Hindustan Copper Limited vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with the prayer to quash the order dated 20.10.2020 passed by learned Additional Chief Judicial Magistrate, Ghatsila in connection with Complaint Case no. 271 of 2020 whereby learned Additional Chief Judicial Magistrate, Ghatsila has taken cognizance for the offence punishable under Section 15 of the Environment (Protection) Act,  1986, inter  alia against the petitioner and passed the summoning order.

The brief fact of the case is that the petitioner M/s Hindustan Copper Limited, Surda Mines, was involved in the said mine, producing the copper ores, during the year 1992-93 to 2018-19 without obtaining  Environmental  Clearance  from  the  Ministry  of  Environment and Forest, Government of India, in contravention to the provisions of the Environment (Protection) Act, 1986.

Learned counsel for the petitioner draws the attention of this Court towards Section 19 of the Environment (Protection) Act, 1986 which reads as under:-

“19. Cognizance of offences.—No court shall take cognizance of any offence under this Act except on a complaint madeby—

(a) the Central Government or any authority or officer authorised in this behalf by that Government; or

[(aa) adjudicating officer or any officer authorised by him in this behalf;] (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.”

and  submits  that  since  the  complaint  has  not  been  made  by  the Central Government or any authority or officer authorized in this behalf,  by the Central  Government,  hence, the complaint  is not  valid and, therefore, not sustainable in law. It is further submitted by learned counsel  for the  petitioner that  the  petitioner was  having the  necessary permission for the entire period, when the offence alleged to have been committed.

Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of P. Pramila & Others. vs. State of Karnataka & Another reported in (2015) 17 SCC 651 wherein  in  the  facts  of  that  case, which relates  to  prosecution  for  the penalty  for  contravention  of  the  Section  22  of  the  Air  (Prevention  and Control of Pollution) Act, 1981 and Section 43 of the Air (Prevention and Control of Pollution) Act, 1981 and the Air (Prevention and Control of  Pollution)  Act,  1981  envisage  that  no  court  shall  take  cognizance  of any offence under the said Act except on a  complaint made by a  Board or any officer  authorized in this behalf by it and as in the facts of that case, there was a notification/resolution dated 29.03.1989 which indicated  that  the  officer  authorized  as  mentioned  in  Section  43  (1)  (a) was the  Chairman  of  the  Board,  but  the  complaint  was  filed  and  the proceedings  were initiated  before learned  Judicial  Magistrate-1st Class, by  the  Regional  Officer,  in  his  capacity  as  a complainant,  the  Hon’ble Supreme Court of India, has held that the Regional Officer had no jurisdiction to file such complaint, as Section 43 of the Air (Prevention and Control of Pollution) Act, 1981, vested the authority, to file complaints with the Board, and the said Section 43 also authorized the Board to delegate the above authority to any “officer authorized by it in this behalf” and thus  “the officer authorized in this behalf”  was not authorized as per the provisions of Section 43 of the Air (Prevention and Control of Pollution) Act, 1981 or by any other provision thereof, to further  delegate  the  authority  to  file  complaints.  Hence,  the  Chairman of the Board being himself delegated the power as the “officer authorised”, therefore, the Chairman of the Board, had no authority to further delegate the power to file complaints, to any other authority, to enable the court  concerned  to  take  cognizance of  offences punishable under the penal provisions of the Air (Prevention and Control of Pollution) Act, 1981. It is then submitted that this case having been filed by the Regional Officer of Jharkhand State Pollution Control Board, Jamshedpur, on the basis of the invalid delegated power, as the power has been delegated to him by the Chairman of the Board, who himself having being delegated the power and thus, was not further entitled to delegate his delegated power, hence, the institution of the complaint was withoutjurisdiction.

Learned counsel for the petitioner further draws the attention of this Court  towards  Annexure-1 of the complaint, which is the letter of the Member Secretary, Jharkhand State Pollution Control Board, directing the Regional Officer to file the complaint, and submits that the same cannot be termed as the direction of Jharkhand State Pollution Control  Board,  in  the  absence  of  any  resolution  passed  by  Jharkhand State Pollution Control Board. Hence, it is submitted that the order dated 20.10.2020 passed by learned Additional Chief Judicial Magistrate, Ghatsila in connection with Complaint Case no. 271 of 2020 be quashed and set aside.

Learned AC to SC IV appearing for the State and the learned counsel  for  the  opposite  party  No.  2 draw  the  attention  of  this  Court towards the notification published in the Gazette of India, Extraordinary, dated 14.03.2017 of the Ministry of Environment, Forest And Climate Change Notification, New Delhi and submit that the Clause 13 (3) of the said Notificationwhich reads as under:-

“(13)xxxxxxx

(3) In cases of violation, action will be taken against the project proponent by the respective State or State Pollution Control Board under the provisions of section 19 of the Environment (Protection) Act, 1986 and further, no consent to operate or occupancy certificate will be issued till the project is granted the environmental clearance”

is  the  relevant  provision  by  which  the  Central  Government  has authorized Jharkhand State Pollution Control Board under Section 19 of the Environment (Protection) Act, 1986 to file complaint and as the complaint has been filed on behalf of Jharkhand State Pollution Control Board  and  the  same has  been  expressly  mentioned  in  paragraph-2  of the complaint that the complaint has been filed on behalf of Jharkhand State Pollution Control Board; therefore, merely because there is no reference of any resolution of the Board in the communication made to the complainant, by  the Member  Secretary, though  it has categorically been mentioned therein that the draft of filing the case, has been approved  by  Jharkhand  State  Pollution  Control  Board; at  this  nascent stage, for non-production of a document to satisfy the petitioner- accused person of this case, that in fact, Jharkhand State Pollution Control  Board,  has  made  the  complaint,  is  not  a ground  to  quash  the entire criminal proceeding.

