# M/S Daurala Sugar Works v. State of U.P. & Anr

- **Citation:** (2020) 10 ILRA 527
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-20
- **Case number:** U/S 482/378/407 No. 1954 of 2020
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-daurala-sugar-works-v-state-of-u-p-anr-45365
- **Pages:** 17

## Headnote

Law
-
Code
of
Criminal
Procedure,1973 -Section 245 - This
petition
filed
against
the
discharge
application U/S 245 of Cr.P.C. by the Uttar
Pradesh Pollution
Control Board under
Section 44 and consequential confirming
the order by the revisional court (Additional
Sessions Judge).

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 203/204 - At
this stage, the court considers the material
before it to decide whether there is
sufficient ground to proceed against the
accused. (Para 33)

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 245 of Cr.P.C.
(Discharge of accused) - After enquiry
U/S 244 of Cr.P.C., the court of consider
whether
the
evidence
before
it
if
unrebutted would warrant a conviction.
(Para 33)
Quality of consideration of evidence U/S
203/204
Cr.P.C.
and
245/246
Cr.P.C.
different. (Para 34)

In present case, prima facie evidence
available against accused / applicant to
warrant conviction. No ground made out for
interference.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 397 - Criminal
Revision - Interference by revisional court -
only
if
order
is
perverse.
No
illegality/perversity
found
in
the
order
passed by the court below.

Criminal Revision dismissed.( E-2)

List of Cases cited :-

## Text

_Characters 0–39,673 of 54,046. This is a partial read: ask again with offset=39673 for what follows._

10 All. M/S Daurala Sugar Works Vs. State of U.P. & Anr.
527
appropriate Application, at the time of
framing of charge or subsequently, as the
law permits, which, if moved, shall be
decided by the Trial court, in accordance
with the provisions of law.
----------
(2020)10ILR A527
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.10.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

U/S 482/378/407 No. 1954 of 2020

M/S Daurala Sugar Works ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Sudeep Kumar, Avdhesh Kumar Pandey

Counsel for the Opposite Party:
-----

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 245 - This
petition
filed
against
the
discharge
application U/S 245 of Cr.P.C. by the Uttar
Pradesh Pollution
Control Board under
Section 44 and consequential confirming
the order by the revisional court (Additional
Sessions Judge).

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 203/204 - At
this stage, the court considers the material
before it to decide whether there is
sufficient ground to proceed against the
accused. (Para 33)

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 245 of Cr.P.C.
(Discharge of accused) - After enquiry
U/S 244 of Cr.P.C., the court of consider
whether
the
evidence
before
it
if
unrebutted would warrant a conviction.
(Para 33)
Quality of consideration of evidence U/S
203/204
Cr.P.C.
and
245/246
Cr.P.C.
different. (Para 34)

In present case, prima facie evidence
available against accused / applicant to
warrant conviction. No ground made out for
interference.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 397 - Criminal
Revision - Interference by revisional court -
only
if
order
is
perverse.
No
illegality/perversity
found
in
the
order
passed by the court below.

Criminal Revision dismissed.( E-2)

List of Cases cited :-

1. Amrey Pharmaceuticals & ors. Vs St. of
Raj, (2001) 4 7 SCC 382.

2. St. of Har. Vs Unique Formed (P) Ltd.,
(1999) 8 SCC 190.

3. Dr. Z. Kotasek Vs The St. of Bihar, 1984
Cri LJ 683.

4. U.P. Pollution Control Board Vs Dr.
Bhupendra Kumar Modi & anr., (2009) 1
SCC (Cri) 679.

5. C.B.I. Vs A. Ravishankar Prasad, (2009) 6
SCC 351.

6. Inder Mohan Goswami Vs St. of Uttar.,
2007 (5) CTC 614 (SC) (2007) 12 SCC 1
(2008) 1 SCC (Cri) 259.

7. Dinesh Dutt Vs St. of Rajas., (2001) 8
SCC 570.

8. M.C. Mehta Vs Kamal Nath & ors, (1997)
1 SCC 388.

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. The instant petition under Section
482/483 of the Cr.P.C. has been filed
against order dated 11.11.2019 passed by
528 INDIAN LAW REPORTS ALLAHABAD SERIES
Special
Judicial
Magistrate
(Pollution)/CBI, Lucknow in Complaint
Case No.774 of 1989 (Uttar Pradesh
Pollution Control Board, Lucknow v. M/S
Daurala Sugar Works (Distillery Division)
and Ors.) rejecting the application of the
petitioners for their discharge under Section
245 of the Cr.P.C. from the prosecution
lodged by the Uttar Pradesh Pollution
Control Board, Lucknow under Section 44
of the Water (Prevention and Control of
Pollution) Act, 1974 (hereinafter referred
as 'Act of 1974') and the consequential
confirming order passed by the Additional
Sessions Judge, Court No.1, Lucknow
dated 17.07.2020 in Criminal Revision
No.688 of 2019 (M/S Daurala Sugar Works
(Distillery Division) and Ors. v. State of
U.P. & Anr.) dismissing the criminal
revision preferred by the petitioners under
Section 397 of the Cr.P.C.

