or the General Manager of the company for offences in contravention of the company for offences in the Act.
Section not mandate on corporation of words "was in charge of and was responsible to the company for the conduct of the business of the company. Consequently, to insist that in spite of the description of a person as a Managing Director of the company there must be a further pleading that he is the person in charge thereof and is responsible to it for the conduct of its business would suffer from the vice of laterality of course, as the proviso, to Section 47(1) shows, it is permitted even for a Managing Director to show that he did not have any knowledge of the commission of the offence or that he acted with the greatest diligence to prevent the same. But the burden of proof is laid upon him. The factum of being the Managing Director of the company is by itself sufficient to attract the provisions of Sec. 47(1) and the vicarious liability specified therein. The specific words therein he was in charge of and was responsible to the company for 40 the conduct of the business of the company are not a magic incantation which unless repeated, would vitiate a prosecution if the substance of the matter is well spelt out either in the complaint itself or in categoric terms by acceptable testimony.
Unlike sub-section (1) which foists vicarious liability only on persons in charge of and responsible to the company for the conduct of its business, the sub-section imposes a somewhat similar liability on a larger class of directors, managers, secretaries or even other officers of the company. In a way this sub-section is envisaged to widen the net of vicarious liability and to bring within its sweep not only the primal official of the company but even other officers of thereof if the commission of the offence by the company can be established to have been done with the consent, connivance or neglect on their part. Thus, the role and scope of sub-section (2) is somewhat different from that of sub-section (1), the former being applicable only to persons directly in charge of and responsible to the company and the latter having a wider application though in a given situations. They might slightly overlap. Equally the stringency of vicarious liability in the two sub- sections is variable. When closely viewed, sub-section (2) is clearly indictive of the fact that it is both a rule of evidence and yet again a deeming fiction or vicarious culpability. Perhaps the one crucial aspect herein is the use of the word proved in the earlier part of the sub-section. It comes into play only at the stage of the availability of adequate proof that the offence has been committed with the consent, connivance or neglect of the principal or other officers of the company. The usual and the normal rule of criminal law is that the charge must be brought home directly to the offender. However, sub- section (2) lightens the burden by providing that even if it is proved that the principal officers were guilty of consent, connivance or negligence with regard to the offence committed by the company, they would be within the net of culpability. This is effectuated by an express deeming fiction that if any of the aforesaid ingredients is 41 established then the officials concerned will be held guilty of that offence and be punished accordingly. Sub-section (2) may truly come into play during the course of the trial and even at its conclusion when it is proved that the offence has been committed with the consent, connivance or neglect of the company's principal officials. Thus, the stringent rule in sub-section (2) in a way provides a second line of defence for the prosecution. Even where the case set up is that the offence has been directly, wilfully or deliberately committed by the company and its officials but the same cannot be established to the hilt, this sub-section provides that such officers would still be guilty if the relatively lower culpability of even consent or mere connivance or neglect is laid at his door. This is probably and patently due to the difficulties of proving a charge beyond reasonable doubt in cases of vicarious liability for offences committed by legal and artificial persons as compared to natural persons. It bears repetition that this sub-section (2) is a rule of evidence for apportioning guilty when consent, connivance or neglect is proved by its principal officer and a deeming fiction of guilt for vicarious liability to the crimes committed by the company itself. Now once it is held as above, it is well settled that a rule of evidence or a deeming fiction of the law are not to be pleaded as such. No principle warrants that either in a complaint or in a first information report the literal words of the statute must be incorporated or what is even important is that the rule of evidence with regard to burden of proof and a deeming fiction of guilt should be quoted at the foundational stage. Therefore, to require that the complaint or the first information report must inflexibly plead consent, connivance or negligence of the officers at the threshold stage is, patently fallacious. Seen broadly, the deeming fiction is primarily one of evidence and proof and not of the literal formalities of pleading which are foreign to the criminal law. Indeed, it must be notice that in a particular case the prosecution charge may be one of direct, deliberate and willful commission of the offence by the company and its official. In such a situation to require that they should plead at the 42 outset that it was only by way of connivance or neglect would be an absurdity and, indeed, destructive or contrary to the case set up. Again, as has been noticed above, sub-section (2) applies independently and notwithstanding anything contained in sub-section (1). Therefore, to require that the pleading of consent, connivance or neglect must be incorporated even with regard to the guilt under sub-section (1), which is absolute pertaining to the person in charge of and responsible to the company, is in a way rather more fallacious. Thus, Section 47(2) does not mandate the incorporation that the offence was committed with the consent or connivance or was attributable to the neglect on the part of the Chairman, Director or General manager of the company in the complaint itself.
