IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Crl.Rev.Pet.No. 1817 of 2011() --------------------------- CC.105/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY ............. REVISION PETITIONERS / ACCUSED 1, 5 & 6 : ----------------------------------------------------------------- 1. M/S.PHILIPS CARBON BLACK LTD., 31, NETAJI SUBHASH ROAD, CALCUTTA- 600 001, WITH UNIT OFFICE, AT 39/137 A, KRISHNA SWAMI CROSS ROAD, COCHIN-682 035 REPRESENTED BY ITS MANAGER-FINANCE & ACCOUNTS SAJEE VARGHESE. 2. ROY CHAUDHARI, CHIEF EXECUTIVE ENVIRONMENT, M/S.PHILIPS CARBON BLACK LTD., KRISHNA SWAMI CROSS ROAD, COCHIN-682035. 3. V.R.MENON, MANAGER (POLLUTION CONTOL), M/S.PHILIPS, CARBON BLACK LTD., KARIMUGHAL, BRAHMAPURAM P.O., KOCHI-682303. BY ADVS. SRI.S.SREEKUMAR, SENIOR ADVOCATE SRI. P. MARTIN JOSE SRI.P.PRIJITH SRI.K.M.MOHAMMED KUNHI RESPONDENTS / COMPLAINANT : ------------------------------------------------- 1. SABU THOZHUPPADAN, S/O.KURUVILLA, AGED 43 YEARS, RESIDING AT THOZHUPPADAN HOUSE, KARIMUGAL, PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.G.PRAMOD R2 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/08/2011, THE COURT ON 03/11/2011 PASSED THE FOLLOWING: Mn ...2/- Crl.Rev.Pet.No. 1817 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - I : COPY OF THE COMPLAINT DATED 2-2-2002 FILED BEFORE THE JFCM COURT, KOLENCHERY. ANNEXURE - II : COPY OF ORDER DATED 21-7-2001 ISSUED BY THE POLLUTION CONTROL BOARD. ANNEXURE - III : COPY OF UNDERTAKING SUBMITTED BY THE 1ST PETITIONER DATED 25-7-2001 BEFORE THE POLLUTION CONTROL BOARD. ANNEXURE - IV : COPY OF ORDER DATED 25-7-2001 ISSUED BY THE POLLUTION CONTROL BOARD. ANNEXURE - V : COPY OF THE ORDER DATED 24-9-2001 IN O.P. NO. 10736/99 OF THIS HON'BLE COURT. ANNEXURE - VI : COPY OF ORDER IN O.P. NO. 10736/99 DATED 4-10-2001 ISSUED BY THIS HON'BLE COURT. ANNEXURE - VII : COPY OF THE ORDER IN O.P. NO. 10736/99 DATED 14-10-2001 ISSUED BY THIS HON'BLE COURT. ANNEXURE - VIII : COPY OF THE ORDER IN O.P. NO. 10736/99 DATED 29-10-2001 ISSUED BY THIS HON'BLE COURT. ANNEXURE - IX : COPY OF COMMON JUDGMENT IN O.P. 12959/01, O.P.NO. 25447/01 AND OP. NO. 10736 OF 1999 DTD 15-01-2002. ANNEXURE - X : COPY OF THE ORDER DATED 28-02-2002 PASSED BY THE APPELALTE AUTHORITY, TRIVANDRUM. ANNEXURE - XI : COPY OF COMMON ORDER DATED 11-03-2002 IN O.P. 6331/02 AND O.P. 6338/02 ISSUED BY THIS HON'BLE COURT. ANNEXURE - XII : COPY OF JUDGEMENT IN O.P. NO. 6331 OF 2002 DATED 10-6-2002 PASSED BY THIS HON'BLE COURT. ANNEXURE - XII(a) : COPY OF CONSENT TO OPERATE DATED 31-07-09 ISSUED BY POLLUTION CONTROL BOARD. ANNEXURE - XII(b) COPY OF CERTIFICATE OF MERIT ISSUED BY THE KERALA POLLUTION CONTROL BOARD TO THE 1ST PETITIONER. ANNEXURE - XIII COPY OF ORDER IN CRL.M.C. NO. 3608/02 DATED 01-03-2004 PASSED BY THIS HON'BLE COURT. (Contd...) Crl.Rev.Pet.No. 1817 of 2011() ANNEXURE - XIV COPY OF ORDER DATED 5-12-2007 C.C. NO. 105 OF 2002 PASSED BY JFCM COURT, KOLENCHERRY. ANNEXURE - XV COPY OF ORDER IN CRL.R.P. NO. 305 OF 2008 DATED 14-02-2008 ISSUED BY THIS HON'BLE COURT. ANNEXURE - XVI COPY OF ORDER IN CRL.R.P. NO. 4461/07 DATED 24-02-2009 OF THIS HON'BLE COURT. ANNEXURE - XVII COPY OF ORDER DATED 19-09-2009 IN C.C. 105 OF 2002 PASSED BY THE JFCM COURT, KOLENCHERY. ANNEXURE - XVIII COPY OF ORDER IN CRL. R.P. NO. 3339/2009 DTD. 28-03-2011 PASSED BY THIS HON'BLE COURT. ANNEXURE - XIX COPY OF ORDER DATED 28-05-2011 IN C.C. 105/02 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY. RESPONDENT'S ANNEXURE'S : ANNEXURE - R[1](a) : COPY OF MEMO DATED 22/12/2006 FILED BY THE COUNSEL FOR POLLUTION CONTROL BOARD IN C.C. NO. 105/02 OF JFCM COURT, KOLENCHERY. ANNEXURE - R[1](b) : COPY OF COUNTER AFFIDAVIT DATED 5/9/2001 IN O.P. NO. 12959/2001 OF THIS HON'BLE COURT. ANNEXURE - R[1](c) : COPY OF APPLICATION DATED 23/8/2001 SUBMITTED BY THE PETITIONER TO KSPCB FOR “CONSENT TO OPERATE” UNDER SEC. 21 OF AIR ACT. ANNEXURE - R[1](d) : COPY OF ORDER NO. PCB/C/EK/290/2001 DATED 30/6/2001 OF KSPCB. ANNEXURE - R[1](e) : COPY OF NOTE PREPARED AND SIGNED BY K.V. INDULAL, MEMBER SECRETARY, KERALA STATE POLLUTION CONTROL BOARD ISSUED BY PUBLIC INFORMATION OFFICER, KSPCB, THIRUVANANTHAPURAM. ANNEXURE - R[1](f) : COPY OF ORDER NO. PCB/TVM/AIR/71/84 DATED 27/7/2001 OF KSPCB. ANNEXURE - R[1](g) COPY OF ORDER NO. PCB/HO/AIR/71/84 DATED 29/01/02 ISSUED BY KSPCB AGAINST THE 1ST PETITIONER. ANNEXURE - R[1](h) COPY OF CRL.R.P. NO. 3339/2009 WITHOUT THE ANNEXURE. //TRUE COPY// P.S. TO JUDGE Mn S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.1817 of 2011 ----------------------------------------------- Dated this the 3rd day of November, 2011 O R D E R Revision is by the accused, three in number, accused 1 , 5 and 6, as against whom alone, cognizance taken of the offence imputed on the complaint filed by the 1st