2. Brief facts as borne out from the
petition are as under:-

(i) M/s Daurala Sugar Works
(Distillery Division) is owned by M/s DCM
Limited, Delhi having its registered Office
at Kanchenjunga Building, 18, Barakhamba
Road, New Delhi. The Distillery was
installed in the year 1943. There is
rearrangement of Company 'DCM Limited'
along with three other Companies, i.e.,
DCM Industries Limited, DCM Shriram
Industries Limited and Shriram Industrial
Enterprises Limited, approved by Delhi
High Court vide order dated 16.04.1990
under Section 391-394 of Companies Act,
1956 (hereinafter referred to as "Act,
1956"). Daurala Sugar Works, Daurala is
now a unit of M/s DCM Shriram Industries
Limited, New Delhi with effect from
01.04.1990.

(ii)
Since
installation
of
Distillery, the Trade Effluent discharged by
it, is used to be consumed by nearby
growers to irrigate their fields and for that
purpose petitioner/company constructed a
channel running in about five kilometers.
This channel joins a drain (sewer) known
as kali Nadi which is neither a river nor
watercourse nor stream.

(iii) The Parliament enacted Act,
1974 and State of U.P. framed Rules,
namely U.P. Water (Consent for Discharge
of Sewage and Trade Effluent) Rules, 1981
(hereinafter referred to as "Rules of 1981").
It constituted 'Board' for the purpose of
giving effect to provisions of Act of 1974
and Rules framed by State Government.
Sections 25 and 26 of Act of 1974 required
a running Industry to obtain consent from
Board for discharging 'Trade Effluent' in a
stream or well or sewer or on land. State
Government issued Notification dated
21.09.1981 specifying 31.12.1981 as the
date on or before which consent application
should be filed by existing industries.
Board vide Notification dated 06.04.1983
laid down effluent standards for discharge
in stream and on land fixing BOD level at
100 MG per liter for existing Distilleries.

(iv) For the purpose of setting up
"Effluent Treatment Plant", the petitioners
made an application to Collector on
13.07.1981 requesting for allotment of
31.38 acres land in Village Daurala and
Machri, adjacent to petitioner-Distillery
which was taken by State Government
under U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (hereinafter referred to
as
"Act
of
1960").
Correspondence
continued but petitioners could not get land
as
desired
for
setting
up
"Effluent
Treatment Plant" whereupon the petitioners
made its own efforts with individual
farmers and could get land in June 1984
and June 1985 measuring 18.43 acres. The
Board passed an order rejecting the
application of petitioners for consent vide
10 All. M/S Daurala Sugar Works Vs. State of U.P. & Anr.
529
order dated 07.05.1983 and 16.08.1984.
The petitioners again moved an application
on 09.03.1985 to the Board requesting for
grant of consent in which it also mentioned
a time bound programme for setting up
"Effluent Treatment Plant". The Board
again declined consent vide order dated
25.06.1985/10.07.1985.
The
petitioner,
however was permitted to continue on the
plant of setting up "Effluent Treatment
Plan".

(v) Board issued a notice to the
petitioners under Sections 25 and 26 read
with 44 of Act, 1974 with further advise to
complete
installation
of
"Effluent
Treatment Plant". Since petitioners' unit
continuously was running without consent
of the Board under Section 25/26, Board
filed application in March 1986 under
Section 33 of Act, 1974 before Chief
Judicial Magistrate for a direction to
petitioner-distillery to stop discharge of
effluent.
An
order
was
passed
by
Magistrate
on
29.03.1986
restraining
Distillery from discharging effluent in
sewer. The petitioners filed objection and
thereafter learned Magistrate passed order
on 17.05.1986 suspending interim order
dated 29.03.1986 and directing petitioners
to submit progress report of "Effluent
Treatment
Plant"
to
Board.
The
petitioner/D.C.M. Ltd. was also directed to
ensure that it does not discharge polluted
effluent without treatment.

(vi) The Magistrate passed an
order on 31.08.1987 directing petitionerfactory to bring down pollution level in
'Trade Effluent' upto prescribed standard by
15.10.1987. On 09.09.1987, sample was
taken and BOD content in the sample were
found as 775 MG/Liter and 725 MG/Liter.
The petitioners made all efforts to bring
down BOD level but could not reduce BOD
level as required, though it could be
reduced by over 97 per cent. The
petitioners
sought
further
time
from
Magistrate to bring down BOD level as
required. The Magistrate did not extend
time and passed stop order on 17.10.1987.

(vii) A Writ - C No.9513 of 1989
was filed before this Hon'ble Court
assailing orders passed by Uttar Pradesh
Pollution Control Board rejecting the
consent application filed by the petitioner
and also for quashing the consequential
proceedings under Section 33 and Section
44 of the Act of 1974. The said writ
petition was dismissed vide order dated
21.07.2016. The said order was challenged
in Petition for Special Leave to Appeal (C)
bearing No.1944 of 2014 and the same was
disposed of vide order dated 05.07.2018.

