# M/S Albert David Ltd v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-02
- **Case number:** Application u/s 482 No. 869 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-albert-david-ltd-v-state-of-u-p-anr-opp-parties-51298
- **Pages:** 17

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 200,202 ,295,296 - The
Air (Prevention and Control of Pollution)
Act, 1981 - Section 31-A - Power to give
directions , Section 37 - Penalty for
2 All. M/S Albert David Ltd. Vs. State of U.P. & Anr.
1125
contravention of certain provisions of the
Act - Court will take cognizance of the
offence, but it does not mandate that the
cognizance has to be taken by using
express words that the Court takes
cognizance of the offence - mere nonexamination of any witness under Section
202 Cr.P.C. would not vitiate the order
summoning the accused persons to face
the trial. (Para -27 , 32)

(B) The Code of Criminal Procedure, 1973
- rudimentary principle - any judicial
authority must apply his mind to the
relevant
facts,
the
relevant
material
placed in support of the material and the
relevant provisions of law while passing
any order - at the stage of issuing process,
the Magistrate is mainly concerned with
the allegations made in the complaint or
the evidence led in support of the same
and he is only to be prima facie satisfied
whether there are sufficient grounds for
proceeding against the accused.(Para -
42,45)

(C) The Air (Prevention and Control of
Pollution)
Act,
1981
-
Offences
by
companies - Section 40, The Negotiable
instruments Act, 1981- Section 141 -
Offences by companies - Section 141 of
the
Negotiable
Instruments
Act
and
Section 40 of the Air Act contain pari
materia provisions. (Para - 46 to 48)

Complaint
was
filed
by
an
Assistant
Environmental Engineer of Board - authorized
by Board's resolution - cognizance - Applicantfirm and its 7 partners summoned - to face trial
- allegedly operating an 8TPH PNG fired boiler -
not obtained consent from Pollution Control Board -
violating Section 21 of Air Act - punishable under
Section 37 of Air Act. (Para - 1 to 10)

HELD: - Applicants are in charge of the as well as
responsible for the conduct of the day-to-day
business of the applicant and they are personally
liable for the violation of the provisions of law (Air Act)
which meets the requirement set by the Supreme
Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla,
Complaint's allegations are sufficient for trial, and
partners' actual liability will be determined after trial.
(Para - 49 to 51)
Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,544 of 57,265. This is a partial read: ask again with offset=39544 for what follows._

1124 INDIAN LAW REPORTS ALLAHABAD SERIES
having challenged the repudiation in
Complaint No. 515, the withdrawal of the
complaint unconditionally on 22-11-2010
was fatal to the appellant. The original
Complaint No. 515 of 2009 was filed on 116-2009 and the respondent Insurance
Company repudiated the claim only on 1510-2009."

36. Thus the aforesaid judgment
specifically states that it was passed
keeping in view the peculiar facts and
circumstances of that case, which are in no
manner similar to the facts of the present
case and, therefore, it is of no avail to the
applicants.

37. Therefore, this Court is of the
considered view that the applicants have
not acted fairly while approaching this
Court to invoke the inherent powers of this
Court under Section 482 Cr.P.C. for
quashing of the F.I.R. No. 39 of 2024 under
Sections 419, 420, 467, 468, 471, 427, 323,
504, 506 and 34 I.P.C., Police Station
Kotwali, District Barabanki after dismissal
of Criminal Miscellaneous Writ Petition
No. 642 of 2024, which was filed with the
same prayer and which was dismissed by a
Division Bench without liberty for filing a
fresh application for the same relief and
thereafter by concealing the fact of filing
and dismissal of the earlier Writ Petition in
the
application
under
Section
482.
Thereafter the applicants have filed the
supplementary affidavit containing a story
regarding the previous Writ Petition having
been filed by an Advocate without
instructions, which for the reasons stated
above, prima facie appears to be a cooked
up story. Keeping in view the entire facts
and
circumstances
stated
above,
the
applicants are not entitled to be granted any
relief by this Court in exercise of its
inherent powers.

38. Accordingly, the application under
Section 482 Cr.P.C. is hereby dismissed
with a cost of Rs.25,000/- which shall be
deposited by the applicants with the
registry of this Court within a period of 30
days, failing which the Senior Registrar
shall initiate proceedings for recovery of
the amount by sending a Recovery
Certificate to the Collector concerned, who
shall recover the amounts as arrears of land
revenue and shall remit the same to this
Court within a period of three months from
the date of issuance of the Recovery
Certificate.