respondent numbered as C.C.No.105 of 2002 is proceeded by the Judicial Magistrate of the First Class, Kolencherry. Challenge is against the order dated 28.5.2011 by the magistrate after recording the evidence of the complainant and his witnesses under Section 244(1) of the Code of Criminal Procedure {for short “the Code”}, that a prima facie case has been made out against the aforesaid accused for their trial. Propriety, legality, and correctness of that order is assailed by the accused in this revision. Crl.R.P.No.1817 of 2011 :: 2 :: 2. First respondent {hereinafter referred to as 'the complainant'}, is a practising advocate, who claims to be a social activist holding the post of the Chairman of an organisation named “കരണ മല ന കരണ വ ര ദ പര സ ത സരകണ സമ ത ” {Anti Carbon Pollution - Environmental Protection Council} at Karimugal, which is stated to be a congregation of 18 social and religious organisations functioning in and around Karimugal engaged in activities resisting and protecting the air and water pollution alleged to be caused in the said area by the operation and functioning of the factory of the 1st accused company. He filed a complaint against the aforesaid company, its managing director and also senior officers, all the accused together 19 in number, before the Crl.R.P.No.1817 of 2011 :: 3 :: Judicial Magistrate of the First Class, Kolencherry to proceed against them for violations under Sections 21 and 31A of the Air (Prevention and Control of Pollution) Act, 1981 {for short 'the Act'}, alleging that they have caused pollution by the operation of the factory in violation or without taking such orders as are necessary under law for operation of the company from the Pollution Control Board [for short 'the Board'], causing serious health hazards to the inhabitants in the locality infringing their right to life enshrined under the Constitution. First accused company had only two lines of production as Line No.I and II, but they proceeded with unauthorised expansion of its activity without the previous sanction of the Board, as covered under Section 21 of the Act, put into operation a third line for Crl.R.P.No.1817 of 2011 :: 4 :: production, and commissioned the additional reactors thereto, was the case of the complainant. The orders issued by the Pollution Control Board to close down the industry within 48 hours, for violation of the provisions of the Act, according to the complainant, were not complied with. The accused by the aforesaid acts have committed the offence under Section 37 of the Act was the case of the complainant. 3. The magistrate, after recording the sworn statement of the complainant had ordered process to the accused, all of them (19 in number). The accused challenged that order before this court filing two separate Crl.M.Cs, accused 1, 13 and 14 as one set, Crl.M.C.No.3608/04, and accused 4 to 13 and 15 to 19 as another set, Crl.M.C.No.4462/04, for quashing the proceedings against them. Those Crl.R.P.No.1817 of 2011 :: 5 :: two Crl.M.Cs after being heard together were disposed by Annexure 13 order dated 1st March, 2004. Proceedings in the complaint against the accused other than the present revision petitioners [A1, A5 & A6] were quashed by this court. Insofar as the continuation of the proceedings against the petitioners [A1, A5 & A6] some directions were also issued under the aforesaid order. It may be appropriate to refer to the directions made in the aforesaid common order disposing the Crl.M.Cs, as one among the directions therein has given rise to a number of proceedings from the complainant, at different stages, including the present one as against the order passed by the magistrate under consideration. The directions under Annexure 13 are as follows: Crl.R.P.No.1817 of 2011 :: 6 :: (1) All proceedings against the accused, except accused Nos.1, 5 and 6, in C.C.No.105/2002, on the file of the Judicial Magistrate of the First Class court, Kolencherry, are quashed. (2) The Member Secretary, Kerala State Pollution Control Board , shall produce all the relevant records in his possession, as would be demanded by the Magistrate, before the court below, for the purpose of establishing the violation of the provisions under Section 21 and 31A of the Act. (3) On receipt of the same, the Magistrate shall hear both sides, and find out, whether there is any prima facie case made out for the violation of the provisions of the Act, and therefore, these accused are to be proceeded under Section 37 of the Act. On finding the same, he shall proceed in accordance with law, Crl.R.P.No.1817 of 2011 :: 7 :: against these accused, accused Nos.1, 5 and 6. (4) If an application is moved by the accused for exempting them from personal appearance, that be granted, considering their necessity to