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Prosecution Under Water And Air Act Can Be Launched Only By Way Of Complaint Case, Police Can’t Register FIR: P&H HC

PREFACE

While setting the record straight and dispelling away all the doubts that were hovering on which mode the prosecution under the Water and Air Act can be launched, the Punjab and Haryana High Court at Chandigarh in a most learned, laudable, landmark and latest oral judgment titled Ravi Shanker Gupta vs State of Haryana and another in CRM-M No. 1596-2018 (O&M) and cited in Neutral Citation No.: 2024:PHHC:018720 that was pronounced as recently as on February 8, 2024 has minced just no words to make it indubitably clear that the police has no power to investigate or prosecute any offence under Air Act and Water Act. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Harpreet Singh Brar said most explicitly that, “This Court is of the considered opinion that the police has no power either to investigate, prosecute or deal with any offence either under the Water (Prevention and Control of Pollution) Act, 1974 or under the Air (Prevention and Control of Pollution) Act, 1981.” It must be noted that these key observations were made in response to a plea that had been made which sought the quashing of FIR that had been lodged under Section 188 IPC, Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 33A of the Air (Prevention and Control of Pollution) Act, 1981 at Faridabad.

INTRODUCTION

At the very outset, this simple, short and straightforward judgment sets the ball in motion by first and foremost putting forth in para 1 that, “This petition has been filed under Section 482 of the Code of Criminal Procedure seeking quashing of FIR No. 99 dated 17.03.2016 registered under Section 188 IPC, under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 33A of The Air (Prevention and Control of Pollution) Act, 1981 at Police Station Mujessar, District Faridabad.”

FACTUAL BACKGROUND

To put things in perspective, the Bench while elaborating on facts envisages in para 2 that, “The facts, in brief, are that the petitioner is the proprietor of the M/s Mahadev Forgings & Components Firm. The said unit was installed in the year 2005 after obtaining the necessary permissions and engaged in manufacturing the automobile parts by forging and compressing the raw material in hot furnaces. The Haryana State Pollution Control Board issued an order dated 12.09.2014 for closure of the unit being run by the petitioner on grounds that the same was being run without obtaining necessary permissions. The aforesaid order of closure was challenged before the Appellate authority concerned but appeal was dismissed vide order dated 21.11.2014 (Annexure P-2), upon which the unit was again sealed by the authorities. During an inspection on 30.12.2015, the unit of the petitioner was found to be operating illegally after breaking the seal imposed by HSPCB, Ballabgarh Region, i.e., in contravention to the provisions of Section 33-A of the Water Act, 1974 and 33-A of the Air Act, 1981. Thereupon, the impugned FIR (Annexure P-1) came to be registered against the petitioner on complaint received from Sh. KL Nagpal alleging that the said unit was operating by tempering and breaking the seal affixed by the authorities.”

OBSERVATION AND ANALYSIS

Briefly stated, the Bench states in para 5 that, “Having heard learned counsel for the parties and after perusing the record, this Court is of the opinion that for proper appreciation of the arguments advanced by the learned counsel for the parties, the following provisions need to be examined:

Section 43 of “The Air (Prevention and Control of Pollution) Act, 1981

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.

Police Can't Register FIR for Water and Air Act Offences P&H HC

(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.

Section 49 of the “The Water (Prevention and Control of Pollution) Act, 1974 49. 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 [(2) Where a complaint has been made under clause (b) of subsection (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.]

3 [(3)] Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Judicial Magistrate of the first class or for any Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act.”

Be it noted, the Bench notes in para 6 that, “The perusal of the aforesaid statutory provisions as well as the record available, this Court finds that if a special statute provides for a particular procedure excluding the provision of Indian Penal Code, the provisions of IPC cannot be invoked. Section 4(2) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C) provides that all the offences under any other law are to be investigated, inquired into and otherwise dealt with in accordance with the provisions of the said ‘special law’ in so far as they are not repugnant to the Code. A bare perusal of the aforesaid provision leads to only logical interpretation that by enacting the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 33A of The Air (Prevention and Control of Pollution) Act, 1981, the provisions of Indian Penal Code are expressly excluded. Section 43 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 49 of The Air (Prevention and Control of Pollution) Act, 1981 make it abundantly clear that no Court shall take cognizance of an offence under this Act except on a complaint made by the Appropriate Authority (a Board or any officer authorised under the Act).”

Most forthrightly, the Bench propounds in para 7 that, “Further, Section 2(d) of Cr.P.C. defines the term ‘complaint’ as any oral or written allegation made to a Magistrate with a view to taking action under the Code. The definition provided under Section 2(d) of the Cr.P.C. does not include a police report, which is further defined in Section 2(r) of Cr.P.C., which means a report forwarded by the Police Officer to a Magistrate under sub-section 2 of Section 173 Cr.P.C. The statutory scheme under the Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 provides that the prosecution under them can only be launched by way of a complaint case an FIR cannot be registered under the provisions of the same. Therefore, the impugned FIR and all the subsequent proceedings arising therefrom are void ab initio and are liable to be quashed.”

While citing the most relevant Apex Court rulings, the Bench then hastens to add in para 8 stating that, “The Hon’ble Supreme Court has categorically held in Union of India vs. Ashok Kumar Sharma and others 2021 CriLJ 2006 that under a special statute like Drugs and Cosmetics Act, 1940, as per the provisions of section 32 of the said Act read with the scheme of the Cr.P.C., a police officer cannot prosecute an offender in regard to such offence even if they are cognizable offences and the persons authorized under section 32 of the Act are entitled to do the same. Further reliance in this regard can be placed on Ajay Kumar Sandhu vs. State of Haryana in CRM-M-29708-2014 and Jeewan Kumar Raut & Another versus C.B.I (2009) 7SCC 526, in which it has been held that if a special enactment lays down the provisions regarding procedure that must be adopted for investigation and adjudication of an offence that falls in its purview, general provisions of the IPC or the Cr.P.C. will not be attracted.”

It is worth noting that as a corollary, the Bench then further notes in para 9 that, “As such, the very registration of FIR (supra) is bad in the eyes of law, as cognizance of an offence under Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 can only be taken up on a criminal complaint filed by the officer authorized under the respective Act in this regard. Moreover, the FIR (supra) registered under Section 188 IPC cannot sustain due to non-compliance of Section 195 of the Code of Criminal Procedure, as discussed above.”

CONCLUSION

Finally and far most significantly, the Bench concludes by directing and holding in para 10 that, “In view of the above discussion, this Court is of the considered opinion that the police has no power either to investigate, prosecute or deal with any offence either under the Water (Prevention and Control of Pollution) Act, 1974 or under the Air (Prevention and Control of Pollution) Act, 1981. Hence, FIR No. 99 dated 17.03.2016 registered under Section 188 IPC, under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 33A of the Air (Prevention and Control of Pollution) Act, 1981 at Police Station Mujessar, District Faridabad is quashed qua the petitioner.”

In conclusion, we thus see that the Punjab and Haryana High Court has made it indubitably clear that the prosecution under the Water and the Air Act can only be launched by way of complaint case. It is also made crystal clear by the Chandigarh High Court that in such cases the police can’t register FIR and so without fail the police must definitely abide by what the Court has held in this leading case so very clearly, cogently and convincingly. No denying it!

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