39. The Senior Registrar of this Court
is directed to transmit the cost amount to
Children Home (Girls), Lucknow, which is
being run and maintained under the
Department
of
Women
and
Child
Development, Government of U.P.
----------
(2024) 2 ILRA 1124
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 869 of 2024

M/S Albert David Ltd. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Salil Kumar Srivastava, Rahul Srivastava

Counsel for the Opp. Parties:
G.A., Ashok Kumar Verma

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 200,202 ,295,296 - The
Air (Prevention and Control of Pollution)
Act, 1981 - Section 31-A - Power to give
directions , Section 37 - Penalty for
2 All. M/S Albert David Ltd. Vs. State of U.P. & Anr.
1125
contravention of certain provisions of the
Act - Court will take cognizance of the
offence, but it does not mandate that the
cognizance has to be taken by using
express words that the Court takes
cognizance of the offence - mere nonexamination of any witness under Section
202 Cr.P.C. would not vitiate the order
summoning the accused persons to face
the trial. (Para -27 , 32)

(B) The Code of Criminal Procedure, 1973
- rudimentary principle - any judicial
authority must apply his mind to the
relevant
facts,
the
relevant
material
placed in support of the material and the
relevant provisions of law while passing
any order - at the stage of issuing process,
the Magistrate is mainly concerned with
the allegations made in the complaint or
the evidence led in support of the same
and he is only to be prima facie satisfied
whether there are sufficient grounds for
proceeding against the accused.(Para -
42,45)

(C) The Air (Prevention and Control of
Pollution)
Act,
1981
-
Offences
by
companies - Section 40, The Negotiable
instruments Act, 1981- Section 141 -
Offences by companies - Section 141 of
the
Negotiable
Instruments
Act
and
Section 40 of the Air Act contain pari
materia provisions. (Para - 46 to 48)

Complaint
was
filed
by
an
Assistant
Environmental Engineer of Board - authorized
by Board's resolution - cognizance - Applicantfirm and its 7 partners summoned - to face trial
- allegedly operating an 8TPH PNG fired boiler -
not obtained consent from Pollution Control Board -
violating Section 21 of Air Act - punishable under
Section 37 of Air Act. (Para - 1 to 10)

HELD: - Applicants are in charge of the as well as
responsible for the conduct of the day-to-day
business of the applicant and they are personally
liable for the violation of the provisions of law (Air Act)
which meets the requirement set by the Supreme
Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla,
Complaint's allegations are sufficient for trial, and
partners' actual liability will be determined after trial.
(Para - 49 to 51)
Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

1. P. Pramila & ors. Vs St. of Karn. & anr., (2015) 17
SCC 651

2. National Bank of Oman Vs Barakara Abdul Aziz &
anr., (2013) 2 SCC 488

3. Sulochana Devi Vs D.M., 1993(1) Crimes108(Ori.)

4. Harsh Mandar Vs Amit Anilchandra Shah, (2017)
13 SCC 420

5. Fakhruddin Ahmad Vs St. of Uttaranchal, (2008)
17 SCC 157

6. Sunil Bharti Mittal Vs C.B.I., (2015) 4 SCC 609

7. India Carat (P) Ltd. Vs St. of Karn., (1989) 2 SCC
132

8. Nahar Singh Vs St. of U. P. & ors., (2022) 5 SCC
295

9. Devendra Vs St. of U.P., (2009) 7 SCC 495

10. U.P.P.C.B. Vs Dr. Bhupendra Kumar Modi, (2009)
2 SCC 147 S.M.S.

11. Pharmaceuticals Ltd. Vs Neeta Bhalla, (2005) 8
SCC 89

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Dr. Salil Kumar Srivastava, the
learned counsel for applicant, Sri Gyanendra
Singh, learned A.G.A. for the State and Sri
Ashok Kumar Verma, the learned counsel
for opposite party no.2.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicant has challenged the validity of the
summoning order dated 25.08.2022 passed
by
the
Special
Judicial
Magistrate,
Pollution/CBI, Lucknow in Complaint
no.1008 of 2020, whereby the applicantfirm and its 7 partners have been
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
summoned to face trial under Section 37 of
the Air Act.

3. On 10.02.2020, the opposite party
no. 2 - the U. P. Pollution Control Board
(which will hereinafter be referred to as
'the Board') filed a complaint under
Section 37 of the Air (Prevention and
Control of Pollution) Act, 1981 (which will
hereinafter be referred to as 'the Air Act'),
through
an
Assistant
Environmental
Engineer of the Board, against the applicant
firm and its 7 partners, stating that by
means of an order dated 15.02.2018 passed
by the Chief Environmental Officer, Circle1, the applicant - M/s Albert David Ltd was
granted consent under Section 21 of the Air
Act for 06TPH PNG fired boiler, which
was valid for the period from 01.01.2018 to
31.12.2019. However, during an inspection
made on 06.12.2019, it was found that the
applicant had installed a new 8TPH PNG
fired boiler and was operating the same
without
obtaining
consent
from
the
Pollution Control Board in violation of
Section 21 of the Air Act, which was
punishable under Section 37 of the Air Act.