A bare reading of Section 47 makes it manifest that besides persons who at the time the offence was committed were in charge and were responsible to the Company for the conduct of the business of the company, the Company as well is to be deemed to be guilty of the offence and be liable to be proceeded against and punished accordingly. The person conceived of in the section not only include people who constitute the company but others as well. And in the constitution of the Company, which word confinedly includes the firm, all partners of the firm are seemingly guilty of the offences and liable to be proceeded against and punished accordingly. It significantly does not hold them liable straightaway but starts with the presumption in their being arraigned as accused. The safety valve is provided in the proviso. Any of these persons can take shelter thereunder to say that the offence was committed without his knowledge or that he exercise all due diligence to prevent the commission of the offence. Yet at any stage, on the contrary, if consent or connivance or any neglect is attributed to any director, manager, etc. then again the deeming provision comes into operation and they can be held liable to be proceeded against and punished accordingly. The section, as it appears is comprehensive enough to bring in a take 43 out people dependent on the facts and circumstances of each case. But to say that being with no director of a company or partner of a firm can be tried for the offence committed by the Company apparently does not appeal. In all these conceived of under Secs 25 and 26 of the said Act, requisite notices were sent to all concerned inclusive of the petitioners to do the needful as required under the law. It is only on the failure thereof that these complaints have been filed.
In Mahmud Ali vs. State of Bihar and Another, AIR 1986 Pat 133, the Full Bench of the High Court considered the scope of Section 47(2) of Water Pollution Act, 1974. It has also been considered that the Directors and Officers of the company can be prosecuted under this section unless they prove that the offence was committed without their consent or connivance or knowledge or that they exercised all due diligence to prevent the commissioning of such offence. Thus, it is permitted to show that they did not have knowledge of the commission of the offence or they acted with the greatest diligence to prevent the same. Section 47 comes into play only at the stage of availability of adequate proof about commission of the above offence. The relevant extracts are reproduced as under;
"5. To appreciate the aforesaid contention, it becomes necessary to have a broader look on Section 47 of the Act. It would seem undisputed that the Water (Prevention and Control of Pollution) Act, 1974 is a recent beneficent legislation enacted in the larger interest of a cleaner ecology. This is plainly indicated by its very preamble which is in the following terms : --
"An Act to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and 44 functions relating thereto and for matters connected therewith."
Plainly enough, the prevention and absolute control of water pollution and maintaining or restoring of wholesomeness of the water resources of the country cannot but be labelled as beneficent legislation which has to be somewhat liberally construed. The violation of the provisions of the Act, apart from the individual persons, may also be committed by companies, bodies corporate, firms and other associations of individuals. Section 47 which we are called upon to construe provides specifically for offences by companies which by virtue of the Explanation was to extend to all the aforementioned bodies. It is well settled that the strict criminal liability of companies or legal persons is in a class by itself and poses problems peculiar to them. Since a legal person is a fiction of the law and does not exist in actuality, the issue of vicarious liability of the office-bearers through whom a company must necessarily act, comes to the fore. A plain reading of Section 47 of the Act would indicate that this incorporates the stringent principle of strict vicarious criminal liability of persons who are responsible to the company for the conduct of its business or its responsible office bearers like a Director, Manager, Secretary, etc., for all offences commuted by a company. Now, strict vicarious criminal liability is somewhat of an exception to the general rule of direct personal culpability and is a modern development through statutory provisions. That there can be such vicarious criminal liability by legislative mandate is no longer in dispute. Nevertheless steeped as we are in the basic 45 principle of criminal jurisprudence that mens rea must be an ingredient of an offence and both the act and intent must concur to constitute a crime, it needs some effort to accept whole-heartedly the legislative mandate of vicarious criminality even in the absence of either of the aforesaid ingredients.
6. The scheme of Section 47 calls for a somewhat closer attention for its true construction. The word 'company' employed therein, as has already been noticed, means any body corporate and includes a firm or other associations of individuals, and Director in relation to the firm means a partner of that firm. Sub- section (1) creates a deeming legal fiction whereby every person, who is in charge of and/or responsible to the company for the conduct of its business becomes automatically guilty of the offence committed by such a company and is liable to be proceeded against and punished accordingly. No other overt act or direct commission of the offence by such a person is necessary barring the factum of being in charge of the company or responsible thereto for the conduct of its business. As already noticed, this is so by virtue of the deeming fiction under Sub-section (1) of Section 47 and one is inclined to refer to the famous dictum of East End Dwelling Co. Ltd. v. Finsbury Borough Council. (1952) AC 109 at Pp. 132-133:--
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 46 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The aforesaid rule stands approved and affirmed by the Final Court in State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244 and Boucher Pierre Andre v. Superintendent, Central Jail. Tihar. New Delhi, (1975) 1 SCC 192 : (AIR 1975 SC 164). Section 47(1), therefore, has two parts. The basic liability for the offence alleged or established is against the company as such. Once the allegation is levelled or established, then by a fiction of the law every person in charge of and responsible to the company for the conduct of its business is, in the eye of law, deemed as much guilty of the offence as the primal offending company.
