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CASE NO.:

Special Leave Petition (crl.) 3978 of 1999

PETITIONER:

U.P. POLLUTION CONTROL BOARD

Vs.

RESPONDENT:

M/S MOHAN MEAKINS LTD. AND OTHERS

DATE OF JUDGMENT: 27/03/2000

BENCH:

K.T. THOMAS & M.B. Shah

JUDGMENT:

THOMAS, J.

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River "Gomti" is a tributary of Ganga. It is a bane

that almost all rivers in India are now saturated with

pollutants and the holy river is not spared from that

malady. What causes greater concern to those for whom

rivers flowed sanctified waters, and to those, for whom

rivers supplied potable water, is the frightening gallop of

pollution level in recent decades. The measures evolved by

the Parliament to control the escalating poisoning of our

streams have not yielded the desired results due to a

variety of causes. The present is a case in which the trade

effluents discharged by an industrial unit of a premier

liquor processing company made the water in Gomti more

polluted to impermissible levels. So the State Pollution

Control Board (`the Board' for short) initiated proceedings

for prosecuting M/s Mohan Meakins Limited and its Directors

way back in 1983. Alas, the canoe remains at the starting

point itself in spite of lapse of long seventeen years till

now.

Though the trial court issued process against the

accused at the first instance, they desired the trial court

to discharge them without even making their first appearance

in the court. When the attempt made for that purpose failed

they moved for exemption from appearance in the court. In

the meanwhile the Sessions Judge, Lucknow (Shri Prahlad

Narain) entertained a revision moved by the accused against

the order issuing process to them and, quashed it on the

erroneous ground that the magistrate did not pass "a

speaking order" for issuing such summons.

The Chief Judicial Magistrate, (before whom the

complaint was filed) thereafter passed a detailed order on

25.4.1984 and again issued process to the accused. That

order was again challenged by the accused in revision before

the Sessions Court and the same Sessions Judge (Shri Prahlad

Narain) again quashed it by order dated 25.8.1984.

The Board moved the High Court in a revision against the

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said order. Though the motion was made in 1984 itself it

took fifteen years for the High Court to dismiss that

revision petition as per the order passed by a learned

Single Judge on 27.7.1999. The special leave petition to

appeal is filed in challenge of the said order. Special

leave granted.

We may point out at the very outset that the Sessions

judge was in error for quashing the process at the first

round merely on the ground that the Chief Judicial

Magistrate had not passed a speaking order. In fact it was

contended before the Sessions judge, on behalf of the Board,

that there is no legal requirement in Section 204 of the

Code of Criminal Procedure (For short the `Code') to record

reasons for issuing process. But the said contention was

spurned down in the following words:

"My attention has been drawn to Section 204 of the Code

of Criminal Procedure and it has been argued that no reasons

for summoning an accused persons need be given. I feel that

under Section 204 aforesaid, a Magistrate has to form an

opinion that there was sufficient ground for proceeding and,

if an opinion had to be formed judicially, the only mode of

doing so is to find out express reasons for coming to the

conclusions. In the impugned order, the learned Magistrate

has neither specified any reasons nor has he even formed an

opinion much less about there being sufficient ground for

not proceeding with the case."

In a recent decision of the Supreme Court it has been

pointed out that the legislature has stressed the need to

record reasons in certain situations such as dismissal of a

complaint without issuing process. There is no such legal

requirement imposed on a magistrate for passing detailed

order while issuing summons vide Kanti Bhadra Shah vs.

State of West Bengal [2000(1) SCC 722]. The following

passage will be apposite in this context:

"If there is no legal requirement that the trial court

should write an order showing the reasons for framing a

charge, why should the already burdened trial courts be

further burdened with such an extra work. The time has

reached to adopt all possible measures to expedite the court

procedures and to chalk out measures to avert all roadblocks

causing avoidable delays. If a Magistrate is to write

detailed orders at different stages, the snail-paced

progress of proceedings in trial courts would further be

slowed down. We are coming across interlocutory orders of

Magistrates and Sessions Judges running into several pages.