4. On 25.08.2022, the learned Special
Judicial
Magistrate,
Pollution/CBI,
Lucknow passed the impugned order
summoning the accused persons to face
trial under Section 37 of the Air Act.

5. Dr. Salil Kumar Srivastava, the
learned Counsel for the applicant has
challenged the validity of the summoning
order on numerous grounds. The first
submission of the learned Counsel for the
applicant is that the complaint has been
filed
by
an Assistant
Environmental
Engineer of U.P. Pollution Control Board,
who is not authorized to file the complaint
as per the provisions contained in Section
43 of the Air Act. In reply to this
submission, the learned counsel for the
opposite party no.2 has submitted that
Section 15 of the Air Act provides that 'a
State Board may, by general or special
order, delegate to the Chairman or the
member-secretary or any other officer of
the Board subject to such conditions and
limitations, if any, as may be specified in
the order, such of its powers and functions
under this Act as it may deem necessary.'

6. In rebuttal, Dr Salil Kumar
Srivastava,
learned
counsel
for
the
applicant has submitted that the power
conferred under Section 15 of the Air Act is
a general power whereas the power to
institute prosecution has specifically been
provided under Section 43 of the Air Act.
Section 43 (1) (a) of the Air Act provides
that No Court shall take cognizance of any
offence under this Act except on a
complaint made by a Board or any officer
authorised in this behalf by it. Section 15
(1) of the Air Act provides that "A State
Board may, by general or special order,
delegate to the Chairman or the membersecretary or any other officer of the Board
subject to such conditions and limitations,
if any, as may be specified in the order,
such of its powers and functions under this
Act as it may deem necessary."

7. Dr. Srivastava has contended that
as the resolution dated 23.12.1981 passed
by the Board does not contain the name of
Sri. Ritesh Tiwari, the Board has not
delegated the powers to him and the powers
have been delegated to Sri. Ritesh Tiwari
by the Member Secretary of the Board,
who had no authority to delegate the
powers. In support of this contention, he
has relied upon the judgment of Hon'ble
Supreme Court in the case of P. Pramila
and others versus State of Karnataka
and another reported in (2015) 17 SCC
2 All. M/S Albert David Ltd. Vs. State of U.P. & Anr.
1127
651, wherein the Hon'ble Supreme Court
held that "there cannot be any doubt, that
when the authorities decided to initiate
proceedings under the provisions of the Air
Act, the complaint could have been made
either by the Board or by an officer
authorised by the Board."

8. In P. Pramila (Supra), vide
Notification/Resolution dated 29-3-1989,
the Karnataka State Pollution Control
Board had delegated certain powers to the
Chairman of the Board as per which a
complaint under Section 43(1) of the Air
Act could have been filed either by its
Chairman. The Chairman passed an order
dated 4-4-2006 authorising the Regional
Officer, Karwar to initiate criminal action
under Section 37 of the Air Act by filing
criminal case. In this factual background,
the Hon'ble Supreme Court held that: -

"The
Notification/Resolution
dated 29-3-1989 indicates that the officer
authorised was the Chairman of the Board.
The Board could delegate the above power
to the Chairman of the Board because
Section 43(1) of the Air Act authorised the
Board to do so. In that view of the matter,
either the Board or the Chairman of the
Board could have filed the complaints in
terms of the mandate contained in Section
43(1) of the Air Act. The power to file the
complaint could not be exercised by any
other authority/officer. Under the principle
of "delegatus non potest delegare", the
delegatee (the Chairman of the Board)
could not have further delegated the
authority vested in him, except by a clear
mandate of law. Section 43 of the Air Act
vested the authority to file complaints with
the Board. Section 43 aforementioned also
authorised the Board to delegate the above
authority to any "officer authorised in this
behalf by it". The "officer authorised in
this behalf" was not authorised by the
provisions of Section 43 of the Air Act, or
by any other provision thereof, to further
delegate the authority to file complaints.
The Chairman of the Board, therefore, had
no authority to delegate the power to file
complaints to any other authority for taking
cognizance of offences under the Air Act."