be present in the company for work or for other avocations, as would be sought by them. The accused shall be present in court as and when their presence is legally required for the disposal of the case.” 4. Sequence of events that followed in the complaint, which was directed to be proceeded subject to the directions given as aforesaid, that too only against accused 1, 5 and 6, has dragged on the proceedings, and, even after a lapse of several years, nearing a decade, further proceedings in the complaint are boggled down with disputes raised, at different Crl.R.P.No.1817 of 2011 :: 8 :: stages, as to whether the complainant has tendered materials to show that a prima facie case has been made out for prosecution of the accused. 5. Pursuant to Annexure 13 order, the magistrate, after examining the materials produced, passed Annexure 14 order, that a prima facie case has been made out against the accused, and the case was posted for framing charge. That order was passed by the magistrate against all the accused named in the complainant though Annexure 13 order had quashed the proceedings against the accused other than the present revision petitioners [A1, A5 & A6]. Annexure 14 order was challenged by accused 5 and 6, filing Crl.R.P.No.305/08. That revision was disposed of by order dated 14.2.2008 quashing Annexure 14 order directing the Crl.R.P.No.1817 of 2011 :: 9 :: magistrate to pass revised orders in compliance with the directions in Annexure 13 order. Revision filed by the 1st accused as Crl.R.P.No.446/07, separately, was disposed by Annexure 16 order in similar lines indicated under Annexure 15 order. The magistrate thereafter passed a detailed order (Annexure 18) after examining the materials tendered by the complainant holding that the complainant has succeeded in making out a prima facie case against accused 1, 5 and 6 to proceed against them. Annexure 18 order passed by the magistrate was challenged by the present revision petitioners, accused 1, 5 and 6, as Crl.R.P.No.339/09 contending that the finding entered that a prima facie case has been made out to proceed against them for the offence imputed is unsustainable in law and facts. The Crl.R.P.No.1817 of 2011 :: 10 :: revision was disposed setting aside the order of the magistrate and remitting the case with the following observations: “In the result, this Criminal Revision Petition is disposed of setting aside the order dated 19.9.2009 in C.C.No.105 of 2002 of the court of the Judicial First Class Magistrate, Kolencherry and remitting the matter back to the trial court for fresh consideration of the entire matter and to pass fresh orders after referring to all the documents now available with the learned Magistrate as evidenced by Annexure R1(a) memo particularly document Nos.IX to XII mentioned therein, after hearing the revision petitioners as well as the complainant. It is made clear that the impugned order is set aside only for the limited purpose of enabling the learned Magistrate to pass fresh orders as directed above and it is further made clear that if the learned Magistrate, after considering the documents which are directed to be considered, is of the opinion that a prima facie case is made out against the accused and there are grounds to proceed against the Crl.R.P.No.1817 of 2011 :: 11 :: accused on the basis of Annexure I complaint and the documents which are already produced and particularly referred above, the learned Magistrate is free to come to the same finding as that of the impugned order notwithstanding the fact that the said order is set aside by this Court and the learned Magistrate is directed to pass appropriate orders untrammelled by any of the observations or findings that contained in this order. Since the above Calender Case is pending before the trial court for the last nine years, the learned Magistrate is directed is expedite the proceedings and to pass orders as expeditiously as possible, at any rate, within three months from 2.4.2011 on which date, the petitioners are directed to appear before the learned Magistrate for framing of charge. The learned Magistrate is also directed to postpone the framing of charge till the passing of fresh orders as directed above.” 