Dismissed

Uday Kumar v. State of Haryana

Punjab & Haryana HC27 Mar 2014CRM-M/1394/2014

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition, the petitioner sought quashing of an FIR for alleged violation of disease control orders. The Court held that the mandatory provisions of Section 195 Cr.P.C. and Section 19 of the Environment Act required a complaint by the public servant to validate the prosecution, thus dismissing the petition for quashing and preserving the petitioner's right to raise these

What did the court decide?

Petition for quashing of FIR dismissed; petitioner retained liberty to raise plea before trial court.

Uday Kumar Vs State of Haryana — Constitutional and Fundamental Rights | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Crl. Misc. No. M-1394 of 2014 Date of decision : March 27, 2014

Uday Kumar

... Petitioner

vs.

State of Haryana

... Respondent

CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA

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Present: Mr. J.S. Bedi, Sr. Advocate with Ms. Diya Sodhi, Advocate for the petitioners. Mr. Shekhar Mudgal, AAG, Haryana for the respondent-State.

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Surinder Gupta, J

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The petitioner has sought quashing of the FIR No.101 dated 10.5.2011 registered for offence punishable under Section 188/120-B IPC and Section 5 of the Environment Protection Act, 1986 at Police Station DLF, Phase-II, Gurgaon and all the subsequent proceedings arising therefrom.

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The above referred FIR was registered on the complaint of District Town Planner and Enforcement, Gurgaon, which reads as under :-

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“Sub: Sealing of unauthorized tubewell/borewell registration of the FIR.

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On the subject cited above, it is intimated that in compliance of direction given vide order dated 24.12.2010 by Hon'ble Punjab and Haryana High Court in CWP 20032/08 and orders of worthy Deputy Commissioner Gurgaon issued vide his office Endst. No.18/LB, 19/LB and 20/LB dated 5.1.2011 field staff of this office had sealed 1 unauthorized tube wells installed by various colonizers for extracting ground water for construction purpose. In this regard, you are requested to register FIR against violators for violating the provisions of Section 3 (2) and 5 of Environment Protection Act, 1986. The names of the offenders/violators may be obtained at your level during course of investigation. It is further requested to maintain vigil on these sealed tube well so as to ensure that no further violation of provisions of Environment Protection Act, 1986, aforesaid direction of Hon'ble Punjab and Haryana High Court and order of worthy Deputy Commissioner, Gurgaon is done. Any

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Kumar Deepak 2014.04.07 18:17 I attest to the accuracy and integrity of this document

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Crl. Misc. No. M-1394 of 2014

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breach of aforesaid orders of Hon'ble Punjab and Haryana High Court and order of worthy Deputy Commissioner, Gurgaon such as unauthorized removal of seal etc. may be dealt with appropriately by registering an FIR against such offender and may also be brought to the notice of under signed as well as worthy Deputy Commissioner, Gurgaon. For further clarifications on the relevant provisions of Environment Protection Act 1986 with regard to illegal extraction of underground water, you are requested to contact Hydrologist O/O Deputy Commissioner, Gurgaon who is Nodal Officer for implementation of provisions Environment Protection Act, 1986 as far as extraction of illegal groundwater concerned. The copy of FIR may be sent to the undersigned as well as Hydrologist for record purpose. The list of tube wells sealed by staff of this office/bore machine involved in unauthorized drilling of tube well on dated 10.5.2011 is detailed below:

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1. M-1/9 DLF PH-II Gurgaon.

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2. Sh. Udey Kumar S/o Rajeev Kumar R/o 14/78 Punjabi Bagh New Delhi.

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3. Mr. Vansh Bhalla.

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4. Lalu Parsad Yadav 9910092411

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5. Machine Bore Well.”

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As per the petitioner, the FIR is cryptic and against the provisions of law. The court can take cognizance of any offence punishable under Section 188 IPC except on the complaint in writing by the Deputy Commissioner whose order is alleged to have been violated. Under Section 19 of the Environment Act, no court can take cognizance of any offence except on the complaint made by the Central Government or any authority or officer authorized in this behalf of that Government. In this case, District Town Planner and Enforcement Gurgaon has lodged the FIR without any authority. As per the sanctioned building plan of the petitioner, he had to install rain water harvesting system in his under construction building. The FIR was pre-mature as the bore-well was being dug and has not reached the ground water level to extract water.