9. There can be no dispute against the
proposition of law that a delegate cannot
further delegate the authority vested in him.
However, in the present case, the Board
itself had passed a resolution dated
23.12.1981 authorizing the Law Officer,
the Assistant Scientific Officers and the
Assistant Environmental Engineers of the
Board to file cases in Courts and it was
further resolved that the case will be filed
by that officer who is nominated by the
Member Secretary. In furtherance of this
general order of delegation passed by the
Board, the Member Secretary of the Board
has nominated Sri. Ritesh Tiwari, Assistant
Environmental
Engineer
to
file
the
complaint. Therefore, the power has been
delegated to the Assistant Environmental
Engineer by the Board only and not by the
Member Secretary or the Chairman of the
Board or any delegate of the Board.
Therefore, the well settled principle of law
reiterated in P. Pramila (Supra) does not
apply to the facts of the present case.

10. Hence, I find no force in the first
submission of the learned Counsel for the
applicant and I hold that the complaint has
been filed by an Assistant Environmental
Engineer of the Board, who was authorized
by the Board's resolution dated 23.12.1981.

11. The learned counsel for the
applicant has next submitted that the
opposite party nos. 2 to 8 in the complaint,
who are partners of the applicant firm, are
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
residents of places falling outside the
territorial limits of jurisdiction of the
Special Judicial Magistrate and, therefore,
it was mandatory for the Court to have held
an enquiry under Section 202 (1) Cr.P.C.
before issuing summons to those accused
persons. In support of this contention,
learned counsel for applicant has relied
upon the judgment of Hon'ble Supreme
Court in the case of National Bank of
Oman versus Barakara Abdul Aziz and
another, reported in (2013) 2 SCC 488.

12. Per contra, Sri A. K. Verma, the
learned counsel for opposite party no.2 has
submitted that the applicant, who has
approached this Court under Section 482
Cr.P.C., is the firm M/s Albert David Ltd,
which is situated at Industrial Area,
Ghaziabad, which falls within the territorial
jurisdiction of the Magistrate, who has
passed the summoning order. None of the
partners of the firm, who claim to be
residents of places outside jurisdiction of
the Magistrate, have approached this Court
challenging
legality
of
the
order
summoning them to face the trial. The
applicant is undisputedly situated within
the limits of territorial jurisdiction of the
Magistrate concerned and therefore, there
is no illegality in summoning the applicant.
In absence of the persons, who claim
themselves to be residents of places outside
the limits of territorial jurisdiction of the
Magistrate concerned, this Court cannot
examine validity of the order summoning those
persons.

13. A copy of the complaint has been
annexed with the application, wherein the
applicant has been arrayed as opposite party
no.1 and its address is mentioned as B-12/13,
Site-3 Meerut Road Industrial Area, Police
Station Sihani Gate, Ghaziabad, through its
partners. The partners of the firm, who have
been impleaded as opposite party nos.2 to 8 in
the complaint, are all the residents of places
other than the Ghaziabad, falling outside the
limits of State of U.P. but they have not joined
the applicant in filing the application under
Section 482 Cr.P.C.

14. In Sulochana Devi Vs. District
Magistrate, 1993(1)Crimes108(Ori.), Hon'ble
Mr. Justice Arijit Pasayat dealt with the question
of locus standi for filing an application under
Section 482 Cr.P.C. in the following manner: -

"9 . Can a person who is not a party
to the proceeding invoke the jurisdiction of the
Court for exercise of powers under Section
482? Who has locus standi to do so ? The
concept of locus standi has undergone a seachange. It is needless to emphasise that the
requirement of locus standi of a party to a
litigation is mandatory : because the legal
capacity of the party to any litigation whether in
private or public action in relation to any
specific remedy sought for has to be primarily
ascertained at the threshold. The traditional
syntax of law in regard to locus standi for a
specific judicial redress, sought by an individual
person, or determinate class or identifiable
group of persons, is available only to that
person or class or group of persons who has or
have suffered a legal injury by reasons of
violation of his or their legal right or a right
legally protected, the invasion of which gives
rise to actionability within the categories of
law..."

