East India Cotton Co. vs Har.State Board for Prevention & Control

Harphul Singh Brar, J.

The Haryana State Board for the Prevention and Control of Water Pollution, Kothi No. 66, Sector 8B, Chandigarh (hereinafter called the Water Pollution Board) constituted under Section 4(1) of the Water (Prevention and Control of Pollution) Act, 1974 (for short, the Act), filed a complaint under Sections 43 and 44 of the Act through its Assistant Environmental Engineer, against the petitionerCompany and its Managing Director, Shri N.P. Garodia and another person Shri U.M. Jain, General Manager of the said Company.

It is alleged in the complaint that the accused during the course of their business have brought into use and outlet for the discharge of the trade effluent which contains various chemicals like PH suspended solids, amonical nitrogen, oil, grease, sulphate, BOD and COD etc. The effluent contains these chemicals which are injurious for water and change its characteristics physically, chemically and biologically as well, thus, causing water pollution. The accused are discharging the light brown trade effluent nearly two lakh litres per day which is completely untreated and contains suspended solids including other chemicals. The accused are making the discharge of the offluent into open drain which ultimately, through DGachi drains, joins river Jamuna.

It is then alleged in the complaint that as per section 25 of the Act, the accused ought to have obtained the consent of the Water Pollution Board for discharging the trade of effluent from their premises. It is alleged that the accused have intentionally violated the provisions of Sections 24, 25 and 26 of the Act.

It is further alleged in the complaint that on the application moved by the accused, they were granted a consent order vide order, dated October 14, 1977, which inter se has become final and binding on the accused. The accused have violated the conditions of the consent order in as much as neither the effluent standard has been brought within the tolerance limits nor the renewal of the consent has been obtained and they have violated the provisions of Section 25(4) of the Act. The accused are intentionally and knowingly causing the pollution of water by discharging the trade effluent from their premises in the open drain. The untreated effluent beyond the tolerance limits as prescribed by the Water Pollution Board would render the water unfit for human consumption and would cause a very serious problem of water pollution.

It is also alleged in the complaint that the sample of the trade effluent that is being discharged by the accused from their premises was taken as per the requirement of law and was sent to the Water Pollution Board''s Analyst for analysis. On receipt of the Analyst''s report, it was clear that the effluent that the caused were discharging in the open drain was not within the prescribed ISI standard. All the parameters were in excess and in violating of standard prescribed by the Water Pollution Board i.e. ISI standard. The original copy of the Water Pollution Board''s Analyst''s report was also filed along with the documents.

Later on, the name of Shri U.M. Jain was dropped from the array of accused in the wake of statement made on behalf of the complainant on September 13, 1985. Thus, the prosecution continued only against the Company and its Managing Director, Shri N.P. Garodia.

After analysing the precharge evidence adduced by the complainant, the learned Chief Judicial Magistrate vide his detailed order, dated January 30, 1987, came to the prima facie conclusion that the petitionerCompany and its Managing Director N.P. Garodia had committed an offence under Sections 43 and 44 of the Act. Both of them were directed to be chargesheeted accordingly.

Before the charge in term of the order, dated January 30, 1987 of the learned Chief Judicial Magistrate was actually framed against these accused, they went in Revision. The revision petition was heard by the learned Additional Sessions Judge, Faridabad. The various issues raised by the learned counsel for the petitioners against the order of the Chief Judicial Magistrate were considered by the learned Additional Sessions Judge, who after discussing them in detail, dismissed the revision petition vide a well reasoned judgment.

It is against the order, that January 30, 1987 of the Chief Judicial Magistrate, and judgment dated June 9, 1980 of the Additional Sessions Judge, Faridabad, respectively that this petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioners.

I have heard the learned counsel for the parties and am unable to interfere with the order/judgment of the Courts below. The first hurdle which is difficult for the learned counsel for the petitioners to overcome is the bar of Section 397(3) of the Code of Criminal Procedure, which reads as under:

"397. Calling for records to exercise of powers of revisions.

(1)

(2)

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

The petitioners in this case have already availed the remedy of Revision before the Sessions Court and the Additional Sessions Judge vide his elaborate judgment has dismissed their Revision Petition. Thus, the second Revision Petition cannot lie under the garb of an application under Section 482 of the Code of Criminal Procedure under the inherent powers of this Court. It has been so held by various authorities of this Court as well as the Supreme Court that the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure cannot be invoked to entertain a second Revision Petition. The inherent powers under Section 482 of the Code cannot be justified for exercising powers which are expressly barred by the Code. If at all an authority is needed, reference in this behalf may be made to Dharampal and others v. Smt. Ramshri and others, 1993(1) Recent Criminal Reports 696 : JT 1993(1) SC 61 and Radhey Shyam Khemka and another v. State of Bihar, JT 1993(2) SC 523.

Moreover, it is not such a case that by merely reading the allegations made in the complaint one can reach a conclusion that the allegation made in the complaint would constitute no offence at all. Both the Courts below have reached a conclusion on scanning the facts of the case and on going through the precharge evidence that a prima facie case under Sections 43 and 44 of the Act is made out against the petitioners. I would even go to the extent of saying that material on record capable of inferring strong suspicion about the commission of offence is sufficient for framing the charge. Reference in this connection may usefully be made to Supdt. A Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, AIR 1980 SC 52.

In view of my detailed reasons stated above, I do not find any fault with the order/judgment of both the Courts below. This petition is, thus dismissed without having any merit.