(viii) The Pollution Board filed a
complaint under Section 44 of the Act of
1974 before the Chief Judicial Magistrate,
Meerut in the year 1989 by alleging inter
alia that M/s Daurala Sugar Works
(Distillery Division), Daurala is a unit of
M/s DCM Ltd., which is a company within
the meaning of Section 47 of the Act of
1974 and has been discharging the
polluting material (effluent) ultimately into
stream Kali River. According to the
allegations made in the complaint, initially
the consent application of the Industry
under Section 25/26 of the Act of 1974 was
rejected on June 25, 1985 and thereafter,
the industry was inspected on April 3, 1986
and the representatives of the Pollution
Board collected sample of the effluent
discharged
by
the
Industry.
It
was
contended in the complaint that the trade
effluent was found not meeting the norms
laid down by the Pollution Board and
therefore, the consent given by the industry
dated January 4, 1986 was rejected by the
Pollution Board through order dated May 6,
1986. It is further contended that since the
industry was running without consent of
the Pollution Board as is required under
530 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 25/26 of the Act of 1974, therefore,
the complaint under Section 44 of the Act
of 1974 was filed against the petitionerscompany. The complaint was filed against
the then Chairman, Senior Managing
Director and Directors. In support of the
complaint, the Pollution Board has relied
upon letter dated June 25, 1985 by which
the
consent
application
was
initially
rejected, inspection report, notice of
inspection, notice dated December 11, 1985
under Section 25/26 of the Act of 1974,
order dated May 6, 1986 and the Board
resolution dated June 8, 1987.

(ix) The said complaint filed by
the Pollution Board under Section 44 of the
Act of 1974 in the Court of Chief Judicial
Magistrate, Meerut was transferred to the
Special
Judicial
Magistrate
(Pollution)/CBI,
Lucknow
and
after
transfer of the complainant, a Complaint
Case No.774 of 1989 was registered before
the
Special
Judicial
Magistrate
(Pollution)/CBI, Lucknow.

(x) During the pendency of the
said Complaint Case No.774 of 1989
before the Court of Special Judicial
Magistrate (Pollution)/CBI, Lucknow, the
Law Officer namely Shri Chandra Bhal
Singh, who was authorized by the Pollution
Board to file the complaint under Section
44 of the Act of 1974, expired some time in
the year 1998.

(xi) On behalf of the Pollution
Board, statements of Shri J.S. Yadav and
Shri Prakhar Kumar were recorded as
P.W.-1 and P.W.-2 under Section 244 of
the Cr.P.C.. Both the witnesses produced
by the Pollution Board were duly cross
examined by the petitioners.

(xii)
After
completion
of
evidence under Section 244 of Cr.P.C., a
discharge application under Section 245 of
Cr.P.C. was filed by the petitioners on
September 26, 2019 on the grounds that the
prosecution had made an attempt to
establish their case on the basis of
photocopies of documents, which is wholly
impermissible in view of the provisions of
Section 64/65 of the Indian Evidence Act,
1872. The U.P. Pollution Control Board
filed an objection on October 4, 2019.

(xiii) The Court of Special
Judicial
Magistrate
(Pollution)/CBI,
Lucknow rejected the discharge application
filed by the petitioner under Section 245 of
Cr.P.C. on November 11, 2019. Being
aggrieved by the said order passed by the
Court below, the petitioners have preferred
Criminal Revision No.688 of 2019. The
said
revision
was
also
rejected
by
revisional
Court
vide
order
dated
17.07.2020. Hence, the instant petition has
been filed challenging both orders dated
11.11.2019 and 17.07.2020 passed by the
Courts below.

3. Shri Prashant Chandra, learned
Senior Counsel assisted by Shri Sudeep
Kumar, learned counsel appearing for the
petitioners
has
submitted
that
while
rejecting consent application preferred by
the petitioners, the statutory procedure for
conducting an inquiry for disposing of
discharge application as provided under
U.P. Water (Consent of Discharge of
Sewage and Trade Effluents) Rules, 1981
was not followed. It is submitted that their
valuable right of re-testing of the sample
allegedly collected by the Pollution Board
in view of the procedure given in SubSections 3, 4 & 5 was contravened.

4. Learned Senior Counsel by relying
upon Amrey Pharmaceuticals and Ors. v.
State of Rajasthan - (2001) 4 SCC 382 and
State of Haryana v. Unique Formed (P)
Ltd. - (1999) 8 SCC 190 has submitted that
no criminal prosecution can continue
against the petitioners once it is established
10 All. M/S Daurala Sugar Works Vs. State of U.P. & Anr.
531
that their valuable right of re-testing of
sample has been denied. Learned Senior
Counsel has submitted that the aforesaid
ratio has been discarded by both the Courts
below on the ground that the aforesaid
judgments are related with the provisions
of
Drug
and
Cosmetic
Act,
1990,
Insecticide Act, 1968 and Prevention of
Food Adulteration Act, 1954 without
appreciating that the provisions of retesting in the Act of 1974 are almost pari
materia to the Drug and Cosmetic Act,
1990, Insecticide Act, 1968 and Prevention
of Food Adulteration Act, 1954.

5. Learned Senior Counsel has further
submitted that the revisional Court has
specifically observed that though all the
issues raised by the petitioners while
pressing the discharge application under
Section 245 of Cr.P.C. have not been
addressed by learned Magistrate while
dismissing the discharge application, even
then no jurisdictional error was found by
the learned Revisional Court on the ground
that there is no alleged illegality or
impropriety in the final outcome of the
discharge application, and while doing so,
the learned Revisional Court has failed to
appreciate that unless all the points raised
by the petitioners would have been
considered and discussed by the learned
Magistrate,
rejection
of
discharge
application on some of the grounds by
ignoring the material grounds cannot be
said to be justified as it is the duty of the
Courts to consider and decide all the points
pleaded.