7. That the aforesaid rule is stringent and rigorous is manifest. Yet this is sought to be tempered and a shade softened by the proviso to Sub-section (1). This lays down that such a person on whom vicarious liability has been foisted may wriggle out of the same (if one may use that word) if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence. The burden of proof is clearly laid upon such a person and it is thus plain that the proviso is a rule of evidence which reverses the ordinary mandate of criminal liability that the burden of establishing the offence lies on the prosecution. Thus viewed, Section 47(1) and the proviso thereto would lay down that once the offence is either 47 alleged or established against the company and the added factum of being in charge of and responsible to the company for the conduct of its business is existent against a person, he becomes liable therefor, without more, vicariously. The burden is then laid upon him to establish and prove a total absence of knowledge about the commission of the crime or a diligent prevention thereof.
8. Analysed as above, Section 47(1) spells out a deeming fiction of vicarious liability and a rule of evidence laying the burden of proof on persons in charge of and responsible to the company for the conduct of its business.
9. Once it is held as above, the argument of the learned counsel for the petitioner falls in its place and stands conclusively repelled. It is settled beyond cavil that rules of evidence and deeming fictions are not to be expressly spelt out and pleaded. They are matters which are for consideration and application in the course of the trial. To require that the complaint itself must plead a rule of evidence or, in terms, spell out a deeming fiction provided by the statute therein is an argument bordering on hyper technicality. One must always keep in mind the broader perspective that the administration of criminal law is more a matter of substance than of form and should not be allowed to be obscured by pettifogging technicality.
14. ................The Managing Director of a company from his very designation implies both the control and command of the affairs of such a company and equally a statutory liability to the company for responsible conduct of its business. It is a compendious term, which 48 signifies both control of and responsibility to the company both in ordinary parlance and by virtue of the provisions of the Indian Companies Act. Consequently, to insist that in spite of the description of a person as a Managing Director of the Company, there must be a further pleading that he is the person in charge thereof and is responsible to it for the conduct of its business would, to my mind, suffer from the vice of literality. Of course, as the proviso to Section 47(1) shows, it is permitted. even for a Managing Director to show that he did not have any knowledge of the commission of the offence or that he acted with the greatest diligence to prevent the same. But the burden of proof is laid upon him. The factum of being the Managing Director of the company is by itself sufficient to attract the provisions of Section 47(1) and the vicarious liability specified therein. The specific words therein he was in charge of and was responsible to the company for the conduct of the business of the company are not a magic incantation which, unless respected, would vitiate a prosecution if the substance of the matter is well spelt out either in the complaint itself or in categoric terms by acceptable testimony.
11. The view aforesaid receives direct support from Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (AIR 1983 SC 67) (supra). Therein even with regard to the lesser rank of officer like the Manager, their Lordships observed as follows : --
"So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act."
4912. ................To finally conclude on this aspect, on the larger purpose of the Act and the particular language of Section 47(1} of the Act, as also on principle and binding precedent, the answer to question No. (i) posed at the outset is rendered in the negative. It is held that Section 47(1) of the Act does not necessarily mandate the incorporation of the words "was in charge of and was responsible to the company for the conduct of the business of the company" in all complaints against the Chairman, the Managing Director or the General Manager of the company for offences in contravention of the Act.
13. Adverting now to question No. (ii), it may perhaps be noticed at the very outset that what has been held above would broadly apply mutatis mutandis to Sub- section (2) of Section 47 of the Act as well. Significantly it begins with a non obstante clause and this, perhaps, would have effect independently and notwithstanding anything contained in the preceding Sub-section (1). In a way it overrides the said provision and is somewhat wider in its application. Unlike Sub-section (1) which foists vicarious liability only on persons in charge of and responsible to the company for the conduct of its business, this sub-section imposes a somewhat similar liability on a larger Class of Directors, managers, Secretaries or even other officers of the company. In a way this sub-section is envisaged to widen the net of vicarious liability and to bring within its sweep not only the primal officials of the company but even other officers thereof if the commission of the offence by the company can be established to have been done with the consent, connivance or neglect-on their part. Thus, the role and scope of Sub-section (2) is somewhat different 50 from that of Sub-section (1), the former being applicable only to persons directly in charge of and responsible to the company and the latter having a wider application though in a given situation. They might slightly overlap. Equally the stringency of vicarious liability in the two sub-sections is variable.
