Prosecution Under Water And Air Act Can Be Launched Only By Way Of Complaint Case, Police Can't Register FIR: Punjab & Haryana High Court

The Punjab and Haryana High Court has made it clear that the police has no power to investigate or prosecute any offence under Air Act and Water Act.

Justice Harpreet Singh Brar said, "this Court is of the considered opinion that the police has no power either to investigate, prosecute or deal with any offence either under the Water Prevention and Control of Pollution) Act, 1974 or under the Air (Prevention and Control of Pollution) Act, 1981."

These observations were made in response to a plea seeking quashing of FIR lodged under Section 188 IPC, Section 33A of the of the Water (Prevention and Control of Pollution) Act, 1974 and Section 33A of the Air (Prevention and Control of Pollution) Act, 1981 at Faridabad.

The petitioner is the proprietor of M/s Mahadev Forgings & Components Firm. The unit was said to be installed in 2005 after "obtaining the necessary permissions and engaged in manufacturing the automobile parts by forging and compressing the raw material in hot furnaces."

The Haryana State Pollution Control Board (HSPCB) issued an order in 2014 for closure of the unit being run by the petitioner on grounds that the same was being run without obtaining necessary permissions. The aforesaid order of closure was challenged before the Appellate authority concerned but appeal was dismissed vide order dated, upon which the unit was again sealed by the authorities.

During an inspection in 2015, the unit of the petitioner was found to be operating illegally after breaking the seal imposed by HSPCB, in contravention to the provisions of Section 33-A of the Water Act, 1974 and 33-A of the Air Act, 1981.

Consequently, FIR was registered against the petitioner on complaint received one KL Nagpal alleging that the said unit was operating by tempering and breaking the seal affixed by the authorities.

The counsel for the petitioner argued that, as per Section 49 of the Water Act, no Court shall take cognizance of any offence under the Act except on a complaint made by the Board or any authorised person and similar provisions exists under Section 43 of the the Air Act.

Considering the submission, the Court referred to Section 43 of the the Air Act and Section 49 of the Water Act along with Sections 4 and 195 of CrPC.

Perusing the provisions, the Court observed, "if a special statute provides for a particular procedure excluding the provision of IPC, the provisions of IPC cannot be invoked. Section 4(2) of the CrPC provides that all the offences under any other law are to be investigated, inquired into and otherwise dealt with in accordance with the provisions of the said special law' in so far as they are not repugnant to the code."

Section 43 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 49 of The Air (Prevention and Control of Pollution) Act, 1981 make it abundantly clear that no court shall take cognizance of an offence under this Act except on a complaint made by the Appropriate Authority, it said.

Adding that as per Water Act and Air Act, the prosecution can be launched only by way of a complaint case and FIR cannot be registered Justice Brar opined that, "Therefore, the impugned FIR and all the subsequent proceedings arising therefrom are void ab initio and are liable to be quashed."

Consequently, the Court set aside the FIR stating that "the very registration of FIR is bad in the eyes of law, as cognizance of an offence under Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 can only be taken up on a criminal complaint filed by the officer authorized under the respective Act in this regard."

It also added that the FIR  registered under Section 188 IPC cannot sustain due to non-compliance of Section 195 of the CrPC.

Appearance: Bikram Chaudhary, Advocate for the petitioner.

Vikas Bhardwaj, AAG, Haryana.

Pawan Girdhar, Advocate and  Manju Goyal, Advocate for respondent No. 2.

Citation: 2024 LiveLaw (PH) 47

Title: Ravi Shanker Gupta v. State of Haryana and another.

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