6. The case being remitted for consideration to pass orders afresh, the learned magistrate, after examining the materials Crl.R.P.No.1817 of 2011 :: 12 :: afresh, and following the directions issued by this court, passed Annexure 19 order holding that a prima facie case has been made out from the materials tendered to proceed against accused 1, 5 and 6. The operative portion of the order of the magistrate in Annexure 19, its last paragraph, reads thus: “The contention of the accused is that, as per an undertaking given by the accused, as per order dated 25.07.2011 the Pollution Control Board ordered to keeping abeyance of the order dated 21.07.2001 for four months. Document No.11 would show the same and so it can be seen that the argument advanced by the Counsel for the accused is true. Document No.11 would show that the accused issued a letter dated 23,07.2001 to the Pollution Control Board and on the basis of that letter, and undertaking given by the accused, order dated 25-07- 2011 was passed. The document No.9 is the letter dated 23.07.01 issued by the first Crl.R.P.No.1817 of 2011 :: 13 :: accused to the Pollution Control Board. Document No.10 is the undertaking given by the accused. Thereafter as per order dated 27.07.2001 of the Pollution Control Board , which is document No.12 produced in this case would show that the Pollution Control Board withdrawn the order dated 25.07.2001 on keeping the direction of 21.07.2001 in abeyance for four months. So, it can be seen from the letter dated 23.07.2001 of the first accused that when the accused approached the Pollution Control Board before the expiry of 48 hours and obtained an order in favour of the accused and there is no prima facie evidence to show that the accused had violated order dated 21.07.2001. But from the entire documents there is prima facie evidence to show that even the Pollution Control Board as per order dated 30.06.2001 refused to issue consent for the expansion of the industry, the accused have commissioned one of the additional reactors in violation of the specific instruction and direction and consent refusal order dated 30.06.2001. Crl.R.P.No.1817 of 2011 :: 14 :: So I am of the view that prima facie, there is sufficient materials to proceed against accused Nos.1, 5 and 6. The point is found in favour of the prosecution.” 7. Annexure 19 order passed by the magistrate is challenged by the revision petitioners, accused 1, 5 and 6 questioning its propriety, legality and correctness. 8. I heard the counsel on both sides. 9. Learned counsel for the revision petitioners, adverting to some of the Annexures produced with the revision petition, Annexures 5 to 12, copies of the judgments rendered by this Court in relation to the disputes over the expansion of the operation of the 1st accused company in putting up a new line as Line No.III and what transpired during those proceedings in appointing of advocate commissioner, issue of series of instructions, orders, directions to the Crl.R.P.No.1817 of 2011 :: 15 :: Board and other authorities to have a performance audit over the steps taken for pollution control, installation of machineries for controlling the pollution etc. contended that the operation of Line No.III proceeded with and continued only on sanction finally accorded by this Court. When that be so, prosecution launched against the accused at the instance of the complainant who was also a party to such proceedings would amount to vexing and harassing the accused is the submission of the counsel. It was in the back drop of the aforesaid circumstances and taking note of the provisions covered by the Act, this court had directed under Annexure 13 order, and lastly under Annexure 18 order, to examine the relevant materials produced by the Board to determine whether a prima facie case has been made out to Crl.R.P.No.1817 of 2011 :: 16 :: proceed against the accused for the offence imputed against them, submits the counsel. So far as the imputations made that they have violated the orders of the Board in putting into operation Line No.3 and, thus, culpable for the offence under Section 21 of the Act, even the magistrate, on scrutiny of the materials produced, under the impugned orders, has found that the accused had approached the Board before 48 hours stipulated and obtained an order in favour of them and, as such, there is no prima facie case that they have violated the orders of the Board, submits the counsel. The magistrate, according to the counsel, has, however, wrongly concluded that the commissioning of Line No.3 was without sanction and after refusal of the consent for expansion of the industry, from the Board, and, so much so, a prima facie case has Crl.R.P.No.1817 of 2011 :: 17 :: been made in relation to such offence to proceed against the accused. Where it cannot be disputed that this court was seized of the disputes over the commissioning of Line No.3, and, on satisfaction of the directions/orders issued by this court and its operation continued after installing machineries to check the pollution hazards by expansion of the business of the company installing Line No.3, the conclusion formed by the magistrate that a prima facie case has been made out to proceed against them for the offence imputed from the materials, cannot at all be sustained, according to the counsel. When