14. When closely viewed, Sub-section (2) is clearly indicative of the fact that it is both a rule of evidence and yet again a deeming fiction for vicarious culpability. Perhaps the one crucial aspect herein is the use of the word 'proved' in the earlier part of the sub-section. It comes into play only at the stage of the availability of adequate proof that the offence has been committed with the consent, connivance or neglect of the principal or other officers of the company. The usual and the normal rule of criminal law is that the charge must be brought home directly to the offender. However, Sub-section (2) lightens the burden by providing that even if it is proved that the principal officers were guilty of consent, connivance or negligence with regard to the offence committed by the company, they would be within the net of culpability. This is effectuated by an express deeming fiction that if any of the aforesaid ingredients is established then the officials concerned will be held guilty of that offence and be punished accordingly. Sub- section (2) may truly come into play during the course of the trial and even at its conclusion when it is proved that the offence has been committed with the consent, connivance or neglect of the company's principal officials. Thus, the stringent rule in Sub-section (2) in a way provides a second line of defence for the prosecution. Even where the case set up is that the offence has been directly, wilfully or deliberately 51 committed by the company and its officials but the same cannot be established to the hilt, this sub-section provides that such officer would still be guilty if the relatively lower culpability of even consent or mere connivance or neglect is laid at his door. This is probably and patently due to the difficulties of proving a charge beyond reasonable doubt in cases of vicarious liability for offences committed by legal and artificial persons as compared to natural persons. It bears repetition that this Sub-section (2) is a rule of evidence for apportioning guilt when consent, connivance or neglect is proved by its principal officer and a deeming fiction of guilt for vicarious Liability to the crimes committed by the company itself.
15. Now once it is held as above, it is well settled that a rule of evidence or a deeming fiction of the law are not to be pleaded as such. No principle warrants that either in a complaint or in a first information report the literal words of the statute must be incorporated or what is even important is that the rule of evidence with regard to burden of proof and a deeming fiction of guilt should be quoted at the foundational stage. Therefore, to require that the complaint or the first information report must inflexibly plead consent, connivance or negligence of the officers at the threshold stage is, to my mind, patently fallacious. Seen broadly, the deeming fiction is primarily one of evidence and proof and not of the literal formalities of pleading, which are foreign to the criminal law. Indeed, it must be noticed that in a particular case the prosecution charge may be one of direct, deliberate and wilful commission of the offence by the company and its officials. In such a situation, to require that they should plead at the outset that it was only by way of 52 consent or connivance or neglect would be an absurdity and indeed, destructive or contrary to the case set up. Again, as has been noticed above, Sub-section (2) applies independently and notwithstanding anything contained in Sub-section (1), Therefore, to require that the pleading of consent, connivance or neglect must be incorporated even with regard to the guilt under Sub- section (1), which is absolute pertaining to the person in charge of and responsible to the company, is in a way rather more fallacious.
15A. To conclude on this aspect, the answer to question No. (ii) is rendered in the negative. It is held that Section 47(2) does not mandate the incorporation of the allegation that the offence was committed with the consent or connivance or was attributable to the neglect on the part of the Chairman, Director or General Manager of the company in the complaint itself. "
Thus, in view of Principles of Stare decicis, the order dated 10.4.1987 has become final. It cannot be challenged by opposite parties also. It was the duty of the trial court and revisional court to comply with the directions of this Court and pass appropriate orders. From a bare reading of impugned order dated 23.4.2005 and 15.5.2007, it transpires that both the lower courts misconstrued the entire subject and passed the order without adhering to the directions of this Court. In this regard, it is relevant to mention that in compliance of the order dated 10.4.1987 passed by this Court, one application was moved by Shri A.P. Diwedi through A.P. Singh, Advocate under Section 47 of the Act read with Section 245(2) and 305 of Cr.P.C. Relevant extracts of the aforesaid application is reproduced as below:-
1. That the applicant has been authorized to appear in the above- noted case by the Company's Chairman who 53 has been empowered to execute power of attorney vide resolution dated 30.4.2004.
2. That it is relevant to mention here that M/s Ansal Paper which was a unit of Ansal Properties and Industries Ltd. ceased to carry on its business on 2.6.1987 and is now non-existent as on date. The return to this effect was also filed before the Income Tax Authority and this fact of closure of Factory was considered and accepted by the Income Tax Authority and an assessment order dated 31.3.1992 to this effect was passed by Dy. Commissioner Income Tax, New Delhi.
3. That non-appearance of the company's Representative and other accused persons was not intentional, it was only on the intimation of the counsel for the accused, who is also representing Accused No. 2 in another matter pending before this Court, that the applicant could come to know about the pendency of the present case. Even the counsel who was conducting the case earlier, did not send any intimation about the aforesaid proceedings.
4. That it is evident from Section 47(1) of Act no. 6 of 1974 which reveals that a person who at the time the offence was committed was incharge, responsible to the company for the conduct of the business of the company would be held guilty for the offence.
5. That vide order dated 10.4.1987 passed by Hon'ble High Court at Allahabad in Criminal Misc. Case No. 10260 of 1986 the Hon'ble Court considered the aforesaid averments raised in para-4 hereinabove and observed and made it open to the company to inform the court about the names of the persons or person who at time of occurrence 54 was incharge and was responsible for the company and for the conduct of the company. It was further directed that the learned Magistrate should proceed against only those persons who at the time of offence were incharge and responsible to the company.
