P.PRAMILA & ORS. Vs. STATE OF KARNATAKA & ANR
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 482 - Saving of inherent powers of High Court
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 152 of 2012, Judgment Date: Apr 09, 2015
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 152 OF 2012
P. Pramila and others ..Appellants
versus
State of Karnataka and another ..Respondents
WITH
CRIMINAL APPEAL NO. 153 OF 2012
CRIMINAL APPEAL NO. 154 OF 2012
CRIMINAL APPEAL NO. 155 OF 2012
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
The appellants, while being engaged in the business of stocking
iron ore, had allegedly violated certain norms prescribed by the Deputy
Commissioner under Section 22 of the Air (Prevention and Control of
Pollution) Act, 1981 (hereinafter referred to as the 'Air Act'). The
allegation against the appellants was, that they had illegally established
iron ore stack yard(s) at various places in Uttara Kannada District. It
was alleged, that the appellants had not made provisions for pollution
control measures, despite repeated requests and instructions given to them,
by the officials of the Karnata State Pollution Control Board (hereinafter
referred to as the 'Board'). It was therefore, that CC No.546/2006, CC
No.547/2006, CC No.548/2006 and CC No.549/2006 were filed before the
Judicial Magistrate, First Class-II, Karwar. The proceedings against the
appellants were sought to be challenged by petitions filed under Section
482 of the Code of Criminal Procedure, wherein the appellants prayed for
quashing of the above proceedings.
A number of similar criminal petitions, filed by the appellants
and others, were sought to be disposed of by the High Court of Karnataka,
Circuit Bench at Dharwad (hereinafter referred to as the 'High Court'), by
a common order dated 7.1.2009. The above order dated 7.1.2009, is subject
to challenge in these appeals. A perusal of the impugned order reveals,
that the High Court did not examine the merits of the controversy. To
dispose of the merits of the claim raised by the appellants before the High
Court, it relied upon an earlier order passed by the High Court on
17.04.2007, disposing of Criminal Petition No. 4760 of 2006. Based
thereon, the challenge raised by the appellants before this Court, was also
sought to be rejected. The factual position indicated hereinabove is
apparent from paragraphs 3 to 5 of the impugned order, which are being
extracted hereunder:
"3. The allegations against the respective petitioner is that, while
being engaged in the business of stocking iron ore, the petitioners have
violated the norms prescribed by the Deputy Commissioner and thus offence
un/s 22 of the Pollution Control Act, has been committed and the further
allegation in the complaint is that the petitioners have illegally
established and operating iron ore stack yard at various places in Uttara
Kannada District without the previous consent of the Karnataka State
Pollution Control Board (for short, 'the Board') and that the accused
petitioners have not provided any pollution control measures despite
repeated requests and instruction given to them by the officials of the
Board. Based on the complaint lodged by the Board, learned Magistrate of
the trial Court directed issuance of process against the petitioners. It is
this order of the trial Court that is called in question in all these
petitions.
4. At the outset, learned counsel for the respondents submitted that the
present petitions are liable to be dismissed as all the grounds urged in
the present petitions by each one of the petitioner have been considered by
this Court in a batch of petitions which were disposed of on 17.4.2007 in
Crl. Petition No. 4760/06 and connected petitions. Therefore, the present
petitions are also liable to be dismissed following the aforesaid order of
this Court.
5. Learned counsel appearing for the respective petitioner have not
disputed the fact of this court having already dismissed the other
petitions filed by the petitioners which are similarly placed and all the
contentions which are urged in the present petitions have been considered
by the learned single Judge while dismissing batch of petitions on
17.4.2007."
During the course of hearing, learned counsel for the
appellants invited our attention to the fact, that cognizance of an offence
could be taken only by the Board or an officer authorised by the Board, in
terms of Section 43 of the Air Act. Section 43 afore-mentioned, was the
primary basis of the challenge raised before us. The same is being
reproduced hereunder:
"43. Cognizance of offences - (1) No court shall take cognizance of any
offence under this Act except on a complaint made by -
(a) a Board or any officer authorised in this behalf by it; or
(b) any person who has given notice of not less than sixty days, in the
manner prescribed, of the alleged offence and of his intention to make a
complaint to the Board or officer authorised as aforesaid,
and no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under this
Act.
(2) Where a complaint has been made under clause (b) of sub-section (1),
the Board shall, on demand by such person, make available the relevant
reports in its possession to that person:
Provided that the Board may refuse to make any such report available to
such person if the same is, in its opinion, against the public interest."