6. It has further been submitted that
no finding has been recorded by the Courts
below
on
the
specific
submission/contention of the petitioners
regarding admissibility of evidence in view
of Section 21(3) of the Act of 1974 as well
as filing the Complaint against wrong
persons.

7. Learned Senior Counsel has further
submitted that no finding has been given by
both the Courts below on the aspect as to
whether authorization/sanction given to
Shri Chandra Bhal Singh (now dead) for
filing complaint under Section 44 of the
Act of 1974 against M/s Daurala Sugar
Works, Meerut can hold good or competent
against the present petitioners.

8. It has been submitted that perusal
of the impugned orders passed by learned
Magistrate as well as learned Revisional
Court, would reveal that both the Courts
below
while
rejecting
the
discharge
application as also the criminal revision,
have misread the provisions of Act of 1974
because no case of framing of charge is
made out after taking into consideration the
entire evidence.

9. Learned Senior Counsel has
submitted that petitioners no.3 to 8 are aged
persons and are residing at different part of
India and it is not practicably possible for
them to come to Lucknow for facing trial.

10. The specific argument of learned
Senior
Counsel
appearing
for
the
petitioners is that there is substantial
difference at the stage of issuing process
under Section 204 of Cr.P.C. and at the
stage of framing of charge under Section
245 of Cr.P.C., The scope of Section 245 of
Cr.P.C. is more enlarge to the state of
inquiry conducted by the trial Court under
Sections 200/202 of Cr.P.C.. It is submitted
that under Section 245 of Cr.P.C., a
statutory duty is casted upon the trial Court
to consider the discharge of the accused if
after taking of the evidences referred to in
Section 244 of Cr.P.C., the Magistrate
532 INDIAN LAW REPORTS ALLAHABAD SERIES
considers, for reasons to be recorded, that
no case against the accused has been made
out.

11. Learned Senior Counsel has
submitted
that
while
deciding
the
application under Section 245 of Cr.P.C.,
the
Magistrate
concerned
has
not
considered the aforesaid legal position and
the revisional Court has also erred to not
take into consideration the aforesaid legal
position while rejecting the criminal
revision filed by the petitioners/applicants.

12. It has further been submitted that
an application for discharge was filed by
the petitioners on the ground that no case
under Section 44 of the Act of 1974 is
made out against the petitioners. The cause
of action for filing the complaint under
Section 44 of the Act of 1974 pertains to
the year 1985-1986 and therefore, in view
of the provisions of Section 49 of the Act
of 1974, the authorization/consent for
initiating prosecution has been given by the
Board against M/s Daurala Sugar Works
and whereas the complaint has been filed
against
M/s
Daurala
Sugar
Works
(Distillery Division), Meerut and against
M/s DCM and also against its directors and
officers.

13. It is submitted that from perusal of
the
authorization
annexed
with
the
complaint reveal that relying on some
resolution of the year 1981, the Board has
authorized Shri Chandra Bhal Singh, Law
Officer to file prosecution against M/s
Daurala Sugar Works, Meerut. It is
submitted that P.W.-2 Shri Prakhar Kumar,
Assistant Environmental Engineer in his
cross examination has deposed that Daurala
Sugar Works, Meerut and Daurala Sugar
Works (Distillery Division), Meerut are
two different entities and their consent
applications are decided separately. On the
basis
of
the
note
sheet
by
which
authorization has been given, it is evident
that the said authorization relates to the
Daurala Sugar Works and not Daurala
Sugar Works (Distillery Division). Learned
Senior Counsel has submitted that this
point has also not been considered by both
the Courts below.

14. Learned Senior Counsel has also
submitted that the Courts below have also
not considered that the statute categorically
prohibits for consideration of result of any
analysis of a sample of any sewage or to a
different to be admissible in evidence
unless the provisions of sub-sections 3, 4
and 5 of the Act of 1974 have been
complied with. It has been submitted that
the statutory rules farmed for disposal of
the consent application namely U.P. Water
(Consent for Discharge of Sewage and
Trade Effluents) Rules, 1981 do not
provide for collection of sample of the
trade effluent, even then the sample was
collected in utter violation to provisions of
sub-section 3, 4 and 5 of Section 21 of the
Act of 1974.

15. It is further submitted that both
the Courts below have considered the
evidence of the prosecution witness
namely Shri Jai Singh Yadav, and though
the
said
witness
has
categorically
admitted that there is no analysis report,
no notice for collecting sample to the
representative of the unit, second part of
the sample to the representative of the
unit
and
therefore,
the
consent
application was wrongly rejected, even
then the learned trial Court as well as the
revisional Court have not considered the
aforesaid evidence in true spirit for the
purpose of consideration of discharge
application.
10 All. M/S Daurala Sugar Works Vs. State of U.P. & Anr.
533

16. Learned Senior Counsel appearing
for the petitioner has submitted that for
proving
any
document,
there
is
a
requirement of original to be produced
before the trial Court and perusal of the
complaint as well as the evidences under
Section 244 of Cr.P.C., would reveal that
only photocopies have been filed by the
complainant/Pollution Board, even then the
learned trial Court as well as the revisional
Court has considered the evidences filed by
the
complainant/Pollution
Board
in
disregard to the provisions of Section 64/65
of the Indian Evidence Act.