6. That in pursuance and compliance of the order dated 10.4.1987 an application was moved on 28.1.1988 before the learned Magistrate stating the name of the person i.e. Mr. A.B. Sen, son of R.B. Sen who was responsible for day to day affairs of accused no. 1, this power was conferred upon Mr. Sen vide resolution of the Board of the Directors of the company dated 30.9.1985.
11. That it is evident from the application dated 28.1.1988 and resolution dated 30.9.1985 which clearly establishes that Mr. A.B. Sen was the person who was appointed as an occupier of Ansal Paper and was vested with the power of complete and direct control over the affairs of the factory, and the applicants herein were neither incharge nor responsible for the company and for the conduct of the business of the company.
Thereafter on 1.4.2005 the learned Magistrate dismissed the application on following grounds:-
i. The application was not signed by Shri A.P. Dwivedi and the applicants/petitioners.
ii. Earlier on 16.7.1990, it was urged that Mr. R.C. Rastogi, the then General Manager was responsible for the day to day functioning of the company while in this application Shri A.B. Sen has been mentioned as the person responsible for handling the affairs of the company. Accordingly, the contents of both the applications are 55 contrary to each other.
iii. The application under Section 245 (2) Cr.P.C. cannot be moved unless the evidence is adduced under Section 244 Cr.P.C.
iv. Section 305 Cr.P.C. cannot be taken into consideration as a defence of the applicants. v. The revisional court took the view that the
application was rightly rejected as the same was not signed by the person concerned and the impugned order was not a final order, accordingly the revisional jurisdiction was wrongly invoked by the applicants.
vi. The applicants were summoned and against summoning order the provision of revision are not attracted.
vii. Unless accused persons/applicants appear before the court concerned, they have no locus standi to further proceed in the matter.
After going through the entire material available on record, it appears that the learned Magistrate as well as learned Additional Sessions Judge committed manifest error in rejecting the application and not complying the direction given by this Court on 10.4.1987. Thus both the orders are liable to be quashed for following reasons:-
Section 305(5) Cr.P.C. postulates as under:-
"Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the 56 corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed.
Thus, in view of Section 305 (5) Cr.P.C. the court has to raise presumption under Section 114 of Indian Evidence Act about the statement made by the company and there was no material before the court below to presume otherwise. There was no objection from the side of opposite parties about the allegations made in the application.. Moreover, it is clear from the averments made under Section 305(5) Cr.P.C. that A.B. Sen was appointed as incharge of the company, he was responsible for day to day functioning of the company i.e. accused no. 1. The Board of Directors made a resolution to this effect on 30.9.1985. Thus, there was hardly any occasion for the learned Magistrate to disbelieve the version of the Board of Directors and company on the point of complicity of A.B. Sen. There was noting on record contrary to it. Thus a presumption under Section 305(5) Cr.P.C. read with Section 114 of Indian Evidence Act may be raised about the genuineness of resolution of Board of Directors of Company dated 30.9.1985. No credible evidence was available on record to discredit the same and the resolution at this stage can not be said to be false and fabricated document.
It is further pertinent to mention that A.B. Sen was remained working in the Company through out and was present even at the time of taking the sample of the effluent. The company brought it to the notice of the learned Magistrate in the application dated 28.1.1988 that A.B. Sen was appointed as a sole occupier of Ansal Papers Ltd. and he was vested with the power and control over the affairs of the company. This Court on 10.04.1987 directed the Magistrate that after considering the said application he shall proceed with the case against those persons who at the time of offence were incharge and responsible for the day to day functioning and for the conduct of the company as mentioned under Section 47 of the Act. Accordingly there was hardly any scope before 57 the learned Magistrate not to consider the version of the company on the point of complicity of A.B. Sen and to flout the direction given by this Court. The Magistrate was required to dispose of the application dated 28.1.1988, 16.7.1990 and 9.3.2005. Accordingly simply on the ground that company earlier mentioned that R.C. Rastogi was also responsible for the affairs of the company, it was not possible to hold that A.B. Sen was also not responsible for the affairs of the company. Consequently on this ground alone, the order is liable to be quashed. A.B. Sen is responsible for the day to day affairs of the company, accordingly his complicity at the stage of furnishing information cannot be doubted in view of Section 305(5) Cr.P.C. and the Magistrate ought to have proceeded against him as well as against R.C.Rastogi as many persons can be responsible for day today affairs of the Company.