15. What was further held by the
Orissa High Court in Sulochana Devi
(Supra), was quoted with approval by the
Hon'ble Supreme Court in Harsh Mandar
v. Amit Anilchandra Shah, (2017) 13
SCC 420: -

"41. In Sulochana Devi the
petitioner who was not a party to the
2 All. M/S Albert David Ltd. Vs. State of U.P. & Anr.
1129
proceedings had invoked the powers of the
High Court under Section 482 CrPC to
challenge
the
order
of
issuance
of
proclamation under Section 82 of the Code
and attachment of the property. Raising the
issue of locus standi, preliminary objection
was raised to the maintainability of the
application at the behest of the petitioner.
The Orissa High Court after considering
the scope of Section 482 CrPC as well as
the decisions of the Apex Court in Madhu
Limaye (1977) 4 SCC 551, Simranjit Singh
(1992) 4 SCC 653, and in Janata Dal v.
H.S. Chowdhary (1992) 4 SCC 305, held
that:

"... Even if there are million
questions of law to be deeply gone into and
examined in a criminal case registered
against specified accused persons, it is for
him/them to raise all such questions and
challenge
the
proceedings
initiated
at
appropriate time before the proper forum and
not for third parties either individually or under
the garb of public interest litigation. Ordinarily,
the aggrieved party, which is affected by any
order has the right to seek redress by
questioning the legality, validity or correctness
of the order unless such party is a minor and
insane person or is suffering from any other
disability which law recognises as sufficient to
permit another person e.g. next friend, to move
the court in his behalf."

16. The other 7 accused persons, who
are partners of the applicant firm, are not
suffering from any disability due to which
they are unable to approach this Court and
yet they have chosen not to join the
applicant firm in filing the application
under Section 482 challenging the validity
of order summoning them. In these
circumstances, the applicant firm cannot
challenge the validity of the order so far as
it summons the firm's partners who have
not approached this Court.

17. Even otherwise, in National
Bank of Oman (Supra) relied upon by the
learned Counsel for the applicant, the High
Court had taken the view that prima facie
the bare allegation of cheating did not make
out a case against the accused for issuance
of process under Sections 418 or 420 IPC.
Further, it was held that the Magistrate was
obliged to postpone the process against the
accused and either enquire into the case
himself or direct an investigation to be
made by a police officer or by such other
officer as he thinks fit for the purpose of
deciding whether or not there is sufficient
ground for proceeding in a case where the
accused is residing beyond the area in
which
the
Magistrate
exercises
his
jurisdiction. The Hon'ble Supreme Court
upheld the decision of the High Court.
However, the Hon'ble Supreme Court has
observed in National Bank of Oman
(Supra) that: -

"10. Section 202 CrPC was
amended
by
the
Code
of
Criminal
Procedure (Amendment) Act, 2005 and the
following words were inserted:

"and shall, in a case where the
accused is residing at a place beyond the
area
in
which
he
exercises
his
jurisdiction,"

The notes on clauses for the
abovementioned
amendment
read
as
follows:

"False
complaints
are
filed
against persons residing at far off places
simply to harass them. In order to see that
innocent persons are not harassed by
unscrupulous persons, this clause seeks to
amend sub-section (1) of Section 202 to
make it obligatory upon the Magistrate that
before summoning the accused residing
beyond his jurisdiction he shall enquire into
the case himself or direct investigation to
be made by a police officer or by such
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
other person as he thinks fit, for finding out
whether or not there was sufficient ground
for proceeding against the accused."

18. The object of holding an enquiry
under Section 202 is to ensure that innocent
persons, who are residents of far off places,
are not harassed by unscrupulous persons
by
filing
of
false
complaints.
The
complainant in the present case is U. P.
Pollution Control Board, and not any
unscrupulous individual. The nature of
complaint is that upon inspection of the
premises of the applicant firm, it was found
that the applicant had installed a new 08
TPH PNG fired boiler and was operating
the same without obtaining consent from
the Pollution Control Board in violation of
Section 21 of the Air Act, which was
punishable under Section 37 of the Air Act.
The firm is admittedly situated within the
territorial limits of jurisdiction of the
Magistrate. There is no allegation of
personal nature against any of the partners
of the firm who are residents of areas
falling beyond the territorial limits of
jurisdiction of the Magistrate and only this
much is revealed from the records that the
applicant's partners are responsible for
running of its plant. The limited enquiry
which the Magistrate can hold at this stage
is meant to ascertain whether any case for
summoning the accused persons is made
out. The enquiry report submitted by a
public servant was filed with the complaint
and that is sufficient to enable the
Magistrate to arrive at a conclusion that a
case for taking cognizance of the offence
and summoning the accused persons is
made out.

19. Thus I am of the considered view
that the object of inserting the amendment
in Section 202 Cr.P.C. for conducting an
enquiry has not been defeated in the present
case. The inherent powers of this Court
under Section 482 Cr.P.C. are meant to be
exercised to secure the ends of justice and
not to create hurdles in dispensation of
justice on mere technicalities which do not
defeat the ends of justice. Therefore, I find
myself
not
in
agreement
with
the
submission of the learned Counsel for the
applicant that the order summoning the
non-applicant accused persons is bad for
want of an enquiry under Section 202
Cr.P.C.