17. Learned counsel for the respondents
has vehemently opposed the submissions made
by learned counsel for the petitioners and
submitted that the instant petition is nothing but
a gross misuse of process of law. He has
submitted that the petitioners are knowingly
avoiding the trial in Complaint Case No.774 of
1989 before the Court of Special Judicial
Magistrate (Pollution)/CBI, Lucknow.

18. It has been submitted that on earlier
occasion Writ C No.9513 of 1989 was filed
before this Court and the same was dismissed
with cost vide judgment and order dated
21.07.2016
passed
by
Division
Bench.
Thereafter, the petitioner preferred Special
Leave to Appeal (C) No(s).1944 of 2017 before
the Hon'ble Supreme Court. The said SLP was
also disposed of vide order dated 05.07.2018
dispensing with presence of petitioners no.3 to
8 herein before the trial Court. It was also
directed that the trial be expedited and
concluded as early as possible, preferably
within a period of 1 and 1/2 years.

19. Learned counsel for the respondents
has submitted that since presence of petitioners
no.3 to 8 herein has already been dispensed
with by the Hon'ble Supreme Court itself,
therefore, the ground taken by the petitioners in
the instant petition under Section 482/483
Cr.P.C., that the petitioners are old aged persons
and therefore, the entire proceedings against
them may be quashed, has no force. It has been
submitted that there are no illegalities in the
impugned orders dated 11.11.2019 passed by
Special Judicial Magistrate (Pollution)/CBI,
Lucknow and 17.07.2020 passed by Additional
Sessions Judge, Court No.1, Lucknow. Both the
Courts below have passed impugned orders
after considering the entirety of the matter and
after coming at the conclusion that prima-facie
a case is made out against the petitioners and
sufficient material is available to initiate the trial
and their conviction.

20. It is further submitted that at the stage
of Section 245 Cr.P.C., the Court below is to
take into consideration whether the material is
sufficient to initiate the trial against the accused.
The trial Court while rejecting the application
considered each and every points categorically
and found that there is no merit in the
contentions made in the said application and
therefore, the same was rejected. It is also
submitted that the revisional Court has also not
found any error in order dated 11.11.2019
passed by the Magistrate concerned.

21. Learned counsel for the respondent
has submitted that all points which are raised by
the petitioners herein maybe dealt with by the
Special Judicial Magistrate (Pollution)/CBI,
Lucknow at the appropriate stage during trial. It
has been submitted that there is no force in the
instant petition and the same may be dismissed.

22. I have heard learned counsel for
the parties in extenso and perused the
record.

23. Before adverting to consider the
contentions raised by learned counsel for
the petitioners it is relevant to discuss the
relevant provisions.
534 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Section 44 of the Act provides
that whoever contravenes the provisions of
Section 25 or Section 26 of the Act of 1974
shall be punishable with imprisonment for
a term which shall not be less than six
months but which may be extend to six
years and with fine.

25. Section 25 of the Act of 1974
deals with the restrictions on new outlets
and new discharges and postulates that
subject to the provisions of this section, no
person shall, without the previous consent
of the State Board, bring into use any new
or altered outlet for the discharge of sewage
or trade effluent into a stream or well.

26. Section 26 of the Act of 1974
provides that where immediately before the
commencement of this Act any person was
discharging any sewage or trade effluent
into a stream or well, the provisions of
Section 25 shall, so far as may be, apply in
relations to such person as they apply in
relation to the person referred to in that
section subject to the modification that the
application for consent to be made under
sub-section (2) of that section shall be
made within a period of three months of the
constitution of the State Board.

27. Now before discussing the
provisions of Section 49 of the Act of 1974
it is necessary to make it clear that the
provisions of Section 49 of the Act of 1974
has undergone drastic changes by Act
No.53 of 1988 published in the Gazette of
India
on
03.10.1988
whereby
old
provisions of Section 49 have been
repealed and in its place new provisions
have been substituted. Thus, since the
amendment came into force with effect
from 03.10.1988 and the complaint in
question was filed on 26.05.1988, i.e. prior
to the amendment, therefore, the complaint
in question was required to have been filed
in
accordance
with
the
unamended
provisions of Section 49 of the Act, so, for
the decision of this case, provisions of
Section 49 as they stood on the date of
complaint, are relevant and they read as
under:

"49.
COGNIZANCE
OF
OFFENCES:--

(1)
No
Court
shall
take
cognizance of any offence under this Act
except on a complaint made by, or with
previous sanction in writing of the State
Board, and no Court inferior to that of a
Presidency Magistrate or a Magistrate of
the first class shall try any offence
punishable under this Act.

(2) Not With Standing anything
contained in S. 32 of the Code of Criminal
Procedure 1898 (5 of 1898) it shall be
lawful for any Magistrate of the first class
or for any Presidency Magistrate to pass a
sentence of imprisonment for a term
exceeding two years or of fine exceeding
two thousand rupees on any person
convicted of an offence punishable under
this Act."

28. A perusal of above quoted
provision makes it crystal clear that if the
complaint is filed by the Board, the
provision does not require any sanction and
if the complaint is filed by person other
than the Board, there should be previous
sanction of the Board. It would not be out
of place to mention here that the provisions
of Section 49 of the Act of 1974 as they
stand today do not require any sanction of
the Board irrespective of the fact whether
the complaint is filed by the Board or any
other person.

