IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1087 of 2007()
1. NCJ RAJAN,
... Petitioner
2. JOHN NEROTH,
3. JOHN MATHEW,
4. JOHN CHACKO,
Vs
1. P.K.KUMUDINI, D/O. LATE KRISHNAN
... Respondent
2. M.P.SOURO, S/O. PAPPU,
3. N.J.CHACKO, DIRECTOR,
4. FRANCIS JOB NEROTH,
For Petitioner :SRI.ROY CHACKO
For Respondent :SRI.C.V.MANUVILSAN
The Hon'ble MR. Justice R.BASANT
Dated :08/06/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.1087 of 2007
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Dated this the 8th day of June 2007
O R D E R
The petitioners are accused 1 and 3 to 5 in a prosecution
under the provisions of ‘The Water (Prevention and Control of
Pollution) Act, 1974. It is alleged that they are directors of a
company. The crux of the allegation is that the said company
had committed offence of water pollution punishable under the
Act in the locality in which it is working. The petitioners have
come before this court with a prayer that the prosecution against
them may be quashed invoking the extraordinary inherent
jurisdiction available to this court under Section 482 Cr.P.C.
2. What are the reasons? The learned counsel for the
petitioner has identified five specific reasons on the basis of
which he claims quashing of proceedings. First of all, it is
contended that no notice under Section 49 of the Act has been
issued to the Pollution Control Board by the first respondent/
complainant before launching this prosecution. After discussions
at the bar, this point is not seriously pressed. It is evident that
this contention is not available to the petitioners in as much as
there is specific averment in the complaint and Ext.P1 document
Crl.M.C.No.1087/07 2
marked in the course of the sworn statement of complainant to
show that notice under Section 49 of the Act had been issued to
the Pollution Control Board before the complainant embarked on
this prosecution.
3. The second contention raised is that the complaint is
not maintainable in as much crucial averments to implicate the
petitioners are not there in the complaint. Section 47(1) reads
as follows:
47.Offences by companies- (1) Where an
offence under this Act has been committed by a
company, every person who at the time the offence
was committed was in charge of, and was responsible
to the company for the conduct of, the business of the
company, as well as the company, shall be deemed to
be guilty of the offence and shall be liable to be
proceeded against and punished accordingly:
Provided that nothing contained in this sub-
section shall render any such person liable to any
punishment provided in this Act if he proves that the
offence was committed without his knowledge for that
he exercised all due diligence to prevent the
commission of such offence.
(emphasis supplied)
4. The relevant averment against the accused persons on
this aspect appears in paragraph 3 of the complaint which also I
extract below:
“It is respectfully submitted that, 50 meters
away from the residence of the complainant, there is a
Crl.M.C.No.1087/07 3
Coir Factory in the name and style of M/s.N.C.John &
Co (herein after referred as the Company in short),
owned by the accused herein. The accused are the
directors of the said company who are solely
responsible for any crime committed by the
company.”
(emphasis supplied)
5. The learned counsel for the petitioner relies on
various decisions on this aspect by courts culminating in the
decision in SMS Pharmaceuticals Ltd. vs. Neeta Bhalla [2005(8)
SCC 89] that was a decision rendered in relation to a prosecution
under Section 138 read with Section 141 of the Negotiable
Instruments Act. In the said decision, it has been held clearly
and unambiguously that unless the requisite averments
attracting culpability so far as the directors are concerned are
made specifically in the complaint, cognizance should not be
taken against such accused directors. It is unnecessary to advert
to precedents earlier in SMS Pharmaceuticals Ltd. vs. Neeta
Bhalla [2005(8) SCC 89]. After considering the entire law on
the point, it has been held unambiguously that the requisite
averments must be there in order to attract the culpable liability
for the directors.
Crl.M.C.No.1087/07 4
6. That position of law is therefore well settled. The
learned counsel for the complainant makes an attempt to
contend that SMS Pharmaceuticals Ltd. vs. Neeta Bhalla [2005
(8) SCC 89] is applicable only to a prosecution like the one under
Section 138 of the Negotiable Instruments Act where the offence
alleged is comparatively insignificant and light and such an
interpretation regarding the requirement of pleadings cannot be
blindly imported into prosecution for a very serious offence like
the one under the pollution laws. The offence alleged committed
by the petitioners in this case affects posterity and therefore the
principles of interpretation under Section 141 of the N.I.Act
cannot be blindly imported. That contention may, of course,
require serious consideration but cannot of course be readily
accepted.
7. The learned counsel for the complainant then
contends that it is not the law that the words of the statute must
be repeated and reiterated in the complaint. The core of the
issue is whether the requisite allegations have been raised
against the accused who are directors of the company.
