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CR.A/2321/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2321 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
HARKISHAN
RAMNIKLAL JOSHI (ASST. LAW OFFICER)
Versus
STATE
OF GUJARAT & 2
=========================================
Appearance
:
MR RITURAJ M MEENA for
Appellant
MR HL JANI ADDL. PUBLIC PROSECUTOR for Respondent
No.1
MR ZAKIRHUSEN SHAIKH for Respondent Nos. 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/02/2010
ORAL
JUDGMENT
[1] The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
10.04.2007 passed by the learned Judicial Magistrate, First Class,
Junagadh, in Criminal Case No.2436/1996, whereby the accused has been
acquitted of the charges leveled against them.
[2] The
brief facts of the prosecution case are that the
original accused No.1 is a Sunchem Industries and original accused
No.2 is a proprietor. The company is manufacturing remezol dyes and
uses B-Acid 185 k.g., Soda S-85 k.g. etc., as row material for
manufacturing the remezol dyes and for manufacturing the aforesaid
goods, everyday the factory discharging 400 liters polluted water in
the canal without obtaining the permission from the Board. A notice
under Section 23 of the breach of the Water (Pollution and Control of
Pollution) Act (for short the Act ) came to be issued to the
respondents. Therefore, the sample of polluted water was taken and
after sealing the same, sent to the Public Analyst for analysis. On
receipt of the report, it has been found that the accused have
committed the breach of Sections 24 and 25 of the Act. Therefore,
after obtaining the sanction the complaint came to be filed againt
the respondents accused for the offences punishable under
Sections 43, 44 and 47 of the Act before the Court.
[3] To
prove the case against the present accused, the prosecution has
examined the witnesses and also produced documentary evidence.
[4] At
the end of trial, after recording the statement of the accused under
section 313 of Cr.P.C., and hearing arguments on behalf of
prosecution and the defence, the learned trial Judge acquitted the
accused of all the charges leveled against him by judgment and order
dated 10.04.2007.
[5] Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the Sessions Court the appellant State has preferred the
present appeal.
[6] It
was contended by Mr.Rituraj Meena, 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 offence against the present accused. Learned
advocate for the appellant has also taken this court through the
oral as well as the entire documentary evidence. Learned advocate
for the appellant has submitted that the trial Court has not
considered the provisions of Section 49 r/w. Section 11 of the Act.
He has also submitted that the trial Court erred in appreciating
Section 49 of the Act, amended by Act 53 of 1988, and the
Notification dated 28th October, 1999 passed by Forest and
Environment Department. Learned advocate for the appellant has
contended that the trial Court has not properly interpreted the above
sections, decision of this Court in case of M/s.Nicosulf Industries
and Exports Private Limited and others Vs. State of Gujarat and
other, reported in 2002 GLR (2) 1550 relied upon by the trial Court
is not applicable to the facts of the present case. He has contended
that in view of the aforesaid facts and circumstances, the judgment
and order dated 10.04.2007 passed by the learned Judicial Magistrate,
First Class, Junagadh, in Criminal Case No.2436/1996 is required to
be quashed and set aside and the accused may be held guilty for the
offences charged against them.
[7] 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 & Anr, reported in
(2006)6 SCC, 39,
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:
54.
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.
[8] Further,
in the case of Chandrappa
Vs. State of Karnataka, reported
in (2007)4 SCC 415
the Apex Court laid down the following principles:
42. 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.
[9] 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.
[10] Even
in a recent decision of the Apex Court in the case of State
of Goa V. Sanjay Thakran & 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:
16. 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.
[11] Similar
principle has been laid down by the Apex Court in the cases of
State of
Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW
5553 and
in Girja
Prasad (Dead) by LRs
Vs. state of MP, reported in 2007 AIR SCW 5589.
Thus, the powers
which this Court may exercise against an order of acquittal are well
settled.
[12] 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, reported in AIR 1981 SC 1417,
wherein, it is held as under:
&
This court has observed
in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR
93: (AIR 1967 SC 1124) 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.
[13] 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.
[14] I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led by the
trial court and also considered the submissions made by learned
advocate for the appellant, it appears that the prosecution has
failed to follow the provisions of Section 33(1) of the Water
(Prevention and Control of Pollution) Act. From the record the trial
Court has clearly found that the complainant was not authorized to
file complaint against the accused. The trial Court has also observed
that the sanction was accorded without application of mind. Thus,
from the evidence itself it is established that the prosecution has
not proved its case beyond reasonable doubt.
[15] Mr.Meena,
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.
[16] In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondent of
the charges leveled against them.
[17] 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.
[18] 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. Bail bonds, if any, stands cancelled.
[
Z. K. SAIYED,J. ]
(vijay)
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