29. In the instant case, the application
under Section 245 Cr.P.C. was filed before
10 All. M/S Daurala Sugar Works Vs. State of U.P. & Anr.
535
the Court below for discharging the
petitioners from all the charges as levelled
against them. Vide order dated 11.11.2019,
the
Special
Judicial
Magistrate
(Pollution)/CBI, Lucknow rejected the said
application
recording
the
following
reasons:-

पत्रावली के अवलोकि से यह स्पि
है मक पररवादी की ओर से पत्रावली िें संलग्न
प्रपत्र छायाप्रमतयां हैं। प्रस्तुत पररवाद उन्मोर्ि
प्राथषिापत्र के स्तर पर है। दौराि मवर्ारण यह
मसि करिे का भार पररवादी पर है मक वह
अपिे
प्रपत्रों
तथा
अमभयुक्तगण
के
उत्तरदामयत् को संदेह से परे मसि करे।
िाििीय उच्चति न्यायालय की मवमध व्यवस्था
उडीसा राज्य बिाि देवेन्द्र िाथ पादी िें
िाििीय
उच्चति
न्यायालय
िे
यह
अमभमिधाषररत मकया मक आरोप मवरर्ि के
स्तर पर न्यायालय को िात्र यह देखिा है मक
क्या प्रथि दृिया िािला अमभयुक्तगण के
मवरूि बिता है या िहीं। न्यायालय इस स्तर
पर सूक्ष्म साक्ष्य मवश्लेर्ण एवं मििी टरायल
िहीं कर सकता है। अतः उपरोक्त सिस्त
मवश्लेर्ण के आधार पर न्यायालय का यह
ित है मक अमभयुक्त संख्या-अमभयुक्त संख्या
1, 2, 3561314 तथा 15 की ओर से प्रस्तुत
उन्मोर्ि
प्राथषिापत्र
मदिांक
26.09.2019
न्यायमहत िें स्वीकार मकये जािे योग्य िहीं
है।
आदेि

अमभयुक्त संख्या 1, 2, 3, 5, 6,13,
14 तथा 15 की तरफ से प्रस्तुत उन्मोर्ि
प्राथषिापत्र मदिांमकत 26.09.2019 मिरस्त
मकया जाता है। तद्िुसार प्राथषिापत्र
मिस्ताररत। पत्रावली वास्ते आरोप मवरर्ि
मदिांक 18.11.2019 को पेश हो। प्रस्तुत
पररवाद प्रार्ीिति वादों िें से एक है।
अतः अमभयुक्त संख्या 1, 2, 3561314 तथा
15 व्यन्धक्तगत रूप से स्वयं उपन्धस्थत हों,
मजससे वाद अग्रसाररत मकया जा सके।

30. The revisional Court while
dismissing Criminal Revision No.688 of
2019 vide order dated 17.07.2020 assigned
the following reasons:-

पुिरीक्षणकताष /अमभयुक्तगण के
मवद्वाि अमधवक्ता द्वारा यह भी तकष मदया
गया है मक सी०बी० मसंह की िृत्यु वर्ष
1995 िें हो गयी, जबमक उिके बाद प्रखर
कुिार, सहायक पयाषवरण अमभयन्ता को
वाद की कायषवाही संर्ामलत करिे का
प्राथषिा-पत्र
मदिांक
29-04-2019
को
पररवादी बोडष की अिुिमत से प्रस्तुत मकया
गया, मजसे मवद्वाि अवर न्यायालय द्वारा
मदिांक 11- 09-2019 को धारा 305 दण्ड
प्रमक्रया संमहता के अन्तगषत स्वीकार करते
हुए उन्हें पररवाद संर्ामलत करिे की
अिुिमत दी गयी। अवर न्यायालय का
आदेश मदिांमकत 11-09-2019 अवैध है।
प्रखर कुिार को लम्बे अन्तराल के बाद
पररवाद संर्ामलत करिे की अिुिमत िहीं
दी जा सकती थी। पररवादी बोडष के
अमधवक्ता द्वारा उपरोक्त का प्रमतवाद
मकया गया है/ स्पि है मक प्रस्तुत पुिरीक्षण
यामर्
पुिरीक्षणकताष/अमभयुक्तगण
द्वारा
मवद्वाि
अवर
न्यायालय
के
आदेश
मदिांमकत 11-11-2019 के मवरुि संन्धस्थत
की गयी है, मजसके द्वारा अवर न्यायालय
द्वारा पुिरीक्षणकताष / अमभयुक्तगण के
उन्मोर्ि का प्राथषिा-पत्र मिरस्त मकया
गया। यमद पुिरीक्षणकताष/अमभयुक्तगण को
अवर न्यायालय के आदेश मदिांमकत 11-
536 INDIAN LAW REPORTS ALLAHABAD SERIES
09-2019 की वैधामिकता पर कोई संदेह
था तो उिके पास उक्त आदेश के मवरुि
सक्षि न्यायालय िें पुिरीक्षण यामर्का
संन्धस्थत करिे का अमधकार प्रापत था, इस
पुिरीक्षण यामर्का िें उक्त आदेश की
वैधामिकता को र्ुिौती मदये जािे का कोई
औमर्त्यपूणष आधार िहीं है। वैसे भी अवर
न्यायालय की धारा 305 दण्ड प्रमक्रया
संमहता के अधीि पररवाद संर्ामलत करिे
की अिुिमत देिे की अमधकाररता एवं
शन्धक्त प्राप्त थी और यमद अवर न्यायालय
द्वारा अपिी उक्त अमधकाररता एवं शन्धक्त
का प्रयोग वैवेमकक रूप से मकया गया तो
उक्त के सम्बि िें अन्य आदेश के मवरुि
संन्धस्थत पुिरीक्षण यामर्का िें मवर्ार करके
मवश्लेमर्त मकये जािे का कोई औमर्त्यपूणष
आधार िहीं है।