It further transpires that the learned Magistrate took a hyper technical view in the matter that the application at the stage of Section 245(2) Cr.P.C. was not tenable. Section 245(2) Cr.P.C. reproduced as under:-
"Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
It transpires that at any stage the application for discharge can be moved. The application was moved under the direction of this Court, consequently on this ground, it cannot be rejected that after recording the evidence under Section 244 Cr.P.C., the same would be considered and it was premature to pass any order. Thus on this count only, the order of the Magistrate is not sustainable in the eyes of law. The Magistrate is required to pass appropriate order about the complicity of the applicants keeping the provision of Section 47 of the Act in mind. It makes no difference whether the Magistrate is of the view that along with Shri A.B. Sen Shri R.C. Rastogi is also responsible for the conduct of the company, 58 the case can proceed against R.C. Rastogi also, but to hold A.B. Sen not guilty is a blatant error in the eyes of law and Magistrate ought not to have taken into consideration the averment that since R.C. Rastogi was earlier involved in the affairs of the company, accordingly the case against A.B. Sen could not proceed on the assertion of the company appears to be totally contrary in the light of the presumption to be raised in the light of Section 305(5) Cr.P.C as there was no request from the side of the applicants that R.C. Rastogi should be discharged. The learned Magistrate ought to have proceeded against R.C. Rastogi as well as Shri A.B. Sen, but to refuse to proceed against A.B. Sen appears to be an abuse of process of law specially when without any material the resolution of the company on the point of complicity of Shri A.B. Sen was not taken into consideration by the learned Magistrate. The learned Magistrate should not have missed the facts taken into consideration that the Managers are also responsible under Section 47 of the Act. Thus R.C.Rastogi and A.B.Sen both can be responsible for running day today functioning of the Company and may be prosecuted under law by applying Section 47 of the Act. The view of learned Magistrate that the contents of both the applications are contradictory is not sustainable for the reasons that total information can be furnished on behalf of the Company in many parts. Thus the complicity of each and every person has to be seen during the trial and on this count R.C.Rastogi and A.B.Sen cannot be exonerated disbelieving the version of the Company about their complicity in the matter.
I have also mentioned the scope of Section 47 Cr.P.C. and in view of the Full Bench decision of Patna High Court in the case of Mahmud Ali Vs. State of Bihar and another, AIR 1986 Pat. 133 (Supra), involvement of A.B. Sen and R.C.Rastogi in this case constituting the offence has to be construed. Accordingly, the learned trial court should have proceeded against both of them even prior to the recording of evidence under Section 244 Cr.P.C. The application was wrongly rejected on the ground that the same was not signed by the applicants. It 59 transpires that vide order dated 10.4.1987 this Court directed that the applicants may appear before the learned Magistrate through counsel. Consequently, the application could have been moved by the Advocate. There is no legal bar to move the application under Section 305(5) Cr.P.C. read with Section 245(2) Cr.P.C. by any Advocate. There was hardly any occasion for the court below to refuse to proceed against Shri A.B. Sen, only on the ground that the application was not signed by the applicants, on the contrary this Court permitted counsel to move application on behalf of applicants, accordingly the application was rightly moved. Thus, on this count, the application was wrongly rejected.
It is further pertinent to refer that in the impugned order, the Magistrate observed that accused were summoned and accordingly unless they appear before the Magistrate, the application cannot be moved is also in contravention of the order of this Court, wherein the directions were given to the Magistrate to pass appropriate order in accordance with law fixing the responsibility of the persons or person who at the time of occurrence was incharge and was responsible for the company and for the conduct of the company. In view of the direction of this Court, the application ought not have been rejected on the ground that the applicants were not present before the court. Moreover, the learned Magistrate committed error in law by ignoring the earlier order of exemption passed by the Chief Judicial Magistrate on 14.6.1988. The order dated 14.6.1988 is quoted herein below:-
"Case called out, accused Sushil, Gopal, Deepak Ansal, C.L. Anand, C.L. Laxman, T.R. Tuli and V.S. Agarwal are exempted till further order. R.L. Bhargava and O.P. Sharma are absent. Pairokar of the accused is present, fixed 29.7.1988."
Thus, in view of the aforesaid circumstances, once the exemption was granted by the Magistrate, it was not possible that subsequently the order should have been passed insisting that at the time of moving the 60 application, the applicants should be present in the Court contrary to the direction of this Court. Further it appears that the learned revisional court also committed the error in affirming the view of the Magistrate. The view taken by the Sessions Court that the order was not final in nature appears to be in correct as referred to above in view of the provisions of principles of stare decicis coupled with the direction of this Court. The finality has to be attached with the order dated 10.4.1987 passed by this Court and this Court is duty bound to ensure the compliance of the earlier order passed by it. The revision was wrongly dismissed simply on the ground that no finality can be attached is an erroneous proposition of law. It may further be mentioned that Section 245(2) is an independent provision while Section 245(1) is general provision. Section 244 Cr.P.C. speaks about recording of evidence, accordingly in view of Section 245 (2) Cr.P.C., the application can be moved for discharge at any stage and there was no occasion to doubt the correctness of the order passed by this Court instead of raising the technical objections in its implementation. Thus, the view of the learned Magistrate on 23.4.2005 and learned Additional Sessions Judge dated 15.5.2007 dismissing the revision appear to be not in accordance with law. Thus, to prevent the abuse of process of law and also to secure the ends of justice and ensure the compliance of the order dated 10.4.1987, which is a final order, it is incumbent upon the Court to quash the order dated 23.4.2005 and 15.5.2007 by exercising the power under Section 482 Cr.P.C.
