1. The present petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner herein – original complainant – Gujarat Pollution Control Board to quash and set aside the impugned judgement and order dated 20/10/2006 passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.4, Vadodara in Criminal Revision Application No.20 of 2002 as well as order passed by learned Judicial Magistrate, First Class, Savli dated 29/11/2001 passed below Exh-78 in Criminal Case No.1846 of 1995, by which, learned Magistrate has discharged respondent Nos.2 to 4 herein – original accused for the offences punishable under Sections 43 and 44 read with 47 of the Water (Prevention and Control of Pollution) Act, 1974 [hereinafter referred to as “the Water Act”].
2. Facts leading to the present petition, in nutshell, are as under:
The petitioner herein – original complainant has filed/instituted Criminal Case No.1846 of 1995 against the accused persons for the offences punishable under Sections 43 and 44 read with 47 of the Water Act, who was authorised person to file the complaint for and on behalf of the Gujarat Pollution Control Board. That the learned Magistrate directed to issue summons/ process against the accused persons for the offences punishable under Sections 43 and 44 read with 47 of the Water Act. Thereafter, the accused persons submitted application Exh-78 in Criminal Case No.1846 of 1995 before learned Judicial Magistrate, First Class, Savli for discharge solely on the ground that the petitioner, who filed the complaint was not authorised and he cannot be said to have authority to file the complaint. Relying upon decision of the learned Single Judge of this Court reported in 2002(1) GCD 472, learned Magistrate has allowed the said application and discharged the accused persons on the ground that the petitioner was not having authority to file the complaint for and on behalf of the Gujarat Pollution Control Board. Being aggrieved by and dissatisfied with the order passed by learned Judicial Magistrate, First Class, Savli dated 29/11/2001 passed below Exh-78 in Criminal Case No.1846 of 1995 in discharging the accused persons, the petitioner herein – original complainant preferred Criminal Revision Application No.20 of 2002 before learned Sessions Court, Vadodara and learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.4, Vadodara by order dated 20/10/2006 has been pleased to dismiss the said Criminal Revision Application and has confirmed the order passed by learned Judicial Magistrate, First Class, Savli. Being aggrieved by and dissatisfied with the aforesaid two orders, the petitioner herein – original complainant has preferred the present petition under Article 227 of the Constitution of India.
3. Mr.Sunil Mehta, learned advocate appearing on behalf of the petitioner herein – original complainant has submitted that the decision of the learned Single Judge reported in 2002(1) GCD 472 (supra), which has been relied upon by both the Courts below, has been set aside by Hon'ble Supreme Court in the case of Gujarat Pollution Control Board V/s. Nicosulf Industries & Exports Private Limited and others reported 2009(2) SCC 171 and it is held that grant of sanction to file the complaint would be in law and authorisation to file the complaint and, therefore, authorisation/ sanction would be a valid if it is given by the State Board. Therefore, it is requested to allow the present petition and to quash and set aside the orders passed by both the Courts below and direct the concerned Magistrate to proceed further with the aforesaid case in accordance with law and on merits.
4. Mr.Pradeep Patel, learned advocate appearing on behalf of the original accused is not in a position to dispute that the decision of the learned Single Judge, which has been relied upon by both the Courts below, has been set aside by Hon'ble Supreme Court in the case of Nicosulf Industries & Exports Private Limited and others (supra) and he is also not in a position to show any contrary decision to the law laid down by the Hon'ble Supreme Court in the case of Nicosulf Industries & Exports Private Limited and others (supra).
5. Mr.L.B.Dabhi, learned Additional Public Prosecutor has supported the learned advocate appearing on behalf of the petitioner herein – original complainant and has requested to allow the present petition.
6. Heard learned advocates appearing on behalf of the respective parties at length. Considering the order passed by learned Judicial Magistrate, First Class, Savli passed below Exh-78 in Criminal Case No.1846 of 1995 discharging the accused persons as well as impugned judgement and order dated 20/10/2006 passed by the learned Revisional Court confirming the order passed by learned Judicial Magistrate, First Class, Savli, it appears that both the Courts below have relied upon the decision of the learned Single Judge in the case of Nicosulf Industries & Exports Private Limited and others (Supra) while discharging the accused persons. It is not in dispute that decision of the learned Single Judge rendered in the case of Nicosulf Industries & Exports Private Limited and others (supra) has been set aside by the Hon'ble Supreme Court in the case of Gujarat Pollution Control Board V/s. Nicosulf Industries & Exports Private Limited and others reported in 2009(2) SCC 171 and in Paragraph Nos.16 and 17, the Hon'ble Supreme Court has observed and held as under:
“16. There is no substantial difference in the language of the amended Section 49. The High Court proceeded on the basis that the complaint was illegal since the complaint filed was not duly authorised. Though the High Court proceeded on the basis of amended Section 49, the amended as well as unamended provisions require the State Board to file a complaint or to authorise any of its officers to file the complaint. The authorisation has to be by the State Board. According to the Board, under Section 11-A of the Act it had delegated to the Chairman the power to authorize an officer to file a complaint. The Resolution dated 27-3-1984 refers to the delegation of power for sanctioning prosecution.
17. The High Court has held that the power to sanction a complaint is distinct from the power to authorise the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorisation to file the complaint. The stand of the appellant is that the difference between sanction and authorisation in the context of provisions of the Act and in contradistinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded.”
7. Under the circumstances, view taken by the learned Single Judge in the case of Nicosulf Industries & Exports Private Limited and others (supra) has not been accepted by Hon'ble Supreme Court and the Hon'ble Supreme Court has held and observed as above. Under the circumstances, the impugned order passed by learned Judicial Magistrate, First Class, Savli discharging the accused persons on the ground that the petitioner, who has filed the impugned complaint was not authorised to file the complaint, cannot be sustained and the same deserves to be quashed and set aside.
8. In view of the above and for the reasons stated hereinabove, the application succeeds. The judgement and order dated 20/10/2006 passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.4, Vadodara in Criminal Revision Application No.20 of 2002 as well as order dated 29/11/2001 passed by learned Judicial Magistrate, First Class, Savli below Exh-78 in Criminal Case No.1846 of 1995 are hereby quashed and set aside and learned Judicial Magistrate, First Class, Savli is hereby directed to proceed further with Criminal Case No.1846 of 1995 in accordance with law and on merits. Rule is made absolute to the aforesaid extent.
*dipti [M.R.SHAH,J]