पुिरीक्षणकताष/अमभयुक्तगण
के
मवद्वाि अमधवक्ता द्वारा अन्त िें यह भी
तकष मदया गया मक अवर न्यायालय द्वारा
प्रश्नगत आदेश मदिांमकत 11-09-2019 िें
उिके
द्वारा
उन्मोर्ि
प्राथषिा-पत्र
िें
उल्लेन्धखत अिेक मबन्दुओं के सम्बि िें
मवश्लेर्ण एवं मिष्कर्ष िहीं मदया गया,
इसमलए
प्रश्नगत
आदेश
अवैध
एवं
अमियमित है। पररवादी बोडष के मवद्वाि
अमधवक्ता द्वारा उक्त पर प्रमतवाद मकया
गया है यह स्पि है मक उन्मोर्ि प्राथषिा-
पत्र िें उपरोक्तािुसार मजि मबन्दुओं के
सम्बि िें अपिा तकष प्रस्तुत मकया गया,
उि मबन्दुओं को इस न्यायालय द्वारा
उपरोक्त के सम्बि िें उपरोक्तािुसार
मवश्लेर्ण मकया गया है और मवद्वाि अवर
न्यायालय द्वारा भी अपिे आदेश िें
उन्मोर्ि प्राथषिा-पत्र के अिेक मबन्दुओं पर
मवश्लेर्ण करके मिष्कर्ष मदया गया है,
मजसिें
प्रत्यक्षतः
कोई
अवैधामिकता,
अमियमितता, अिौमर्त्यता एवं अशुिता
65प्रदमशषत िहीं होती है। कदामर्त यमद
कुछ एक मबन्दु अवर न्यायालय से प्रश्नगत
आदेश िें मवश्लेमर्त या मिष्कमर्षत होिे से
शेर् रह गये तो िात्र उक्त के आधार पर
तब जबमक मवद्वाि अवर न्यायालय का
अन्धन्ति मिष्कर्ष एवं आदेश िें कोई
अवैधामिकता या अशुिता िहीं है, सम्पूणष
आदेश को अवैधामिक या अशुि िहीं
िािा जा सकता है।

उपरोक्त सम्पूणष मवश्लेर्ण से
स्पि है मक मवद्वाि अवर न्यायालय के
प्रश्नगत आदेश मदिांमकत 11-11-2019 िें
प्रत्यक्षतः कोई अवैधामिकता, अमियमितता,
अशुिता
या
अिौमर्त्यता
िहीं
है।
तदिुसार
प्रस्तुत
दान्धण्डक
पुिरीक्षण
यामर्का बलहीि है और मिरस्त मकये जािे
योग्य है।
आदेि

प्रस्तुत दान्धण्डक पुिरीक्षण यामर्का
बलहीि होिे के कारण मिरस्त की जाती है।
मवद्वाि अवर न्यायालय का प्रश्नगत आदेश
मदिांमकत 11-11-2019 पुि मकया जाता है

पुिरीक्षणकताष/अमभयुक्तगण अवर
न्यायालय के रािक्ष मदिांक 03-08-2020 को
अमग्रि
कायषवाही
हेतु
उपन्धस्थत
हों।
मिणषय/आदेश की एक प्रमत अवर न्यायालय
की पत्रावली के साथ अवलोकिाथष अमवलम्ब
प्रेमर्त हो।

बाद आवश्यक कायषवाही दान्धण्डक
पुिरीक्षण की पत्रावली मियिािुसार दान्धखल
दफ्तर हो।

31. At the outset, before I decide the
legality of the order passed by Special
10 All. M/S Daurala Sugar Works Vs. State of U.P. & Anr.
537
Judicial
Magistrate
(Pollution)/CBI,
Lucknow while rejecting the application for
discharge and order of revisional Court, it
would be appropriate to discuss Section
245 (1) of Cr.P.C. and scope of criminal
revision under Section 397 Cr.P.C. Section
245 (1) of Cr.P.C. reads as under:-

"245. When accused shall be
discharged.

(1) If, upon taking all the
evidence referred to in section 244, the
Magistrate considers, for reasons to be
recorded, that no case against the accused
has been made out which, if unrebutted,
would
warrant
his
conviction,
the
Magistrate shall discharge him."

32. Section 245(1) Cr.P.C. begins
with the words that, if upon such
consideration. It shows that the Magistrate
should consider the evidence adduced
under Section 244 Cr.P.C. and if he sees
that no case has been made out against the
accused, that is, if unrebutted it would
warrant a conviction, there is prima facie
case, then he will not discharge the accused
from the case under Section 245(1) Cr.P.C.
Otherwise, he will frame a charge under
Section 246(1) Cr.P.C.

