Hon'ble Shamim Ahmed,J.
1. Heard learned counsel for the petitioner and the learned A.G.A.
2. On 11.01.2021, this court passed the following order:
"Heard Digvijay Singh, learned counsel for the petitioner and learned A.G.A. for the respondents.
An F.I.R. dated 17.10.2020 was lodged against the petitioner under Section 278 I.P.C. and Section 2 & 37 of the Air (Prevention & Control of Pollution) Act, 1981, Police Station-Baragaon, District Jhansi. The F.I.R. has been lodged by the Revenue Inspector on the instruction made by Sub Divisional Magistrate and Station House Officer, Baragaon, District Jhansi.
The F.I.R. is reproduced below:
""नकल तहरीर हिन्दी वादी सेवा में श्रीमान थानाध्यक्ष महोदय थाना बड़ागांव (झांसी) निवेदन है कि ग्राम गोरामछिया के हाईवे से लगे हुये लक्ष्मी क्रेसर ग्रेनाइट क्रेशर प्लाण्ट गोरामछिया क्रेशर से अधिक मात्रा मे इस्ट(धूल) उड रही है जिससे वायु प्रदूषण हो रहा है। इस सम्बन्ध मे मौके पर श्रीमान उपजिलाधिकारी महोदय व थानाध्यक्ष बड़ागाँव द्वारा निरीक्षण किया गया है। अतः निवेदन है कि उक्त प्रकरण के सम्बन्ध मे वायु प्रदूषण अधिनियम की सुसंगत धारा मे प्राथिमिकी दर्ज कर आवश्यक कार्यवाही करने की कृपा करेंदिनांक 17.10.2020 Sd अंग्रेजी अपठनीय प्रार्थी सीताराम रा०नि0 क्षेत्र बड़ागाँव तह० झाँसी मो०नं० - 8127631851 सीताराम पुत्र स्व० रामचरन तहसील झाँसी। नोट -मै का०मु० 264 राजप्रताप सिंह प्रमाणित करता हू कि तहरीर की नकल शब्द व शब्द सही अंकित की गयी है।"
The petitioner owns a crusher plant. He is running it under the permission granted by U.P.Pollution Control Board, Jhansi dated 06.03.2020 for a period from 1.1.2020 to 31.07.2021 under Section 21/22 of the Air (Prevention and Control of Pollution) Act, 1981. Prima facie, the F.I.R. as aforequoted does not disclose commission of offence under Section 278 I.P.C. inasmuch as there is no allegation in the F.I.R. that the petitioner voluntarily vitiated the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way.
The permission to the petitioner has been granted by U.P. Pollution Control Board under Section 21/22 of the Act of 1981. Section 22-A of the Act of 1981, empowers the Board to make application to court for restraining persons from causing air pollution. Section 37 is part of Chapter VI of Act of 1981, which provides for the punishment with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine, if a persons fails to comply with the provisions of Section 21 and or section 22 with the directions issued under Section 31-A of the Act of 1981. Section 22 provides that no person operating any industrial plant, in any air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board under clause (g) of sub-section (1) of section 17. Section 43 of the Act of 1981 which is also part of Chapter VI (penalties and Procedure) provides that 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;
(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.
Thus the conduct of Sub Divisional Magistrate concerned, respondent Nos. 3 and 4 prima facie appears to be illegal and unauthorized and prima facie they themselves have committed breach of law.
Learned A.G.A. prays for and is granted a weeks' time to file personal affidavits of the respondent Nos. 2, 3 and 4. The affidavit of the Sub Divisional Magistrate concerned shall also be filed explaining the facts and the circumstance and legal basis under which the impugned F.I.R. was instructed to be lodged by respondent No.4.
Put up as fresh case on 18.01.2021.
In the meantime, no coercive action shall be taken against the petitioner pursuant to the impugned F.I.R."
