Judgment:
- 1 - CRL.P No.7401 of 2022 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE30H DAY OF SEPTEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION No.7401 OF2022BETWEEN:
1. MAHENDRA SOLANKI, S/O SODARAM JI, AGED ABOUT40YEARS, AND RESIDING AT NO.A-706, 7TH FLOOR, ETA APARTMENT, MAGADI ROAD, BENGALURU – 560 023. …PETITIONER (BY SRI. ABHINAY Y T., ADVOCATE) AND:
1. STATE OF KARNATAKA, BY ASSISTANT COMMISSIONER OF POLICE, VIJAYANAGAR SUB DIVISION, BENGALURU. BY NAME: SRI NANJUNDE GOWDA K, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BUILDING, BENGALURU – 560 001. …RESPONDENT (BY SRI.K.S.ABHIJITH, HCGP) THIS CRL.P. IS FILED U/S.482 OF CR.PC PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.2408/2022 FOR THE - 2 - CRL.P No.7401 of 2022 OFFENCE P/U/S151) OF THE ENVIRONMENTAL PROTECTION ACT, PENDING ON THE FILE OF XXX A.C.M.M, BENGALURU. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.2408 of 2022 pending before the XXX Additional Chief Metropolitan Magistrate, Bengaluru arising out of offence punishable under Section 15(1) of the Environment (Protection) Act, 1986 (for short ‘the Act’).
2. Heard Sri Y.T. Abhinay, learned counsel appearing for the petitioner and Sri K.S. Abhijith, learned High Court Government Pleader for the respondent.
3. The facts, that lead the petitioner to this Court in the subject petition, are as follows: On 20-12-2021, a complaint comes to be registered invoking Section 200 of the Cr.P.C. before the learned Magistrate. The ingredients of the complaint are that on 18-12-2021, the police had received the complaint alleging - 3 - CRL.P No.7401 of 2022 noise pollution during renovation work of the petitioner’s house. According to the complaint, the noise pollution was in the range between 51 db to 59 db. Since the property is situated in a silent zone, necessary action was sought to be taken. Therefore, initially complaint was made for violation of Noise Pollution (Regulation and Control) Rules, 2000 (‘the Rules’ for short).
4. On receipt of the complaint, the respondent visits the apartment of the petitioner and records noise pollution to be at 75.4 db. Therefore, the allegation was violation of the provisions of the Act. On registration of the complaint, the learned Magistrate takes cognizance of the offence in terms of his order dated 31-01-2022 for offence punishable under Section 15(1) of the Act. Taking of cognizance against the petitioner is what drives the petitioner to this Court in the subject petition.
5. The learned counsel appearing for the petitioner would vehemently contend that in terms of Rule 5A of the Noise Pollution (Regulation and Control) Rules, 2000, construction - 4 - CRL.P No.7401 of 2022 activity should not be undertaken during night time in residential area or silent zones causing noise pollution. It is not the case of the respondent that the petitioner was undertaking construction work at night time. Therefore, the offence under Section 15(1) of the Act could not have been laid against the petitioner as the ingredients were in term of Rule 5A of the Rules and would seek quashment of proceedings.
6. On other hand, the learned High Court Government Pleader would seek to refute the submissions to contend that the petitioner is guilty of emitting noise in a silent area which becomes an offence under Section 15(1) of the Act and, therefore, it is for him to come out clean in the trial as cognizance is already taken by the learned Magistrate.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. The afore-narrated facts that lead for registration of the complaint, as borne out from the pleadings are not in dispute. The complaint comes to be registered on 20-12-2021 - 5 - CRL.P No.7401 of 2022 invoking Section 200 of the Cr.P.C. before the learned Magistrate. The allegation in the complaint is violation of the Act and the Rules. Section 15 of the Act reads as follows: “15. Penalty for contravention of the provisions of the Act and the rules, orders and directions.—(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.” Sub-section (1) of Section 15 of the Act directs that whoever fails to comply with or contravenes the Act or the Rules would become open for punishment with imprisonment for a period of five years. The allegation in the case at hand, as could be gathered from the fact or the complaint is under Rule 5A of the Rules. Rule 5A of the Rules reads as follows:
"5A. Restrictions on the use of horns, sound emitting construction equipments and bursting of fire crackers.-. 6 - CRL.P No.7401 of 2022 (1) No horn shall be used in silence zones or during night time in residential areas except during a public emergency. (2) Sound emitting fire crackers shall not be burst in silence zone or during night time. (3) Sound emitting construction equipments shall not be used or operated during night time in residential areas and silence zones."