20. The next submission made by the
learned counsel for the applicant is that the
complaint alleges that the applicant was
operating without obtaining the requisite
consent from the U. P. Pollution Control
Board under Section 21 of the Air Act
whereas the applicant had due permission
under Section 21 of the Air Act and the
allegation levelled in the complaint is false
on the face of the record.

21. In reply to this submission, the
learned counsel for opposite party no.2 has
submitted that the applicant was granted
consent under Section 21 of the Air Act by
means of an order dated 15.02.2018 passed
by the Chief Environmental Officer, Circle1, which was valid for the period from
01.01.2018 to 31.12.2019, but the consent
was granted only for 06 TPH PNG fired
boiler. When it was found upon inspection
that the applicant has installed a new 08
TPH PNG fired boiler and was operating it
without
obtaining
consent
from
the
Pollution Control Board, the complaint was
lodged.

22. The record reveals that that the
applicant was granted consent under
Section 21 of the Air Act only for 06 TPH
PNG fired boiler. Section provides for
restriction of use of particular industrial
2 All. M/S Albert David Ltd. Vs. State of U.P. & Anr.
1131
plants, and it does not provide that after
consent has been granted to an applicant to
run an industry, it may install any other
new plant without obtaining consent in
respect thereof. The applicant had installed
and was operating a new 08 TPH PNG
fired boiler without obtaining consent from
the Pollution Control Board. These facts,
prima facie make out commission of
offence under Section 21 which is
punishable under Section 37 of the Air Act.
Therefore, this submission of the learned
Counsel for the applicant is also turned
down.

23. The learned Counsel for the
applicant has next submitted that the
learned Magistrate has summoned the
accused persons to face the trial without
taking cognizance of the offences.

24. Section 190 (1) Cr.P.C. reads as
follows: -

"190. Cognizance of offences by
Magistrates.- (1) Subject to the provisions
of this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
sub-section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint
of facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed."

25. In Fakhruddin Ahmad v. State
of Uttaranchal, (2008) 17 SCC 157, the
Hon'ble Supreme Court answered in the
following words the question as to 'what is
meant
by
the
expression
"taking
cognizance of an offence" by a Magistrate
within the contemplation of Section 190 of
the Code?'

"14.
The
expression
"cognizance" is not defined in the Code
but is a word of indefinite import. As
observed by this Court in Ajit Kumar Palit
v. State of W.B.: (AIR 1963 SC 765)

"19. ... The word 'cognizance'
has no esoteric or mystic significance in
criminal law or procedure. It merely
means-become aware of and when used
with reference to a court or Judge, to take
notice of judicially."

Approving the observations of the
Calcutta High Court in Emperor v.
Sourindra
Mohan
Chuckerbutty
[ILR
(1910) 37 Cal 412], the Court said that

"taking cognizance does not
involve any formal action, or indeed action
of any kind, but occurs as soon as a
Magistrate, as such, applies his mind to the
suspected commission of an offence."

(emphasis supplied)

15. Recently, this Court in Chief
Enforcement
Officer
v.
Videocon
International Ltd. (2008) 2 SCC 492,
speaking through C.K. Thakker, J., while
considering the ambit and scope of the
phrase "taking cognizance" under Section
190 of the Code, has highlighted some of
the observations of the Calcutta High
Court in Supdt. & Remembrancer of Legal
Affairs v. Abani Kumar Banerjee AIR 1950
Cal 437 which were approved by this Court
in R.R. Chari v. State of U.P. AIR 1951 SC
207. The observations are:

"7.
...
What
is
'taking
cognizance' has not been defined in the
Criminal Procedure Code, and I have no
desire now to attempt to define it. It seems
to me clear, however, that before it can be
said that any Magistrate has taken
cognizance of any offence under Section
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
190(1)(a) CrPC, he must not only have
applied his mind to the contents of the
petition, but he must have done so for the
purpose of proceeding in a particular way
as indicated in the subsequent provisions of
this Chapter, proceeding under Section 200,
and thereafter sending it for enquiry and
report under Section 202. When the
Magistrate applies his mind not for the
purpose
of
proceeding
under
the
subsequent sections of this Chapter, but for
taking action of some other kind e.g.
ordering
investigation
under
Section
156(3), or issuing a search warrant for the
purpose of the investigation, he cannot be
said to have taken cognizance of the
offence."

