- (1.) The appellants, while being engaged in the business of stocking iron ore, had allegedly violated certain norms prescribed by the Deputy Commissioner under Section 22 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the 'Air Act'). The allegation against the appellants was, that they had illegally established iron ore stack yard(s) at various places in Uttara Kannada District. It was alleged, that the appellants had not made provisions for pollution control measures, despite repeated requests and instructions given to them, by the officials of the Karnata State Pollution Control Board (hereinafter referred to as the 'Board'). It was therefore, that CC No.546/2006, CC No.547/2006, CC No.548/2006 and CC No.549/2006 were filed before the Judicial Magistrate, First Class-II, Karwar. The proceedings against the appellants were sought to be challenged by petitions filed under Section 482 of the Code of Criminal Procedure, wherein the appellants prayed for quashing of the above proceedings.
(2.) A number of similar criminal petitions, filed by the appellants and others, were sought to be disposed of by the High Court of Karnataka, Circuit Bench at Dharwad (hereinafter referred to as the 'High Court'), by a common order dated 7.1.2009. The above order dated 7.1.2009, is subject to challenge in these appeals. A perusal of the impugned order reveals, that the High Court did not examine the merits of the controversy. To dispose of the merits of the claim raised by the appellants before the High Court, it relied upon an earlier order passed by the High Court on 17.04.2007, disposing of Criminal Petition No. 4760 of 2006. Based thereon, the challenge raised by the appellants before this Court, was also sought to be rejected. The factual position indicated hereinabove is apparent from paragraphs 3 to 5 of the impugned order, which are being extracted hereunder: "3. The allegations against the respective petitioner is that, while being engaged in the business of stocking iron ore, the petitioners have violated the norms prescribed by the Deputy Commissioner and thus offence un/s 22 of the Pollution Control Act, has been committed and the further allegation in the complaint is that the petitioners have illegally established and operating iron ore stack yard at various places in Uttara Kannada District without the previous consent of the Karnataka State Pollution Control Board (for short, 'the Board') and that the accused petitioners have not provided any pollution control measures despite repeated requests and instruction given to them by the officials of the Board. Based on the complaint lodged by the Board, learned Magistrate of the trial Court directed issuance of process against the petitioners. It is this order of the trial Court that is called in question in all these petitions. 4. At the outset, learned counsel for the respondents submitted that the present petitions are liable to be dismissed as all the grounds urged in the present petitions by each one of the petitioner have been considered by this Court in a batch of petitions which were disposed of on 17.4.2007 in Crl. Petition No. 4760/06 and connected petitions. Therefore, the present petitions are also liable to be dismissed following the aforesaid order of this Court. 5. Learned counsel appearing for the respective petitioner have not disputed the fact of this court having already dismissed the other petitions filed by the petitioners which are similarly placed and all the contentions which are urged in the present petitions have been considered by the learned single Judge while dismissing batch of petitions on 17.4.2007."
(3.) During the course of hearing, learned counsel for the appellants invited our attention to the fact, that cognizance of an offence could be taken only by the Board or an officer authorised by the Board, in terms of Section 43 of the Air Act. Section 43 afore-mentioned, was the primary basis of the challenge raised before us. The same is being reproduced hereunder: "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 authorised 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 authorised 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.";