this court under Annexure 13 ordered the magistrate to examine whether a prima facie case has been made out to proceed further in the complaint against three of the accused alone, the company and two of its senior executives, Crl.R.P.No.1817 of 2011 :: 18 :: [A1, A5 & A6}, in fact, it was a direction to have a re-look into the entire allegations made in the complaint as to whether it was a fit case where cognizance of the offence/offences imputed against the accused required to be taken in the facts of the case, according to the counsel. In Annexure 13 order when such enquiry was ordered, remitting the case, after setting aside the previous order of the magistrate, for passing orders afresh determining whether a prima facie case is made after scrutiny of the materials tendered by the Board, this court, in fact, was directing the magistrate to look into the totality of the facts and circumstances of the case with scrutiny of the materials produced by the Board submits the counsel. Where on the admitted facts and circumstances presented in the case, and also the documents relied upon by Crl.R.P.No.1817 of 2011 :: 19 :: the prosecution, no case is made out against the accused [A1, A5 & A6}, the criminal proceedings initiated against them required to be dropped or quashed, is the submission of the counsel relying on K.Ramakrishna and others v. State of Bihar {2000(8) SCC 547}. 10. On the other hand, the learned counsel for the complainant would submit that no interference with the order passed by the magistrate holding that a prima facie case has been made out against the revision petitioners, accused 1, 5 and 6, is warranted in exercise of the revisional jurisdiction. The documents produced by the Board in compliance of the orders of the magistrate and so directed under Annexure 13 order by this court, to determine whether a prima facie case has been made out with respect to the violation of the provisions Crl.R.P.No.1817 of 2011 :: 20 :: of Sections 21 and 31 A of the Act support the allegations imputed in the complaint, and, the magistrate after scrutinising such materials has formed a conclusion that a prima facie case has been made out that the accused have commissioned one of the additional reactors in violation of the specific instruction/direction and order refusing consent by the Board. A prima facie case has been made out to proceed against the accused at least in respect of such offence by the materials produced, as concluded by the magistrate in the order, does not suffer from any infirmity, leave alone any illegality, warranting interference by this court in its supervisory jurisdiction, is the submission of the counsel. 11. In pith and substance, shorn off the plethora of allegations raised in the complaint Crl.R.P.No.1817 of 2011 :: 21 :: over the pollution caused by the operation of the 1st accused company and the health hazards faced by the inhabitants of the locality, the fulcrum of the case presented rested on the violations made by the company in disobeying the orders of the Board and commissioning of the reactors in Line No.3 extending the operation of the company, despite an order refusing consent by the Board, constituting the offence under Section 37 of the Act. So far as the violations under Section 21 of the Act imputed, going through the order of the magistrate, it is seen that after scrutiny of the materials, she has come to the conclusion that no prima facie case has been made out. But, with respect to the violations under Section 31A of the Act, evidence of the complainant and his witnesses and the documents produced by him and also those Crl.R.P.No.1817 of 2011 :: 22 :: summoned from the Board, made out a prima facie case to proceed further against the accused, is the view taken by the magistrate under the impugned order. The question emerging for consideration is, has the magistrate gone wrong in holding that a prima facie case has been made out against the accused, on the materials placed, to proceed against them in the complaint. What is the impact of the direction no.3 in Annexure 13 order given by this court and also those given in Annexure 19 order wherein the magistrate was directed to determine whether a prima facie case has been made out with special reference to the materials summoned from the Board is the pivotal question that has got decisive bearing in examining the legality and correctness of the order of the magistrate challenged in the revision. Crl.R.P.No.1817 of 2011 :: 23 :: 12. Before adverting to the question posed as aforesaid, it is to be noted that the Act containing penal provisions has been enacted to tackle the environmental problems relating to pollution caused by various pollutants discharged from industrial emissions, human activities connected