Our attention has been pointedly invited to sub-section (1) of
Section 43 of the Air Act. Having perused the same, there cannot be any
doubt, that when the authorities decided to initiate proceedings under the
provisions of the Air Act, the complaint could have been made either by the
Board or by an officer authorised by the Board. The question which has to
be adjudicated upon (as has been raised by the appellants), was whether,
the complaint in furtherance of which CC No. 546/2006, CC No.547/2006, CC
No.548/2006 and CC No.549/2006, had been filed by the Board, or an officer
authorised by the Board. To be valid, in terms of the mandate of Section
43(1) of the Air Act, it ought to be filed either by the Board or by an
officer authorised by the Board.
Insofar as the above mentioned aspect of the matter is
concerned, it is not a matter of dispute, that vide notification/resolution
dated 29.3.1989, the Karnataka State Pollution Control Board delegated
certain powers to the Chairman of the Board. The aforesaid resolution
(limited to the instant issue), is being reproduced below:
"subject : Delegation/Empowering of Technical,
No.63.11 Administrative and Finalcial Powers to
Chairman, Member Secretary and Other
Officers working in the Board.
The subject of Delegation of Power to the Chairman was also discussed,
while subject No.10 was being discussed. After detailed discussion, the
Board decided to delegate its power and functions to the Chairman of the
Board in terms of Section 11A of the Water(Prevention and Control of
Pollution)Act, 1978 (Amended) and Section 15 of Air (Prevention and Control
of Pollution) Act, 1981 under the following circumstances:
a) In respect of industries who are discharging their effluent without a
valid consent under Section 25/26 of the Water (Prevention and Control of
Pollution) Act, 1974 and under Section 23 of the Air (Prevention and
Control of Pollution) Act, 1981, the Chairman is authorized to initiate
legal action under relevant sections.
b) In respect of Industries against whom orders passed by the Chairman
under Section 32(1)(c) of the Water (Prevention and Control of Pollution)
Act, 1974 and under Section 23 of the Air (Prevention and Control of
Pollution) Act, 1981 and if such Units have not complied with the
directions issued, the Chairman of the Board is authorized to initiate
legal action for violating the direction issued under Section 32(1)(c)
under Water Act and Section 23 of the Air Act, under relevant penal
provision of the respective Acts.
The Legal Action initiated in terms of above delegation of powers, the
Board shall be kept informed at the next immediate meeting."
The Board could delegate the above power to the Chairman of the Board,
because Section 43(1) of the Air Act, allowed it to do so. In view of the
conclusions recorded above, consequent upon the passing of the resolution
dated 29.3.1989, the complaint under Section 43(1) of the Air Act, could
have been filed either by the Board or by its Chairman.
According to the learned counsel for the respondents,
proceedings came to be initiated by an order dated 4.4.2006 passed by the
Chairman of the Karnataka State Pollution Control Board. Relevant extract
of the above order is reproduced below:
"In view of the above, I do here by authorize the Regional Officer, Karwar
to initiate criminal action under Section 37 of Air (Prevention and Control
of Pollution) Act, 1981 by filing criminal case in the competent court
against 17 occupiers of the Iron Ore Stack Yards located in and around the
Karwar, Ankola and Jolda Taluks of Uttara Kannada District as per the list
enclosed as Annexure-1."
Having perused the aforesaid communication it emerges, that the Chairman of
the Board authorised the Regional Office, Karwar to initiate criminal
action under Section 37 of the Air Act, by filing criminal cases in Courts
having jurisdiction to deal with them, against 17 owners of iron ore stack
yards, located in and around the Karwar, Ankola and Jolda Taluks of Uttara
Kannada District. It is not possible to accept, the contention of the
respondents, that initiation of the proceedings on the basis of the above
order dated 4.4.2006 can be treated as compliance of the mandate contained
in Section 43(1) of the Air Act, because the same has reference to a
complaint made by the "Board or any officer authorised in this behalf by
it".
In compliance with the order of the Chairman dated 4.4.2006,
the Regional Officer(Deputy Environmental Officer Sri Gopalakrishna B.
Sanatangi, filed complaints before the Judicial Magistrate, First Class-II,
Karwar. It is natural therefore to conclude, that the complaint against
the appellants was neither filed by the Board or its Chairman, but was
filed by the Regional Officer (Deputy Environmental Officer).
