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Judgment
By way of present Revision Application under
Section 397 read with Section 401 of the Criminal Procedure Code the present applicant - original complainant has challenged the judgment and order dated 9.4.2007 passed in Criminal Case No.974 of 2006 by the learned Judicial Magistrate First Class, Porbandar below Ex.13 and 16.
The brief facts of the case of complainant - applicant are that complaint against the Oriental Abrasive Ltd., under Section 21 of the Air Pollution Act for breach of Section 40 read with Section 37 of the Act was lodged.
The accused No.7 is the Assistant General Manager in Oriental Abrasive Ltd. His duty is to address the issue with regard to problems faced by the employees. In his duty no any technical, pollution elated or mechanical problem is involved.
Investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and,
ultimately, charge?sheet came to be filed against them in the Court of learned Magistrate.
Thereafter, charge came to be framed and
explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried.
In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
Thereafter, after filing closing pursis by
the prosecution, further statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
At the conclusion of trial and after
appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, dismissed the application of the applicant - Gujarat Pollution Control Board.
Being aggrieved by and dissatisfied with the
said judgment and order dated 9.4.2007 passed
in Criminal Case No.974 of 2006 by the learned Judicial Magistrate First Class, Porbandar below Ex.13 and 16 the applicant - complainant has preferred the present revision application before this Court.
Heard Mr.Amit N. Patel, learned advocate for the applicant. He has contended that learned Magistrate ought to have considered the fact that undertaking given by Mr.R.K.Shah, Occupier in Orient Abrasives Ltd., is qua responsibility under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 for company which the complainant had issued notice to the company. The learned Magistrate has relied upon the undertaking dated 13.12.2005 and discharged all the accused persons.
He has contended that in the application made below Ex.13 it is clearly stated that complaint can be filed against the Chairman Director or other responsible officer or occupier of the Company. He has contended that undertaking produced by the accused before the Court is only for the action taken by the Gujarat Pollution Control Board under Section 31A of the Act and not for all purpose.
He has contended that undertaking produced
by opponent is nothing but the reply to the notice. It cannot be held on the basis of the undertaking that the Company can delegate its criminal liability to some person. He has contended that undertaking produced by accused persons is not applicable to the current proceedings.
In support of his submission he has relied
on the decision in the case of U.P.Pollution Control Board vs. M/s.Mohan Meakins Ltd., and ors ., reported in 2000 CRI. L.J. 1799, wherein it is held that allegation in complaint that Directors/Managers who are responsible for constructing proper works and plant for the treatment of their highly polluting trade effluent are deliberately avoiding to do it, quashing of proceedings against directors on ground that they are not shown to be responsible for conduct of business of company not proper. Lastly he has prayed to quash and set aside the impugned order passed by the learned Magistrate.
Heard Mr.B.B.Naik, learned Senior Advocate appearing with Mr.Abhishek Mehta, learned advocate for respondent Nos.2 to 8
has contended that from the documents produced on record before the learned Magistrate and contentions raised by Mr.R.K.Shah, occupier it is properly considered by the learned trial Court. The learned trial Court has applied its mind and as per provisions of law laid down by the Apex Court order was passed by the learned Magistrate. He has prayed that no interference is required in the judgment and order passed by the learned Magistrate.
In support of his submission he has relied
on the decisions in the case of N.K.Wahi vs. Shekhar Singh and Ors ., reported in (2007) 9 SCC 481 and Shri Moosa Raza vs. State of Gujarat & Anr., reported in 2009 (2) G.L.H. 200.
Heard learned advocates for both the parties. I have gone through the papers produced in the case and have gone through the judgment and order passed by the learned Magistrate and citations produced on record. From the papers it appears that the prosecution has prima?facie failed to prove case against the respondents. A positive averment has not been made in the complaint to hold the respondents liable for the offence.
In the result, the Revision Application is
hereby dismissed. The impugned Judgment and order dated 9.4.2007 passed in Criminal Case No.974 of 2006 by the learned Judicial Magistrate First Class, Porbandar below Ex.13 and 16 acquitting the respondents - accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.