To avoid the technicalities in the matter it may further be necessary to observe that in view of order dated 10.4.1987, responsibility for the conduct of the affairs of the company comes within the ambit of Section 47 Cr.P.C. and responsible persons can be prosecuted. The Magistrate has to pass appropriate order on the application of the applicants fixing their liability. If they are not liable then they may be discharged at the stage of Section 245 (2) Cr.P.C. even without recording the statement under Section 244 Cr.P.C. Further it will be open before the trial court to proceed against the applicants also in case, if their liability is fixed in 61 view of provisions of section 47 Cr.P.C., but under no event the Magistrate can refuse to proceed against A.B. Sen also contrary to resolution of the company simply because of the fact that in the application dated 16.7.1990 reference of R.C. Rastogi, the then General Manager was made. The Magistrate can also proceed against R.C. Rastogi as the circumstances do warrant to proceed against him. It may further be necessary to point out that it is not mandatory that the Advocate should have moved the application after obtaining the signature of Shri A.B. Diwedi as it was directed by this Court that the application should be moved before the court below through counsel.. The lawyer alone has to move application on behalf of the applicants for discharge. Accordingly, the averment made in the application dated 9.3.2005 is not defective and there is no necessity to issue any direction to the applicants to move any application afresh. However, in case any clarification is required, the Magistrate may obtain information for the disposal of the application from the applicants through counsel without recalling the order dated 14.6.1988, which is in consonance of the order passed by this Court. Thus the order dated 14.6.1988 is still in force granting exemption, is not liable to be recalled by the court below and thus without insisting the personal appearance of the applicants as per order passed by this Court, the application has to be decided.
Further at this stage, it may be clarified that observations made in the judgment are only to the extent to the disposal of the petition under Section 482 Cr.P.C. and this Court has not entered into the merits of the present case. The trial court without being influenced by any of the observations made in the judgment, shall exercise its unfettered discretion on the basis of the record and proceed in accordance with law and pass appropriate orders in accordance with the direction dated 10.4.1987 of this Court on the application of the applicants for their discharge fixing the liability of the persons under Section 47 of the Act.
Thus, the impugned orders dated 23.4.2005 passed by the Special Judicial Magistrate and order dated 15.5.2007 passed by the Additional 62 Sessions Judge in criminal case no. 126 of 2005 are not tenable in the eyes of law and are liable to be quashed.
On behalf of the applicants it has been urged that the order dated 1.4.2005 issuing process u/s 82 Cr.P.C. is liable to be quashed as the Magistrate has overlooked the provisions of law and proceeded in an arbitrary manner.
Learned counsel for the applicants has pointed out that in the application at para-11 it was mentioned that after the dismissal of the revision application, proceedings before Special Magistrate were resumed and the learned Magistrate issued summons by order dated 1.10.2004 fixing 27.10.2004. On 27.10.2004 the summons was not received/served upon the applicants and without considering this aspect of the service the learned Magistrate proceeded to issue Non- Bailable warrants on the same day which was wholly arbitrary, illegal and unjustified. The attention of this Court was also drawn to the fact that earlier on 14.6.1988 the learned Magistrate exempted the appearance of the applicants till further orders. The order dated 14.06.1988 was not recalled. It was still operative. It was not possible for the Magistrate to issue notice and Non Bailable Warrant against the applicants. It is apparent that facts of paras 11 and 12 of the petition have not been disputed in the counter affidavit. It further transpires that on 1.4.2005 the case was called out. On behalf of the company Sri A.P.Dwivedi was present. Rest of the accused were absent. An application on behalf of the accused was moved on the ground of illness of Sri Satyendra Singh Advocate through his Junior. The Magistrate without assigning any reason and rejecting the application for adjournment issued Non Bailable Warrant against the petitioners and decided to proceed against the applicants under the provisions of Section 82 Cr.P.C. It transpires from the order sheet that the Non Bailable Warrants earlier issued were not executed and the report of the executing officer was not available on record. Accordingly process u/s 82 Cr.P.C. under the law could not be issued and the Magistrate 63 committed error in law, especially ignoring the fact that earlier order dated 14.6.1988 of exemption was not recalled or vacated.
Thus in view of un-controverted facts it transpires that even after exemption granted to the applicants the Magistrate further issued summons on 01.10.2004 fixing 27.10.2004. On 27.10.2004 the summons were not received/served upon the applicants.
In this context provisions as contained in Chapter VI-A of the Code of Criminal Procedure reveal that how the process to compel the appearance has to be issued. The process to compel the appearance is dealt with here;
(1) Summons u/s 61 Cr.P.C.(2) Warrant u/s 70 If through summons the Court has failed to secure attendance, it is open to the Court or Magistrate to issue a warrant after recording the reasons in writing u/s 87 Cr.P.C. In cases where a warrant fails to take effect the procedure of proclamation as absconder u/s 82 is to be taken and if the absconder is not forthcoming, his property is attached and sold u/s 83/85 Cr.P.C. One more method of securing attendance is the taking of bond with or without sureties u/s 88.