16. From the aforenoted judicial
pronouncements, it is clear that being an
expression of indefinite import, it is neither
practicable nor desirable to precisely
define as to what is meant by "taking
cognizance". Whether the Magistrate has
or has not taken cognizance of the offence
will depend upon the circumstances of the
particular case, including the mode in
which the case is sought to be instituted
and the nature of the preliminary action.
17. Nevertheless, it is well settled that
before a Magistrate can be said to have
taken cognizance of an offence, it is
imperative that he must have taken notice
of the accusations and applied his mind to
the allegations made in the complaint or in
the police report or the information
received from a source other than a police
report, as the case may be, and the material
filed therewith. It needs little emphasis that
it is only when the Magistrate applies his
mind and is satisfied that the allegations, if
proved, would constitute an offence and
decides to initiate proceedings against the
alleged offender, that it can be positively
stated that he has taken cognizance of the
offence. Cognizance is in regard to the
offence and not the offender."

26. In Sunil Bharti Mittal v. CBI,
(2015) 4 SCC 609, the Hon'ble Supreme
Court held that: -

"47....The
expression
"taking
cognizance" has not been defined in the
Code. However, when the Magistrate
applies his mind for proceeding under
Sections 200-203 of the Code, he is said to
have taken cognizance of an offence. This
legal position is explained by this Court in
Chief Enforcement Officer v. Videocon
International Ltd.(2008) 2 SCC 492, in the
following words:

"19. The expression 'cognizance'
has not been defined in the Code. But the
word (cognizance) is of indefinite import. It
has no esoteric or mystic significance in
criminal law. It merely means 'become
aware of' and when used with reference to
a court or a Judge, it connoted 'to take
notice of judicially'. It indicates the point
when a court or a Magistrate takes judicial
notice of an offence with a view to
initiating proceedings in respect of such
offence said to have been committed by
someone.

20. 'Taking cognizance' does not
involve any formal action of any kind. It
occurs as soon as a Magistrate applies his
mind to the suspected commission of an
offence."
48. Sine qua non for taking cognizance of
the offence is the application of mind by the
Magistrate and his satisfaction that the
allegations, if proved, would constitute an
offence. It is, therefore, imperative that on a
complaint or on a police report, the
Magistrate is bound to consider the
question as to whether the same discloses
commission of an offence and is required to
form such an opinion in this respect. When
2 All. M/S Albert David Ltd. Vs. State of U.P. & Anr.
1133
he does so and decides to issue process, he
shall be said to have taken cognizance. At
the stage of taking cognizance, the only
consideration before the court remains to
consider judiciously whether the material
on which the prosecution proposes to
prosecute the accused brings out a prima
facie case or not."

27. In the impugned order dated
25.08.2022, the Magistrate has considered
the facts stated in the complaint that upon
an inspection made on 06.12.2019 it was
found that the applicant no. 1 company was
operating a 08 TPH PNG boiler without
obtaining consent under Section 21 of the
Air Act, which is an offence punishable
under Section 37 of the Air Act, and that
the partners of the applicant are responsible
for its functioning. The inspection report
dated 06.12.2019, the recommendation for
filing the complaint, the authorization etc.
had been filed with the complaint. After
perusal of the complaint and the aforesaid
material produced before the Magistrate, he
recorded a satisfaction that the accused
persons operated the unit without obtaining
consent and thus
they
violated the
mandatory provisions of Sections 21 and
31-A of the Air Act. This satisfaction
recorded by the Magistrate amounts to
taking cognizance of the offences. The law
requires that the Court will take cognizance
of the offence, but it does not mandate that
the cognizance has to be taken by using
express words that the Court takes
cognizance of the offence. A bare perusal of
the order dated 25.08.2022 reveals that the
Magistrate has taken cognizance of the
allegations levelled in the complaint which
constitute the aforesaid offences and this is
sufficient to take cognizance of the offence.
Hence I find no force in the submission
made by the learned Counsel for the
applicant that the Magistrate has not taken
cognizance of the offences.

28. The learned Counsel for the
applicant has also submitted that the
Magistrate has not recorded any statements
under Section 200 or 202 Cr.P.C. and the
Magistrate has summoned he accused
persons without holding any enquiry and
that the summoning order passed without
taking cognizance of the offences is bad in
law.

29. Sections 200 and 202 of Cr.P.C.
are being reproduced below: -

"200.
Examination
of
complainant.-
A
Magistrate
taking
cognizance of an offence on complaint
shall examine upon oath the complainant
and the witnesses present, if any, and the
substance of such examination shall be
reduced to writing and shall be signed by
the complainant and the witnesses, and
also by the Magistrate:

Provided
that,
when
the
complaint is made in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses-

(a) if a public servant acting or
purporting to act in the discharge of his
official duties or a court has made the
complaint; or

(b) ...

