IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1451 of 2008()
1. K.L.CYRIL, AGED 73, MANAGING DIRECTOR
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. KERALA STATE POLLUTION CONTROL BOARD
For Petitioner :SRI.RENJITH B.MARAR
For Respondent :SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :05/02/2010
O R D E R
P. BHAVADASAN, J.
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Crl.M.C. No. 1451 of 2008
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Dated this the 5th day of February, 2010.
ORDER
This is a petition filed under Section 482 of the
Code of Criminal Procedure seeking to have Annexure A
complaint quashed.
2. Petitioner is the second accused in C.C.
No.871 of 2003 before the Judicial Magistrate of the First
Class, North Paravoor.
3. Proceedings originated on a private
complaint filed against the accused persons for having
committed offence punishable under Section 37 read
with Section 40 of the Air (Prevention & Control of
Pollution) Act, hereinafter referred to as the Act. The
allegation is that the first accused, which is an industry,
has conducting its affairs without complying with the
directions issued by the Department and without valid
consent of the second respondent herein under the Act.
The petitioner would submit that the industry has not
Crl.M.C.1451/208. 2
been functioning since 14.6.2002. On that day an
application for renewal of licence was submitted and it was
rejected by the second respondent. Even going by the
statement made by the second respondent herein, company
has not been running from 27.11.2002 onwards. It is
therefore clear that the complaint itself is not maintainable.
It is also pointed out by the learned counsel for the
petitioner that even assuming that what the complainant
says is true, still the complaint is not maintainable for the
simple reason that it was not laid by a person authorised to
do so. Learned counsel drew the attention of this court to
Section 40 of the Act and relied on the decisions reported in
Mangulal Chunilal v. Manilal Maganlal (AIR 1968 SC
822) and A.K.Roy v. State of Punjab (AIR 1986 SC 2160)
to point out that the complaint is not maintainable.
4. Learned counsel appearing for the second
respondent made available a notification issued, which
showed the persons, who are competent to lay the
complaint.
Crl.M.C.1451/208. 3
5. This petition will have to be succeeded on a
very short ground. Section 43 of the Act reads as follows:
“43. 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 authorized 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 authorized 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)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.”
Crl.M.C.1451/208. 4
In the decision reported in Mangulal Chunilal’s case, it
has been held that the person, who files a complaint must
show that he has the authority to do so. In the decision
reported in A.K.Roy’s case, it has been held that in cases
where there is specific provision regarding the person, who
can lay the complaint or initiate proceedings, that will have
to be done only by that person and nobody else. In other
words, when a thing is to be done in a particular manner, it
can be done only in that way and not in any other way. In
the case on hand, even going by the Notification made
available by the learned counsel for the second respondent,
the person who is competent to lay the complaint is the
Chief Environmental Engineer. Annexure A1 complaint has
been laid by the Assistant Environmental Engineer. There is
nothing to show that he is authorised to lay the complaint.
Section 43 enables the Board or any authorized officer in
this behalf by it. The Board has only authorised the Chief
Environmental Engineer to lay the complaint. The Chief
Environmental Engineer has no authority to delegate that
Crl.M.C.1451/208. 5
function to the Assistant Environmental Engineer.
Therefore, the court could not have taken cognizance on the
basis of the complaint filed by the Assistant Environmental
Engineer.
In the result, this petition is allowed, the impugned
proceedings are quashed and all further proceedings in C.C.
871 of 2003 before the JFCM, North Paravur shall stand
dropped. However, this will not preclude the second
respondent from taking such steps as are available to them
in law.
P. BHAVADASAN,
JUDGE
sb.