3. Today, the learned A.G.A. has filed separate personal affidavits of respondent Nos.2, 3 and 4, all dated 20.01.2021 and an affidavit of Sri Raj Kumar, Sub-Divisional Magistrate, Jhansi dated 18.01.2021, which all are taken on record.
4. The aforesaid personal affidavit of respondent No.2, i.e. the Senior Superintendent of Police, District Jhansi runs in four paragraphs. In paragraph-2 of the affidavit, the respondent No.2 has stated as under:
"2. That after passing of the order dated 11.01.2021 passed by this Hon'ble Court, the deponent inquired into the matter and found that the said first information report was lodged by the Revenue Inspector of the area concerned on 17.10.2020 for the air pollution which was being spread by the Lakshmi Crusher Granite Plant, Gora Macchiya on the instruction of the Sub Divisional Magistrate, but during the investigation it was found that the Proprietor of the M/s Lakshmi Industries was having a consent order duly issued from U.P. Pollution Control Board, Jhansi with validity up to 31.7.2021 and hence, the Investigating Officer after verifying the same from U.P. Pollution Control Board went on to submit Final Report in the said case on 29.12.2020."
5. In paragraphs-3 and 4 of his personal affidavit, the respondent No.3 has stated as under:
"3. That from bare perusal of the first information report the offence under Section 278 IPC was not found to be proved and further the Investigating Officer during the course of investigation had collected the consent order duly issued from Regional Officer U.P. Pollution Control Board, Jhansi in which the validity of the permit or upto 31.7.2021 for running the Crusher and hence the Investigating Officer headed to submit Final Report on 30.12.2020. For kind perusal of this Honble Court copy of the Final Report dated 30.12.2020 is being annexed herewith and the same is marked as Annexure No.-1 to this affidavit.
4. That it is humbly stated before this Hon'ble Court that the deponent had only complied with the orders passed by the Sub-Divisional Magistrate and thus, had lodged the said first information report on the Tehrir submitted by the Revenue Inspector."
6. In paragraphs-3, 4 and 5 of his personal affidavit, the respondent No.4 has stated that First Information Report in question was lodged by him on the direction of the Sub-Divisional Magistrate. In paragraphs-5, 6 and 7 of his personal affidavit, the aforesaid Sub-Divisional Magistrate, Jhansi has stated as under:
" 5.That the deponent in absence of any valid document had ordered respondent no. 4 i.e. the Revenue Inspector to take appropriate action pursuant to which the said impugned first information report has been lodged against the applicant.
6. That after the first information report was lodged the applicant had submitted a copy of the permit/license issued by U.P. Pollution Control Board which is valid up to 31.7.2021 and hence a final report in the matter has already been submitted on 30.12.2020. Copy of the Final Report dated 30.12.2020 is being annexed herewith and the same is marked as Annexure No.-1 to this affidavit.
7. That it is being brought to the kind notice of this Hon'ble Court that it appears that the 4th respondent i.e. Revenue Inspector failed to incorporate in the first information report that the dust which was creating air pollution, so as to noxious to the health of the persons passing along the Highway and thus, due to this fact the first information report dated dated 17.10.2020 failed to disclose the commission of the crime under Section 278 IPC."
7. None of the respondents or the Sub-Divisional Magistrate, Jhansi have disputed the legal position as mentioned in the afore-quoted order dated 11.01.2021. As per personal affidavit of the respondent No.2, a final report has been forwarded by the police to the competent authority for reason that no offence was made out under Section 278, I.P.C. The lodging of the First Information Report at the instance of the Sub-Divisional Magistrate, Jhansi was wholly illegal and unauthorised, yet the aforesaid S.D.M. in his personal affidavit has attempted to justify his action. This prima facie shows misconduct on the part of the aforesaid S.D.M. However, since as per personal affidavit of the respondent No.3, final report has already been submitted by the police, therefore, we do not propose to proceed further in this matter.
8. In view of the aforesaid, the writ petition is disposed of.
Order Date :- 21.01.2021 NLY