* * *

202. Postponement of issue of
process.- (1) Any Magistrate, on receipt of
a complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under Section 192,
may, if he thinks fit, and shall, in a case
where the accused is residing at a place
beyond the area in which he exercises his
jurisdiction postpone the issue of process
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
against the accused, and either inquire into
the case himself or direct an investigation
to be made by a police officer or by such
other person as he thinks fit, for the
purpose of deciding whether or not there is
sufficient ground for proceeding:

Provided that no such direction
for investigation shall be made,-

(a) where it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session; or

(b) where the complaint has not
been made by a Court, unless the
complainant and the witnesses present (if
any) have been examined on oath under
Section 200.

(2) In an inquiry under subsection (1), the Magistrate may, if he thinks
fit, take evidence of witnesses on oath:"

30. In India Carat (P) Ltd. v. State
of Karnataka, (1989) 2 SCC 132, the
Hon'ble Supreme Court held that: -

"11. Chapter XV which contains
Sections
200
to
203
deals
with
"Complaints to Magistrates". A Magistrate
taking cognizance of an offence on
complaint is required by Section 200 to
examine the complainant and the witnesses
present, if any. Section 202 provides that a
Magistrate taking cognizance of a case,
upon complaint, may, if he thinks fit,
postpone the issue of process against the
accused, and either inquire into the case
himself or direct investigation to be made
by a police officer or by such other person
as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for
proceeding. Section 203 empowers the
Magistrate to dismiss the complaint, if after
considering the statements on oath (if any)
of the complaint and of the witnesses and
the result of the inquiry or investigation (if
any) under Section 202, the Magistrate is
of opinion that there is no sufficient ground
for proceeding.

12. Chapter XVI deals with
"Commencement of Proceedings before
Magistrates" and Section 204 empowers a
Magistrate to issue summons or a warrant
as the case may be, to secure the
attendance of the accused if in the opinion
of the Magistrate taking cognizance of the
offence there is sufficient ground for
proceeding.

13. From the provisions referred
to above, it may be seen that on receipt of a
complaint a Magistrate has several courses
open to him. The Magistrate may take
cognizance of the offence at once and
proceed to record statements of the
complaints and the witnesses present under
Section
200.
After
recording
those
statements, if in the opinion of the
Magistrate there is no sufficient ground for
proceeding, he may dismiss the complaint
under Section 203. On the other hand if in
his opinion there is sufficient ground for
proceeding he may issue process under
Section 204. If, however, the Magistrate
thinks fit, he may postpone the issue of
process and either inquire into the case
himself or direct an investigation to be
made by the police officer or such other
person as he thinks fit, for the purpose of
deciding whether or not there is sufficient
ground for proceeding. He may then issue
process if in his opinion there is sufficient
ground for proceeding or dismiss the
complaint if there is no sufficient ground
for proceeding. Yet another course open to
the Magistrate is that instead of taking
cognizance of the offence and following the
procedure laid down under Section 200 or
Section 202, he may order an investigation
to be made by the police under Section
156(3). When such an order is made, the
police will have to investigate the matter
2 All. M/S Albert David Ltd. Vs. State of U.P. & Anr.
1135
and submit a report under Section 173(2).
On
receiving
the
police
report
the
Magistrate may take cognizance of the
offence under Section 190(1)(b) and issue
process straightway to the accused. The
Magistrate may exercise his powers in this
behalf irrespective of the view expressed by
the police in their report whether an
offence has been made out or not. This is
because the police report under Section
173(2) will contain the facts discovered or
unearthed by the police as well as the
conclusion drawn by the police therefrom.
If the Magistrate is satisfied that upon the
facts discovered or unearthed by the police
there is sufficient material for him to take
cognizance of the offence and issue
process, the Magistrate may do so without
reference to the conclusion drawn by the
Investigating
Officer
because
the
Magistrate is not bound by the opinion of
the police officer as to whether an offence
has been made out or not. Alternately the
Magistrate, on receiving the police report,
may without issuing process or dropping
the proceeding proceed to act under
Section 200 by taking cognizance of the
offence on the basis of the complaint
originally submitted to him and proceed to
record the statement upon oath of the
complainant and the witnesses present and
thereafter decide whether the complaint
should be dismissed or process should be
issued."

31. The complaint has been filed by
the U. P. Pollution Control Board through
its Assistant Environmental Officer, who is
a public servant. Section 200 Cr.P.C. itself
provides that when the complaint is made
in writing, the Magistrate need not examine
the complainant and the witnesses if a
public servant acting or purporting to act in
the discharge of his official duties or a
court has made the complaint. Therefore,
there was no need for examination of the
complainant public servant in the present
case.

32.