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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

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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

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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

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(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

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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.

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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”.

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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

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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

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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]  

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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]