In terms of Rule 5A, sub-rules (1) and (2) would not become applicable as the petitioner is not alleged of using horn or fire crackers at night time. Facts would directly be at sub-rule (3) of Rule 5A which bares emission of sound from construction equipments at night time in residential areas and silence zones. The allegation against the petitioner was that the construction activity led to cutting of plywood which generated lot of noise. However, the allegation was not that cutting of plywood has taken place at night. It is admittedly in the day. Therefore, the very invocation of Rule 5A of the Rules on the face of it is erroneous. What shocks the Court is the way in which the report submitted by the police and cognizance is taken on such report. The order taking cognizance on the complaint reads as follows: “The Police Inspector of K.P.Agrahara P.S submitted report to the complainant - 7 - CRL.P No.7401 of 2022 stating that loud speaker used in Temple, Church and Mosque by violating limit fixed in db(a)Leq by Karnataka State Pollution Control Board, Bangalore. On 18-12-2021 at about 5-15 P.M. The police Constrable Sri. Raghu Rangaswamy and his co-staff checked and verified the reading disable of loud speaker used at House bearing No.A-706 of ETA Apartment A Tower, 7th floor, by using reading measurement. At that time, its reading at 75.04 disable. In this regard they have draw the mahazar in the spot. It is totally violation of rules and limit prescribed by KSPCB under noise pollution (Regulation and Control) Rules 2000. Hence, this complaint is filed against accused alleging that, he has committed an offence P/U/S151) of The Environmental (Protection) Act 1986. Heard Learned Senior APP. The following points would arised for my consideration.
1. Whether there is a sufficient material on record to take cognizance?. By considering complaint, enclosed documents and hearing of the parties my answer to above point in the affirmative for following REASONS I have carefully perused, complaint averments, documents, show cause notice, postal acknowledgment, other records. As per Section 19 of Environmental (Protection) Act no court shall take cognizance of offence under this act except on a complaint lodged by Central Government. Any authority or Officer authorized in this behalf by that Government or any other person who has complied the statutory - 8 - CRL.P No.7401 of 2022 requirements as contemplated U/s 19(b) of Environmental Protection Act. The Department of ministry of Environment and Forest of Central Government framed the Noise Pollution (Regulation and Control) Rules-2000 by exercising powers confirmed U/s 3(2)(i), 6(1) and 6(2)(b) and 25 of Environmental (Protection) Act. As defined in Rule 1(c) of the aforesaid rules authorities means and includes Central Government or State Government, District Magistrate, Police Commissioner or any other officer not below the rank of the DySP. In this case Assistant Commissioner of Police, Vijayanagara Sub Division, Bengaluru filed this private complaint. By considering aforesaid provision the complainant is authority as defined under Rule 2(c) of Noise Pollution (Regulation and Control) Rules-2000 to filed this private complaint. There is a specific allegation regarding violation of noise pollution (Regulation and Control) Rules-2000. This fact is reveals from complaint, mahazar, slip. At this stage, the complainant has established prima facie case to take cognizance U/S151) Environmental (Protection) Act. The Complainant is public servant. Hence, his sworn statement is dispensed with U/s 200(a) of Cr.P.C. already it is held that complainant established prima facie case based on material on record to proceed against accused persons. Hence, office is directed to register the case against accused persons in register III and issue summons to accused. R/by 14-3-2022."
(emphasis supplied) The foundation for taking cognizance as recorded by the learned Magistrate is as quoted hereinabove. The learned - 9 - CRL.P No.7401 of 2022 Magistrate records that Police Inspector of K.P.Agrahara Police Station has submitted a report stating that loud speaker used in Temple, Church and Mosque by violating limit fixed in db level by the Karnataka State Pollution Control Board and the said loud speaker was being used in the apartment belonging to the petitioner. The complaint was not that loud speaker was being used in a Temple, Church or Mosque or any loud speaker being used in any house. The allegation was that the petitioner has undertaken construction activity including cutting plywood which has generated some noise. Based upon the said facts, the learned Magistrate takes cognizance of the offence. There cannot be better example of recklessness on the part of the learned Magistrate in taking cognizance based upon the fact that a loud speaker as used in the Temple, Church or Mosque is being used in the house and, therefore, the petitioner is prima facie guilty of the offence under the Act and the Rules. The order suffers from blatant non-application of mind on the part of the learned Magistrate in taking cognizance by such cryptic order. It is for this reason the Apex Court and this Court have time and again held that the order taking cognizance should - 10 - CRL.P No.7401 of 2022 bear application of mind and cannot be a frolicsome act on the part of the learned Magistrate in passing reckless orders of taking cognizance. Taking cognizance and issuance of summons is a serious matter. It cannot be executed in a casual manner as is done in the case at hand. In the circumstances reference being made to the judgment of the Apex Court in the case of LALANKUMAR SINGH AND OTHERS V. STATE OF MAHARASHTRA1 becomes apposite. The Apex Court in the case of LALANKUMAR SINGH (supra) at paragraphs 38 and 39 has held as follows: “38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation9, which reads thus: “51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to 1 2022 SCC OnLine SC1383- 11 - CRL.P No.7401 of 2022 commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.
39. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra).” - 12 - CRL.P No.7401 of 2022 In the light of the facts obtaining in the case at hand and the judgment rendered by the Apex Court supra, permitting further proceedings to continue in the case at hand would become an abuse of the process of law, degenerate into harassment and result in miscarriage of justice.
9. For the aforesaid reasons, I pass the following: ORDER
(i) Criminal Petition is allowed. (ii) Proceedings in C.C.No.2408 of 2022 pending before the XXX Additional Chief Metropolitan Magistrate, Bengaluru stand quashed. Sd/- JUDGE SJK List No.:
1. Sl No.: 7