P.P. Chandna and Another vs State of M.P.

Shacheendra Dwivedi, J.—The Petitioners have preferred this revision challenging the cognizance taken by the Court against them for the offences under Sections 284 and 429 of I.P.C. as accused by the Court in the case which had proceeded on a challan filed by the police alleging the commission of an offence u/s 429 I.P.C. only against accused Anand Bihari, wherein the Petitioner No. 1 was made a prosecution witness. However, the learned Magistrate observed against the record that the challan was filed by police also u/s 284 of I.P.C. The learned Magistrate after compounding the offence against the sole accused Anand Behari for offence u/s 429 passed the impugned order at the stage of consideration of the framing of the charge against him u/s 284 of I.P.C.

According to the prosecution allegations, there was poisonous water discharge from the plant of National Fertilizers Limited, Vijaypur, which was stored in a pond of the factory, containing ammonia and urea into a nullah and a bullock belonging to one Dhulia of village Ahmadapur died due to the drinking of water from the nullah. The report thereof was lodged by complainant Dhulia and the matter was investigated by police. The police recorded the statements of the complainant, Dulia and one Baljee, who was working with a contractor, laying the cables, to suggest that bullock had died after drinking the water.

The police during investigation had also examined Petitioner No. 1-P.P. Chandna as a witness. The postmortem of the bullock was also done and the doctor opined that the death was due to consumption of some poisonous substance. Later on when the contents of the abdomen of the bullock were examined at Forensic Science Laboratory, Sagar, the presence of ammonia phosphate and chloride was found which had proved fatal. As such, the person having control on such water of the factory named Anand Bihari was made accused by the police and the challan was filed against him only u/s 429 I.P.C. as stated above.

The learned Magistrate on the filing of the challan on 7.3.89 observed that the challan was preferred under Sections 429 and 284 I.P.C. This observation is perverse and is not based on record. However, the learned Magistrate being empowered to take cognizance of the offences which prima facie appeared to be committed on the material available could have taken cognizance himself. On he day of filing of the challan itself, the complainant had appeared and the permission was sought for compounding the offence u/s 429 I.P.C. for which the challan was filed by police. Since the Magistrate had wrongly observed that the challan was filed under Sections 284 and 429 I.P.C., accused Anand Bihari was acquitted of the charge u/s 429 I.P.C. but the case was kept alive without taking cognizance u/s 284, I.P.C., not being compoundable.

On 2.5.88, which was the date for hearing arguments on charge, the learned Magistrate on the consideration of the challan papers and in particular the police statement of Petitioner No. 1 found that as P.P. Chandna in his statement given to the police on 21.4.88 had slated that the store water of the pond was to be utilised and was being sprayed in the factory premises, had leaked from the storage pond, the charge under Sections 284 and 429 I.P.C. appeared prima facie to be made out against himself and the General Manager of the Factory. Therefore taking cognizance against them under Sections 100(b) and 319 of Code of Criminal Procedure they were summoned through a bailable warrant of Rs. 1,000/- each.

It is contended by the Petitioners counsel that there is a special enactment dealing with such cases and u/s 44 and 47 of the Act, i.e. Water Pollution Act 1974 (for short ''the Act'') a complaint was already filed by the authorised person on the same allegations in the Court of the C.J.M., Guna, which was pending. The complaint was specifically for the alleged discharge of polluted water on 21.4.88 as a consequence of which the bullock of complainant Dhuliya was staled to have died along with other 25 goals and a lot of fishes. The cognizance of the offence under the Act was taken by the Court of the C.J.M., Guna. On the complaint of M.P. Pradushan Niwaran Avam Niyantran Board (for short ''the Board'') and therefore two parallel proceedings could not be allowed to proceed.

It is further contended that there being special legislation dealing with the offences of Water Pollution will override the general law and the police thereunder was also not authorised to file the challan. It is only the Board, which is authorised to file the complaint under the Act and for that reason also the present pending proceeding, under the challan filed by the police deserves to be quashed.

It is also contended that in view of Section 60 of the Act, the provisions of Sections 429 and 284 of I.P.C. could not be put into operation. It is very vehemently contended for the Petitioners that the learned Magistrate had no power and jurisdiction to take cognizance of the matter under Sections 429 and 284 I.P.C. in the presence of Section 49 of the Act, which lays down that no Court shall take cognizance of any offence under the Act except on a complaint made to it by or with the previous sanction in writing of the State Board.