Paragraph 3 extracted above, according to me, sufficiently
notifies the accused persons of the nature of the allegations that
Crl.M.C.No.1087/07 5
are raised against them. That they are solely responsible for the
crime committed by the company is specifically and effectively
narrated and communicated. The requirement of pleadings
whether it be civil law or criminal law is that the adversary must
be notified of the case on his opponent. The requirements of
pleadings is not certainly an empty formality. This has its
foundation in the principles of natural justice which demand that
no persons must be condemned without being heard.
Opportunity for being heard effectively includes the right to be
notified of the allegations that he has to meet. Language of the
statute need not be ritualistically repeated. It is sufficient if such
averments are there which would effectively and cogently convey
to the indictees the case which they have to meet. Materials and
evidence in support of such pleadings will come only later. In
this view of the matter, I am of the opinion that it may not be
appropriate or proper to throw the prosecution out at the
threshold invoking the extraordinary inherent jurisdiction on the
ground that the averments in paragraph 3 extracted above are
not succinct, sufficient and specific – that they do not repeat
crucial and key words of the statute in Section 47(1) of the Act.
This is not to say that I am totally satisfied with the nature of
Crl.M.C.No.1087/07 6
pleadings. But the inadequacy of the pleadings must be
realistically considered and undeserved benefit cannot be
conferred on an indictee and he cannot be spared of the liability
to face the trial only on such reason. Significantly, this is not a
case where there are no averments at all. The averments in
paragraph 3 extracted above indicate clearly that the accused
are directors of the company and they are solely responsible for
the acts of the company – that is the crime committed by the
company. In these circumstances, I am certainly of the opinion
that the trial must proceed and the court must wait for the
evidence which is likely to be adduced, the core having been
stated in paragraph 3 extracted above. The second contention
raised cannot in these circumstances, justify this court invoking
the powers under Section 482 Cr.P.C.
8. The third contention raised is that there are no
relevant averments which can attract culpability under Section
47(2) of the Act. I agree with the learned counsel for the
petitioner on this aspect. There is no contention that any
consent or connivance was there on the part of the petitioners
which resulted in the commission of the offence nor does the
complainant have a specific case – it is evident on going through
Crl.M.C.No.1087/07 7
the pleadings, that the petitioners are liable under Section 47(2)
of the Act. The contention raised under Section 47(2) of the Act
is therefore entitled to succeed but such success is irrelevant in
view of the answer already given to contention No.2 referred
above. Further, it is apposite to note that accused No.1 is
alleged to be executive director and sixth accused is executive
officer/alleged director as status. What the expression executive
director and executive officer means will certainly have to be
amplified in evidence by the complainant.
9. Fourthly it is contended that subsequent to the
alleged act of pollution in this case, writ petition has been filed
by the complainant along with another before the High court to
ensure that the factory is closed down and does not continue to
perpetuate the alleged pollution. Subsequently, commissions
have been taken out in the court. These, according to me, are
absolutely irrelevant in as much as the precise offence alleged
has been committed in respect of period prior to the filing of the
writ petition. I am not, in these circumstances, referring to the
various materials that have been introduced in evidence, in the
course of the writ petition. Significantly, there is no contention
that the allegation made in the petition do not reveal the
Crl.M.C.No.1087/07 8
commission of an offence under the Act by the company during
the relevant period – i.e the period prior to the filing of the writ
petition.
10. Fifthly and lastly it is contended that the Pollution
Control Board has subsequently duly licensed the petitioner’s
company. The subsequent establishment of appropriate
pollution plants and abatement of nuisance of pollution cannot
certainly have the effect of obliterating or effacing the offence, if
any already committed. In view of that also, the subsequent
granting of licence by the Pollution Control Board cannot, in any
way deliver any advantage to the petitioners.
11. No other contentions are raised. I am, in these
circumstances, of the opinion that no circumstances have been
brought out which would justify premature termination of the
proceedings against the petitioners by invoking the
extraordinary inherent jurisdiction under Section 482 Cr.P.C. It
is unnecessary to advert to precedents which have been cited
copiously at the Bar on this aspect. Suffice it to say that the
jurisdiction which I am called upon to invoke and exercise is an
extraordinary inherent jurisdiction which cannot be invoked as a
matter of course and which ought to be invoked only sparingly
Crl.M.C.No.1087/07 9
and in exceptional cases – in the rarest of rare cases as held in
Kurukshetra University vs. State of Haryana [AIR 1977 SC
2229]. I am of the opinion that the materials available in this
case [considering the nature of allegations, the gravity of the
allegations and the precise conduct alleged as revealed from the
circumstances] this is not a fit case where such a jurisdiction can
and ought to be invoked. I must, however, hasten to observe
that I have not intended to finally conclude any disputed
question of fact or law and I have only chosen to hold that
powers under Section 482 Cr.P.C need not be invoked at this
stage and with the present materials.
12. This Criminal Miscellaneous Case is accordingly
dismissed with the above observations.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.1087/07 11
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007