We can appreciate if such a detailed order has been passed

for culminating the proceedings before them. But it is

quite unnecessary to write detailed orders at other stages,

such as issuing process, remanding the accused to custody,

framing of charges, passing over to next stages in the

trial."

(Emphasis supplied)

It was unfortunate that the Sessions judge himself did

not look into the complaint at that stage to form his own

opinion whether process could have been issued by the Chief

Judicial Magistrate on the basis of the averments contained

in the complaint. Instead the sessions judge relegated the

work to the trial magistrate for doing the exercise over

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again. After the Chief Judicial Magistrate passed the

second order issuing process, the Sessions judge quashed the

said order on the second occasion also and stated thus:

"Having scrutinized the array of accused persons in this

complaint, I have felt that since no specific role in the

flowing of the polluted effluents into the river Gomti has

been assigned to any of the present applicant Nos., 2 to 11,

the law laid down in the Delhi Municipal Corporation case

referred to above requires that the impugned order summoning

the present applicant Nos. 2 to 11 must be quashed."

Learned Sessions judge relied on the decision of this court

in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi

[1983 (1) SCC 1]. Though an attempt was made before the

Sessions judge to offset the impact of the said decision by

citing a later decision of this Court in Municipal

Corporation of Delhi vs. Purshotam Dass Jhunjunwala [AIR

1983 (1) SCC 9] it did not deter the Sessions judge from

quashing the order passed by the magistrate issuing summons

on the second occasion. Learned single judge of the High

Court who heard the revision confirmed the said order as per

the impugned judgment in which it is stated, inter alia,

thus:

"In the present case the revisionist has not been able

to show that the directors (opp. parties Nos.5 to 13) were

in charge of or responsible to the company for the conduct

of the business of the company. No effort was made at the

hearing before this Court to show that such allegations were

contained in the complaint filed by the revisionist."

In Municipal Corporation of Delhi vs. Ram Kishan

Rohtagi & ors. {1983 (1) SCC 1} cited by the Sessions

judge, and sought to be relied on here also by the learned

counsel for the respondents, a two Judge Bench of this Court

considered the validity of prosecution proceedings taken

under the Prevention of Food Adulteration Act. The Delhi

High Court had quashed the complaint filed by the Municipal

Corporation of Delhi against a company and its manager as

well as the directors, against whom the offence under

Section 7 read with Section 16 of the FPA Act was alleged.

On the factual position this Court noticed that "so far as

the Directors are concerned, there is not even a whisper nor

a shred of evidence nor anything to show, apart from the

presumption drawn by the complainant, that there is any act

committed by the Directors from which reasonable inference

can be drawn that they could also be vicariously liable." It

was only on the said fact situation that the complaint as

against the Directors was quashed. In Municipal Corporation

of Delhi vs. Purshottam Dass (supra) the same Bench of two

Judges pointed out the different factual position therein

that "a clear averment has been made regarding the active

role played by the respondents (the Directors of the

company) of the extent of their liability," and hence the

court declined to quash the complaint.

Neither of the above decisions has laid down a legal

position which can be of any use to the respondents in this

case for contending that the Directors cannot be prosecuted

for the offence alleged. In the complaint filed by the

appellant before the Chief Judicial Magistrate, the company

(M/s. Mohan Meakins Ltd.) has been arrayed as first accused

and the other persons who were arrayed as accused 2 to 10

were described as the Directors of the said company. The

11th person arrayed in the complaint as accused is described

as the Manager of the Company. The averments in the

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complaint show that the Distillery unit of the company at

Daltonganj, Lucknow, has been discharging noxious trade

effluents into the river Gomti and causing continuous

pollution of the river. It was further averred in the

complaint that on 19-9-1982, samples of trade effluents were

collected by the officers empowered in this behalf, from the

drain "just outside the plant inside the factory", and from

the irrigation plant out of which the effluents were pumped

into the river. When the samples were analysed in the

Industrial Toxicology Research Center, Lucknow, it was

revealed that the quality of effluents was beyond the

standard laid down for the purpose. Therefore, it is

alleged that the company has violated Section 24 of the Act

and thereby the company is guilty of the offence under

Section 43 of the Act.

