PRATAP LAL TELI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present Criminal Application raises a significant issue as regards the embargo created in Section 19 of the Environment (Protection) Act, 1986 and the Applicant seeks a direction to quash and set aside the impugned order passed by the Sessions Court and seek a direction to the Worli Police Station to register the First Information Report and to investigate the case in accordance with Chapter XII of the Criminal Procedure Code.

(2.) The bare minimum facts essential for determination of the legal question are culled out as follows:

(3.) Mr. Aditya Pratap, learned counsel appearing for the Applicant rests his case on certain important questions of law and he would submit that the offence contained under Section 15 of the Environment (Protection) Act, 1986 is non-cognizable whereas it would be liable to be classified as a cognizable offence in view of the provisions of Part-II of Schedule-I of the Criminal Procedure Code. He would submit that this special enactment prescribes a penalty extending with imprisonment for a term of five years or with fine which may extend to Rs.5 lakhs, or both. According to him, this would fall within the ambit of a cognizable offence to be triable by the Magistrate of First Class but the Act has classified the offence to be non-cognizable . The second point urged by Mr. Pratap is to the effect that the learned Sessions Judge has erroneously treated the Application under Section 156(3) of the Code of Criminal Procedure to be amounting to taking cognizance of the offence and the interpretation arrived at by him for rejecting the relief on the basis that such an application is not sustainable in absence of sixty days statutory notice being given under the Act, is erroneous. According to him, any order under Section 156(3) of the Criminal Procedure Code is at pre-cognizance stage and this is not the initiation of trial and at this stage no cognizance is taken within the meaning of the provisions of Section 190 of the Criminal Procedure Code. Further, he would also canvas a submission that the Sessions Judge has erred in prescribing the criteria of locus standi in filing criminal case under the Environment (Protection) Act and he would rely on the judgment of the Apex Court in the case of A.R. Antulay v. Ramdas Sriniwas Nayak & Anr., 1984 AIR(SC) 718 to advance a submission that the legal principle emerging from the said judgment is to the effect that anyone can put the criminal law into motion unless contradicted by a statutory provision. According to him, the impugned order by implication, rules that an order under Section 156(3) of the Code of Criminal Procedure would be post-cognizance stage against settled position in law that the order under this section is pre-cognizance stage . He would further place reliance on the 15 members Expert Body Report of the State Level Expert Appraisal Committee, which in its Meeting held on 29th & 30th November, 2012 and 01st December, 2012 has noted that the project proponent has initiated the construction work without obtaining the Environmental Clearance and, hence, the SEIAA after due verification may initiate action for violation under the Environment (Protection) Act, 1986.