Section 43 of the Air Act has already been extracted
hereinabove. It is apparent therefrom, that Courts would take cognizance
of complaints filed by the Board, or any officer authorised by the Board,
in that behalf. The notification/resolution dated 29.3.1989 indicates, that
the officer authorised was the Chairman of the Board. The Board could
delegate the above power to the Chairman of the Board, because Section
43(1) of the Air Act, authorised the Board to do so. In that view of the
matter, either the Board or the Chairman of the Board could have filed the
complaints in terms of the mandate contained in Section 43(1) of the Air
Act. The power to file the complaint could not be exercised by any other
authority/officer. Under the principle of 'delegatus not potest delegare',
the delegatee (the Chairman of the Board) could not have further delegated
the authority vested in him, except by a clear mandate of law. Section 43
of the Air Act vested the authority, to file complaints with the Board.
Section 43 afore-mentioned, also authorised the Board to delegate the above
authority to any "officer authorised in this behalf by it". The "officer
authorised in this behalf" was not authorised by the provisions of Section
43 of the Air Act, or by any other provision thereof, to further delegate,
the authority to file complaints. The Chairman of the Board, therefore, had
no authority to delegate the power to file complaints, to any other
authority, for taking cognizance of offences under the Air Act. It is
apparent, that the determination to initiate action against the appellants,
and other similarly placed persons, against whom action was proposed to be
taken, by the Chairman of the Board, vide his order dated 4.4.2006, was not
in consonance with law. Annexure P-11, appended to Criminal Appeal No.
152/2012 reveals, that the complaint was filed, and the proceedings were
initiated before the Judicial Magistrate, First Class-II, Karwar, by the
Regional Officer(Deputy Environmental Officer) Sri Gopalakrishna B.
Sanatangi, in his capacity as a complainant. The Regional Officer(Deputy
Environmental Officer) Sri Gopalakrishna B. Sanatangi, had no jurisdiction
to prefer such complaints. Accordingly, we are of the view, that the afore-
stated complaints dated 28.04.2006 are liable to be set aside, on the
instant technical ground itself. Ordered accordingly.
Since the petitions filed by the appellants, under Section 482
of the Criminal Procedure Code, are being accepted merely on a technical
ground, we hereby direct the competent authority, namely, the Board (or the
Chairman of the Board) to re-initiate the above proceedings, in consonance
with the provisions of Section 43(1) of the Air Act. The process shall
positively be re-initiated within two months from today. In case of
failure to initiate fresh proceedings within the time stipulated
hereinabove, it shall be imperative for the competent authority, to place
the reasons for not doing so before this Court, on the expiry of a period
of two months. Extension of time, if needed, shall also be sought by the
authorities from this Court, by moving an appropriate interlocutory
application. Needless to mention, that on re-initiation of the
proceedings, the concerned authorities, and the Courts below, shall not
take into consideration any observations recorded by us, or the Courts
below, while adjudicating upon the merits of instant controversy. It shall
be open to the parties to raise all contentions, as may be available to
them, in consonance with law.
The instant appeals are allowed in the aforesaid terms.
.......................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; .......................J.
APRIL 09, 2015. [S.A. BOBDE]
ITEM NO.105 COURT NO.4 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 152/2012
P.PRAMILA & ORS. Appellant(s)
VERSUS
STATE OF KARNATAKA & ANR Respondent(s)
(with appln. (s) for directions and stay)
WITH Crl.A. No. 153/2012
Crl.A. No. 154/2012
Crl.A. No. 155/2012
Date : 09/04/2015 These appeals were called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE S.A. BOBDE
For Appellant(s) Mr. K.K. Venugopal, Sr. Adv.
In AR 152/2012 Mr. Anish Dayal, Adv.
Mr. Siddharth Vaid, Adv.
Mr. Ishwar Mohanty, Adv.
Ms. Anjali, Adv.
for Ms. Jyoti Mendiratta,AOR
For Appellant(s) Mr. T.S. Doabia, Sr. Adv.
In other appeals Mr. Sharan Thakur, Adv.
Mr. Murthy Nair, Adv.
Mr. Vijay Kumar, Adv.
for Dr. Sushil Balwada,AOR
For Respondent(s) Mr. Purushottam Sharma Tripathi,Adv.
Mr. S.J. Amith, Adv.
Mr. R.C. Prakash, Adv.
Mr. Ashok, Adv.
Mr. Mukesh Kr. Singh, Adv.
Ms. Anitha Shenoy,Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeals are allowed in terms of the signed judgment.
(Parveen Kr. Chawla) (Renu Diwan)
Court Master Court Master
[signed Judgment is placed on the file]
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