It is not disputed that u/s 61 Cr.P.C. the summons were issued. The summons were not served u/s 62 Cr.P.C. They were also not received after service on applicants. Consequently in this case the summons were not served. Thus in this case there is no service of summons under law. The Magistrate in case was of the view that personal service as provided u/s 62 cannot be effected the law allows service on some adult member of the family. There is no material to show that the persons summoned against was not found by exercise of due diligence and the summons were served on any of the family members in view of the provisions of Section 64 Cr.P.C. Thus instead of proceeding u/s 64 Cr.P.C. that too was not possible at the first stage the Magistrate ought not to have issued warrants u/s 70 Cr.P.C. on 27.10.2004. It further transpires that even the warrants was not served and the process u/s 82 Cr.P.C. was issued on 1.4.2005. The Magistrate 64 has also not rejected the application for adjournment of the counsel. The application was moved on the ground of illness. Further it appears that the order dated 1.4.2005 suffers from illegality that the Magistrate has not referred the reason for his satisfaction to issue process u/s 82 Cr.P.C.
In view of the circumstances referred to above it transpires that the Magistrate has neither adopted the procedure in accordance with law in issuing the warrants against the applicants but also committed error in law by issuing orders u/s 82 Cr.P.C. ignoring the provisions referred to above. In this context the view taken by this Court in 1994 CriLJ 1783, Devendra Singh Negi alias Debu Versus State of U.P. and another, is crystal clear. Para-14 is relevant which reads as under;
"The words, "has absconded or is concealing himself so that such warrant cannot be executed" in Section 82 of the Code are significant. Every person who is not immediately available cannot be characterised as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions of Section 82 are mandatory and are to be construed strictly. Section 82 requires that the court must, in the first instance, issue a warrant and it must put down its reasons for behaving that the accused is absconding or concealing himself. My view expressed above is supported by a Division Bench case of Dip Narain Singh V.State of Bihar, 1981 Cri LJ 1672 (Patna). Thus, in every case where the warrant is not executed, resort cannot be had to Section 82 and it may be necessary to examine the officer concerned who had gone to execute the warrant and to the measures adopted by him to serve the same."
It further transpires that 2007 Cri.LJ 3113, Abdul Rahman and another Vs. State of Rajasthan, further deals with a problem wherein Rajasthan High Court took a view that before declaring the 65 accused as absconder the Court has to be satisfied that accused had left his permanent residence or he is avoiding service or there is no chance of arrest in near future. Para-6 of the same is quoted below;
"It is settled proposition of law that before declaring the accused as absconder, the Court has to be satisfied that accused had left their permanent residence or they are avoiding service or there is no chance of arrest in near future."
After going through the record it transpires that without service of summons the Non Bailable Warrants were issued and without recording the satisfaction the process u/s 82 Cr.P.C. were issued. Thus the procedure as adopted by the Magistrate is not in accordance with the procedure provided in Cr.P.C.
Thus on the face of it the impugned orders of issuing Non Bailable warrants against the applicants on 27.10.2004 and the order dated 1.4.2005 were not passed in accordance with law, therefore, they are liable to be quashed. It further transpires that the Magistrate should have disposed of the application for adjournment moved by the counsel on the ground of illness, rather he should have accommodated him. No order ought to have been passed on the application in absence of the counsel. This practice is not correct. The application ought to have been decided.
Since the order dated 1.4.2005 is erroneous accordingly I do not consider it appropriate to direct the Magistrate to pass any order on the application for adjournment as the matter is already over. Accordingly the orders dated 27.10.2004 and 1.4.2005 are hereby quashed.
The learned Magistrate shall take into consideration this fact that earlier on 14.06.1988 the court exempted the attendance of the applicants. The order is still operative and it has not been vacated, as such in view of directions of this Court dated 10.4.1987 the applicants may appear before the learned Magistrate through counsel, accordingly the orders dated 23.4.2005 and 15.5.2007, passed by the Special Judicial Magistrate Pollution, Lucknow, annexures 10 and 11 are hereby quashed. Further the orders dated 27.10.2004 and 1.4.2005 66 are also quashed. The prayers for quashing the proceedings in Criminal Case No.13 and 14 of 1993, pending in the court of Special Judicial Magistrate (Pollution), Lucknow are refused. However it is provided that the Magistrate shall proceed in accordance with the directions given by this Court on 10.04.1987 and further decide the application fixing the liability of applicants who at the time of occurrence were incharge and responsible for the conduct of the company u/s 47 of the Act or not and dispose of the pending applications dated 28.1.1988,16.7.1990 and 09.03.2005 in accordance with law. The applicants shall be allowed to appear through counsel before the court concerned in view of the observations and reasons referred to above.
Ordered accordingly.
06 .07.2010 Irfan/-