33. The quality of consideration,
which a criminal court undertakes, of the
materials available before it, must certainly
vary from circumstance to circumstance
and stage to stage. At the initial stage of
Section 203/204 Cr.P.C., a criminal court
considers the materials available before it
for the short purpose of deciding whether
"there is sufficient ground to proceed
against the accused." In a private complaint
alleging commission of a warrant offence
under Section 245 Cr.P.C., after the
enquiry under Section 244 Cr.P.C., a
criminal court is expected under Section
245(1) only to consider whether such a case
has been made out "which, if unrebutted,
would warrant a conviction." The quality of
consideration of the materials available
before the court at a later stage of the
proceedings - at the stage of deciding
whether
the
accused
deserve
to
be
convicted or acquitted - is totally different
and more exhaustive. It is at that stage that
the exercise of weighing the evidence in
golden scales will, can and should be
resorted to by a court.

34. It is true that courts have loosely
employed the expression "prima facie
case" at the stage of Section 203/204
Cr.P.C. and Section 245/246 Cr.P.C. That
expression is not used in the Code of
Criminal Procedure. But it must be noted
that the quality of consideration at the stage
of Section 203/204 Cr.P.C. and Section
245/246 Cr.P.C. are definitely different.
There is a real and reasonable difference
between the quality of consideration of the
materials at these two stages. Though
loosely referred to as "prima facie case" by
courts in some decisions, one cannot jump
to a conclusion that the quality of
consideration of the materials at these two
stages are identical. They are certainly
different.

35. It is crucial to note that it is not
the mandate under Section 245(1) Cr.P.C.
that evidence if unrebutted would warrant a
conviction, charge has to be framed. The
language of Section 245(1) makes it very
clear that evidence will have to be adduced
and thereafter the court will have to
consider
whether
a
case,
which,
if
unrebutted, would warrant a conviction is
made out. It is not the mandate of law that
the court need only consider whether
"evidence if unrebutted, would warrant a
conviction." What should be considered is
538 INDIAN LAW REPORTS ALLAHABAD SERIES
whether a case if unrebutted, would warrant
a conviction. I must note that there is a
distinction
between
these
two
circumstances. A bona fide complainant
must be given a fuller opportunity to
substantiate
his
allegations.
The
complainant actuated by oblique motive
will have to be shown the door. An
innocent accused who does not deserve to
endure the trauma of a prosecution must be
saved of such predicament.

36. At this stage of Section 245/246
Cr.P.C. the question is certainly not
whether the evidence if accepted would
warrant a conviction. The question is only
whether the case established, from the
materials placed before the court, if
unrebutted, would warrant a conviction. In
that view of the matter, the consideration of
the stage of Section 245/246 Cr.P.C. is one
which is more sublime. According to me,
the case is certainly one to be considered
under Section 245(1) Cr.P.C. When so
considered, broad improbabilities in the
evidence rendered by P.W. 1 and P.W. 2
and the inherent infirmity in the case or the
complainant must all necessarily be taken
into account to decide whether such a case
which if unrebutted would warrant a
conviction has been established.

37. A bare reading of Section 245(1)
Cr.P.C., would reveal that it contemplates
the discharge of the accused after recording
all the evidence which may be produced
under Section 245 Cr.P.C. on behalf of the
complainant only if such evidence does not
make out any such case against the
accused, which if unrebutted, would entail
his conviction. In the instant case, the Court
below has dealt with each and every points
raised
by
the
petitioners
in
their
applications under Section 245(2) Cr.P.C.
in detail and found that prima-facie
evidences are available on record that
would
warrant
a
conviction
to
the
petitioners.

38. In the case of Dr. Z. Kotasek v.
The State of Bihar - 1984 Cri LJ 683, the
Patna High Court ruled that "when the
complainant was the Board itself and not
any of its officers and the Board had
passed a resolution for filing a complaint
against the accused company, there was
compliance of the provisions of sanction as
laid down in Section 49 of the Act. In the
instant case, the complainant is the Board
and the Board has passed a resolution for
filing a complaint. Thus, there is sufficient
compliance of Section 49 of the Act. In this
context it is necessary to clarify the legal
position that the Board can sue and be sued
in its own corporate name, as Board by
prescription is a Board of such antiquity
that the consent of the sovereign may be
presumed. The Board can sue and be sued,
but only through its authorised officers, this
position is undisputed. Thus, to satisfy the
requirements of Section 49 of the Act, it is
sufficient that the Board passed the
resolution to file complaint and authorised
its officer, to be nominated by the Assistant
Secretary, to file the complaint."

39. In the instant case, the available
materials on record when considered in its
totality must certainly lead the Court to the
conclusion that such a case had been made
out which, if unrebutted, would warrant a
conviction
of
the
accused
persons.
Therefore, the learned Special Judicial
Magistrate (Pollution)/CBI, Lucknow was
perfectly right in rejecting the application
for discharge of the petitioners. On reading
the complaint and other materials on
record, it cannot be said that the learned
Special Judicial Magistrate was wrong in
dismissing
the
said
application
for
10 All. M/S Daurala Sugar Works Vs. State of U.P. & Anr.
539
discharge. In such circumstances, I do not
find any force in the arguments advanced
by learned counsel for the petitioners for
setting aside order of the learned Special
Judicial
Magistrate
(Pollution)/CBI,
Lucknow while exercising extraordinary
jurisdiction under Section 482 Cr.P.C.

40. I am now required to determine
the scope of criminal revision under
Section 397 read with Section 398 Cr.P.C.
At this stage, it would be appropriate to
reproduce Sections 397 & 398 Cr.P.C.

397.