Where an offence under the Act has been committed by a

company every person who was in charge of and was

responsible to the company for the conduct of the business

of the company is also made guilty of the offence by the

statutory creation. Any Director, Manager or other officer

of the company, who has consented to or connived in the

commission of the said offence, is made liable for the

punishment of the offence. This is clearly discernible from

Section 47 of the Act.

"47. Offences by companies.- 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 to be proceeded against

and punished accordingly."

In the above context what is to be looked at during the

stage of issuing process is whether there are allegations in

the complaint by which the Managers or Directors of the

company can also be proceeded against, when the company is

alleged to be guilty of the offence. Paragraph 12 of the

complaint reads thus:

"That the accused persons from 2 to 11 are

directors/managers/partners of M/s. Mohan Meakins

Distillery, Daliganj, Lucknow, as mentioned in this

complaint are responsible for constructing the proper works

and plant for the treatment of their highly polluting trade

effluent so as to conform the standard laid down by the

Board. Aforesaid accused persons are deliberately avoiding

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to abide the provisions of sections 24 and 26 of the

aforesaid Act which are punishable respectively under

Sections 43 and 44 of the aforesaid Act, for which not only

the company but its directors, managers, secretary and all

other responsible officers of the accused company,

responsible for the conduct of its business are also liable

in accordance with the provision of the Section 47 of the

Act."

The appellant has further stated in paragraph 23 of the

complaint that "the Chairman, Managing Directors and

Directors of the company are the persons responsible for the

act and therefore, they are liable to be proceeded against

according to the law."

Shri P.Chidambaram, learned senior counsel who argued

for respondents made a fervent plea to rescue the Directors

of the company on the ground of lapse of a long time now

since the institution of the complaint. Lapse of seventeen

years is no doubt considerable, but the Board is not the

least to be blamed for it. Since it is not a pleasant task

to probe into the causes which contributed for such a long

delay we choose to refrain from doing that exercise.

Nonetheless, lapse of such long period cannot be a reason to

absolve the respondents from the trial. It must reach its

logical culmination. Courts cannot afford to lightly deal

with cases involving pollution of air and water. The

message must go to all concerned. The courts will share the

parliamentary concern on the escalating pollution level of

our environment. Those who discharge noxious polluting

effluents to streams may be unconcerned about the enormity

of the injury which it inflicts on the public health at

large, the irreparable impairment it causes on the aquatic

organisms, the deleteriousness it imposes on the life and

health of animals. So the courts should not deal with the

prosecution for offences under the Act in a casual or

routine manner. Parliamentary concern in the matter is

adequately reflected in strengthening the measures

prescribed by the statute. The court has no justification

for ignoring the seriousness of the subject.

We are, therefore, not inclined to accede to the plea

made by Shri Chidambaram on the ground of lapse of long

period now. Of course this lapse of long period is a good

reason for expediting the trial. Now the deck is clear and

hence the trial court can proceed with faster pace and

accelerated velocity.

If any of the accused applies for dispensing with his

personal presence in the court, after making the first

appearance, the trial court can exempt him from continuing

to appear in the court by imposing any condition which the

court deems fit. Such conditions can include, inter alia,

that a counsel on his behalf would be present when the case

is called, that he would not dispute his identity as the

particular accused in the case, and that he would be present

in court when such presence is imperatively needed.

Subject to the above observations, we set aside the

impugned judgment of the High Court as well as the order of

the Sessions Court. We direct the trial court to proceed

with the case in accordance with law and dispose it of as

expeditiously as possible.

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