I have considered the contention but decline to accept the same. The Water Pollution Act only provides that the cognizance of an offence under the Act, shall not be taken by any Court except on a complaint made by or with the sanction in writing of the Slate Board. But the Act does not debar the prosecution by police of an accused under the general criminal law which makes such act an offence and provides punishment under Sections 429 and 284 I.P.C. When it is informed to police that offences under Sections 429 and 284 I.P.C. are committed it has the power to investigate and to file the civilian against the accused in the competent Court. Although it is neither desirable nor it is in the public interest that the two parallel proceedings be allowed to continue in two separate Courts and in any such situation, the cases can be brought before one Court and can be proceeded with.

Now, I advert to the question of jurisdiction and power of the Magistrate in taking cognizance of offences. In the instant case, the Petitioners were not made accused when challan was filed by police only against accused Anand Bihari. The learned Magistrate took cognizance against them u/s 100(b) and 319 of Code of Criminal Procedure

u/s 319 of Code of Criminal Procedure, the Court can take cognizance only when in the course of any inquiry or the trial of an offence, it appears to the Court from the evidence recorded that any person not being the accused had committed any offence for which he could be tried together with the accused, the Court may proceed against such person for the offence which appears to have been committed by him. But the section can be brought into play only when evidence is recorded in any inquiry or trial of the case.

Sub-section (4) of Section 319 makes the situation amply clear. It provides that in case the cognizance of the offence is taken against an accused not already on record, then proceedings in respect of such person shall be commenced afresh and the witnesses shall be reheard. Admittedly, in the case no evidence was recorded before passing of the impugned order by the learned Magistrate. The learned Magistrate has taken cognizance of the offence only on the statement of the accused-Petitioner No. 1 recorded u/s 161 Code of Criminal Procedure by the police during the investigation of the offence. The statement of a witness made by him to the police during the inquiry of an offence, cannot be made the basis for taking cognizance of an offence against him by the Court.

Section 190 empowers the Court to take cognizance of an offence against the accused upon a complaint of facts which constitute an offence or upon a police report or even on the information received by the Court from any person other than a Police Officer and/or on its own knowledge that an offence has been committed. In the instant case, the cognizance was not taken upon the information from any other person than a police officer or on the Court''s own knowledge. The only material on which the cognizance has been taken, as is disclosed from the impugned order, is the statement of Petitioner No. 1 P.P. Chandna himself, which he gave to the police during investigation. On such a statement, it is not permissible under the law for a Court to lake cognizance of an offence and to proceed against such witness particularly when there is no more circumstance of any material available against him on record.

The challan was filed by the police against co-accused Anand Behari only u/s 429, I.P.C. and the learned Magistrate himself had granted permission to the complainant to compound the said offence and had acquitted the co-accused of the offence. However, since the Magistrate had maintained that the challan was filed by Police also u/s 284 of I.P.C, which is factually incorrect, the case was not dropped.

Once the learned Magistrate after the consideration of the facts of the case had permitted the compounding of the offence u/s 429, I.P.C. against the sole accused and had acquitted him of the offence, without any further action in that regard, it was then not open to the Magistrate to later take cognizance of the said offence and to summon the other persons for the offence u/s 424 I.P.C. On the consideration of the material and evidence available at the stage of acquittal of accused Anand Bihari the learned Magistrate might have ordered the taking cognizance of offence against any other person, but thereafter there being no fresh circumsrances or any other material for its further consideration, the course adopted by the learned Magistrate for again taking cognizance of an offence u/s 424 I.P.C. was not legally permissible as, the cognizance is taken by the Court of the offence and not of the accused. The earlier taking of cognizance of the offence u/s 424, I.P.C. had ended with the acquittal of the sole accused Anand Bihari. It would also be against the public policy if no finality to that stage is attached.

As against Petitioner No. 2, there was no material at all for taking cognizance of the offence. The learned Magistrate proceeded only on assumption for impleading him as accused in the offences.

For the foregoing discussion, the petition succeeds and the impugned order is, therefore, set aside.