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Judgment
Z.K. Saiyed, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of
acquittal dated 28.12.2006 passed by the learned 2nd Additional Senior Civil Judge and Judicial Magistrate, First Class, Jungadh in Criminal Case
No. 7370 of 1993, whereby the accused has been acquitted of the charges under Sections 24, 25 and 47 r/w. Sections 43 and 44 of the
Prevention of Water (Pollution and Control) Act, 1981, leveled against them.
The brief facts of the prosecution case are that the accused are running business of manufacturing Textile Dyes at Village : Sabalpur, District:
Junagadh. It is alleged that the accused are required to follow the norms and parameters which are provided by Pollution Control Board in respect
of their industrial and domestic effluent. The effluents are required to be brought to the specific parameters by giving certain treatment and then
after only effluent can be discharged to the drainage. It is alleged that the accused were found discharging their effluent which was untreated and
was hazardous to mankind and to environment and agriculturists. Thereafter, a sample was drawn from the premises of the accused and the same
was analyzed, it was found beyond the parameters. On inspection at the site and on completion of investigation, the complaint came to be filed in
the Court of learned Judicial Magistrate.
Thereafter, the trial was conducted before the learned Magistrate. The prosecution examined the witnesses and also relied upon the oral as well
as documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate acquitted the accused from the
charges alleged against them, vide judgment and order dated 28.12.2006.
Being aggrieved and dissatisfied with the judgment and order dated 26.09.2008 passed by the Chief Judicial Magistrate, Jamnagar in Criminal
Case No. 7370 of 1993, the appellant has preferred the above mentioned Criminal Appeal.
I have heard learned advocate Mr. K.L. Dave for the appellant and learned APP Ms. Mini Nair for the respondent No. 1. I have also gone
through the papers and the judgment and order passed by the trial Court.
Learned advocate Mr. K.L. Dave for the appellant has taken me through the evidence of witnesses and documentary evidence and submitted
that from the above, it is established that the accused have not successfully proved their case beyond reasonable doubt. It was contended by
learned advocate for the appellant that the judgment and order of the learned Magistrate is not proper, legal and it is erroneous. He has vehemently
argued that the learned trial Magistrate has not considered the evidence of the witnesses and the oral as well as documentary evidence produced
on record. He has vehemently argued that learned Magistrate erred in discussing the provisions of Sections 21 and 23 of the said Act and,
therefore, the judgment and order of the trial Court is deserved to be quashed and set aside. Learned advocate for the appellant has relied upon
the order of this Court [Coram: D.H. Waghela, J.] dated 24.09.2009 passed in Criminal Appeal No. 471 of 1997 and submitted that the
judgment and order passed by the trial Court is deserved to be quashed and set aside.
It was further contended by learned advocate for the appellant that the judgment and order of the trial Court is against the provisions of law the
trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the
prosecution has proved the whole ingredients of the evidence against the present respondent. Learned advocate for the appellant has also taken
this Court through the oral as well as the entire documentary evidence.
At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order
of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S.
Narayana Menon @ Mani Vs. State of Kerala and Another, the Apex Court has narrated about the powers of the High Court in appeal against
the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction.
Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of
law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles:
From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, ""substantial and compelling reasons"", ""good and sufficient grounds"", ""very strong circumstances"", ""distorted
conclusions"", ""glaring mistakes"", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of ""flourishes of language"" to emphasis the reluctance of an appellate court to interfere with acquittal than to
curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.
Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence
on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007) 3 SCC 75, the Court
has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would
not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion
arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two
views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the
appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court
has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances,
to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is
connected with the commission of the crime he is charged with.
Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR
2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may
exercise against an order of acquittal are well settled.
It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasonings,
when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State
of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein, it is held as under:
This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate court when it
agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court
expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not
necessary.
I have gone through the Judgment and order of the trial Court. I have also perused the reasons assigned by the learned Magistrate. From the
record, it clearly appears that the learned Magistrate has considered the evidence of the complainant as well as oral as well as documentary
evidence. It appears that the procedure under the provision of Rule 27 of the Gujarat Water (Prevention of Control of Pollution) Rules, which is
mandatory is not followed by the Board. It also appears that no Rojkam or panchnama was done at the time of taking sample. It also appears that
the complainant was not authorized to file complaint against the respondents. After going through the judgment of the trial Court and also the
record, it clearly appears that the trial court has not committed any error in acquitting the accused.
Learned advocate for the appellant is not in a position to show any evidence to take a contrary view of the matter or that the approach of the
trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents of the
charges leveled against them.
I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has
been committed by it.
I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below
and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. If R & P is received by this Court, Registry to transmit
back to the trial Court, immediately.