Learned counsel for the opposite party No.2 draws the attention of  this  Court  to  Section  15  of  the  Environment  (Protection)  Act,  1986, which reads as under :-

[15. Penalty for contravention of provisions of Act, rules, orders and directions.—(1) Where any person contravenes or does not comply with any of the provisions of this Act or the rules made or orders or directions issued thereunder for which no penalty is provided, he shall be liable to penalty in respect of each such contravention which shall not be  less  than  ten  thousand  rupees  but  which  may  extend  to  fifteen  lakh rupees.

(2) Where any person continues contravention under sub-section (1),  he  shall  be  liable to  additional  penalty of  ten  thousand  rupees  for every day during which such contravention continues.

and submits that as has categorically been mentioned in the complaint that the petitioner being M/s. Hindustan Copper Limited having carried out mining operations of copper ores at Surda Mines without prior Environmental clearance, is guilty of the offence punishable under Section 15 the Environment (Protection) Act, 1986. It is then submitted that there is absolutely no illegality in the complaint; therefore, this Criminal Miscellaneous Petition, being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully  going  through  the  materials  available  in  the  record,  so  far  as the contention of the learned counsel for the petitioner that the complaint has been filed by a person, without authorityis concerned, in the  considered  opinion  of  this  Court,  the  facts  of  this  case  is  different from the facts of the case of P. Pramila & Others. vs. State of Karnataka & Another (supra). The reason being in the case of P. Pramila & Others. vs. State of Karnataka & Another (supra), under section 43 of the Air (Prevention and Control of Pollution) Act, 1981, there was a delegation to the Chairman of the Board and the Officer authorized in this behalf  by the Board,  was the Chairman  of  the Board.  But  in this case, as per notification of the Ministry of Environment, Forest and Climate  Change,  dated  14.03.2017,  S.O.  804  (E)  Clause  13  (3) inter  alia Jharkhand State Pollution Control Board, has been authorized under Section 19 of the Environment (Protection) Act, 1986 to take action against project proponent, if they violate the provision of the Environment (Protection) Act, 1986. Unlike, in the case of P. Pramila & Others. vs. State of Karnataka & Another (supra), in this case there is no delegation to any officer of Jharkhand State Pollution Control Board. Obviously,  Jharkhand  State  Pollution  Control  Board  having no  hands and legs of its own, it has to act through any of its officer. The Annexure 1 to the complaint shows that the Member Secretary, obviously, on behalf of the State Pollution Control Board, has directed the complainant to initiate the proceeding by filingthe compliant. True it is, there is no reference of any resolution of the Board, in Annexure 1 to the complaint but Section 5 (2) (f) of Air (Prevention and Control of Pollution) Act, 1981, itself envisages that the Member Secretary of Jharkhand State Pollution Control Board, is a full time Member Secretary, and he is also a member of the Board. At this stage, when the full time Member Secretary, being a member of Jharkhand State Pollution Control Board, on behalf of the Board has directed the complainant being the Regional Officer of Jharkhand State Pollution Control Board, to initiate and institute the complaint after the draft was received by Jharkhand State Pollution Control Board merely because there is no reference of the resolution of the Board, in such communication, in the considered opinion of this Court, the  same will be a too technical a view to quash the entire criminal proceeding at this nascent stage. It is not a case that there is any delegation of the authority concerned to someone else, as was in the case of P. Pramila & Others. vs. State of Karnataka & Another (supra), where the Chairman of the Board who himself was delegated to power again delegated the power to the Regional Officer without any statutory sanction. But in this case, unlike the case of P. Pramila & Others. vs. State of Karnataka & Another (supra), no delegation of power was ever made to any particular officer of Jharkhand State  Pollution Control Board. So,  this Court is of the considered view that this is not a case of absence of authority  for  the  complaint  filed  by  the  complainant  rather  it  is  a  case where relevant materials could not be produced by the complainant to prove it beyond reasonable doubt that he  was authorized on  behalf of Jharkhand State Pollution Control Board to file complaint though there is specific averment that the complaint is filed on behalf of the Jharkhand State Pollution Control Board. Hence, in the considered opinion of this Court, keeping in view the settled principle of law that a legitimate prosecution ought not be stifled by the High Court in exercise of power  vested upon  it  under  Section  482  of Cr.P.C  and that the petitioner can take such plea during the trial of the case as his defence, this Court is of the considered view that certainly this is not a case where the entire criminal proceeding is to be quashed.

So far as the contention of the petitioner that the petitioner- company was granted consent to operate orders by the Bihar State Pollution Control Board and upon reorganization of the State of Jharkhand  by  the  Jharkhand  State  Pollution  Control  Board  on  regular basis is concerned, the same is a defence of the petitioner but in view of the specific averment in the complaint that the petitioner was carrying out mining operation of proper course withoutenvironmental clearance in violence of the provisions of Environment Protection Act, 1986 and in view of the settled principle of law that High Court, exercising the power under Section 482 of Cr.P.C., is not to enter into a roving enquiry to ascertain the veracity of the defence of the accused person, to quash a criminal  proceeding,  this  Court  is  of  the  considered  view  that  on  this ground, the prayer of the petitioner to quash the entire criminal proceeding, is not fit to be allowed as the petitioner can take that plea during trial of the case.

In view of the discussions made above, this Court is of the considered opinion that there is no merit in this Criminal Miscellaneous Petition.

Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.