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In reply, the State has alleged that after completion of the investigation, challan has already been submitted against the petitioner in Court. During the course of investigation against the persons who have installed unauthorized tube-well, name of the petitioner and his co-accused, namely,

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Kumar Deepak 2014.04.07 18:17 I attest to the accuracy and integrity of this document

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Crl. Misc. No. M-1394 of 2014

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Mainuddin Alam came forth. The petitioner was arrested on 10.5.2011 and the articles like boring machine along with electric motor, two iron pipes and one jack were taken into possession by the police. The bore-well being dug by the petitioner was illegal and unauthorized which the petitioner could not dug in violation of the of the order of Deputy Commissioner, Gurgaon.

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The allegations against the petitioner pertains to the violation of the order of the District Magistrate, Gurgaon dated 3.1.2011 which reads as follows :-

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“I, R.K. Kataria, IAS, Deputy Commissioner/District Magistrate, Gurgaon in compliance of order of Hon'ble High Court of Punjab and Haryana Chandigarh passed in CWP 20032/08 on dated 24.12.2010 hereby direct the following officers to ensure that water from the tube-wells registered bore-wells other than installed by farmers for agriculture land shall be used only for domestic and drinking purpose and not for any other purpose including construction in 'Notified Area' of Gurgaon District as per area shown against their names as under :-

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xx xx xx xx xx xx xx xx

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If any tubewell/borewell is found in violation of the above said direction the team is supposed :

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1. To discontinue ground water abstraction by sealing the same and discontinuing its electric supply.

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2. To seize any equipment being used to facilitate sale and supply of ground water including .... and hand over to the concerned police station.

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3. To register FIR by in-charge of the team in concerned police staff against the offender/violators of the above said directions.

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The incharge of the team will be held responsible for any lapses/discrepancy/violation of order in their respective area.”

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This fact is not disputed that the petitioner has got approved the building plan which also laid down the condition to provide rain water harvesting system as mentioned in the letter of approval of building plan dated 6.10.2010 (Annexure P/6). The petitioner gave intimation to the Deputy Commissioner, Gurgaon on 10.11.2010 (Annexure P/7) regarding installation of rain water harvesting system.

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Kumar Deepak 2014.04.07 18:17 I attest to the accuracy and integrity of this document

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Crl. Misc. No. M-1394 of 2014

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The police has presented the final report for offence punishable under Section188/120-B IPC and Section 3 (2) and 5 of Environment Protection Act, 1986. The question that arises for consideration is as to whether the FIR can be quashed for non compliance of Section 195 Cr.P.C. and Section 19 of the Environment Protection Act, 1986. This cannot be disputed that no court can take cognizance for offence punishable under Section 188 IPC except on a complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. The offence punishable under Section 188 IPC is a cognizable offence and the police is duty bound to register FIR when the matter for commission of a cognizable offence is reported and to submit final report before court under Section 173 Cr.P.C. after completion of investigation. In view of the facts discussed above, no ground for quashing the FIR is made out.

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The stress of the learned counsel for the petitioner is on the point that the trial court cannot take cognizance for offence under Section 188 IPC and Section 19 of the Environment Protection Act in the absence of required complaint as per the provisions of above sections as the provisions of Section 195 Cr.P.C. and Section 19 of the Environment Protection Act are mandatory. The Hon'ble Supreme Court in the case of C. Muniappan & Ors. vs. State of Tamil Nadu reported as (2010) 9 SCC 567 has discussed this point at length and observed as follows :-

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“25 Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Criminal Procedure Code are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.”

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It has been submitted by the learned counsel for the petitioner that the case is fixed for 28.3.2014 before the trial court for consideration on framing of charge. As to whether the cognizance in the matter can be taken in the absence of the complaint as required under Section 195 Cr.P.C. and Section 19 of the Environment Protection Act, is a fact to be seen by the trial court at the time of

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Kumar Deepakframing of charge. 2014.04.07 18:17 I attest to the accuracy and integrity of this document

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Crl. Misc. No. M-1394 of 2014

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This petition is dismissed. However, the petitioner shall be at liberty to take all the legal plea before the trial court at the time of arguments on framing of charge and nothing observed herein shall effect the right of the petitioner to avail legal remedy against the order that may be passed by the trial court.

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March 27, 2014 deepak

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(Surinder Gupta) Judge

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Kumar Deepak 2014.04.07 18:17 I attest to the accuracy and integrity of this document

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Crl. Misc. No. M-1394 of 2014

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Kumar Deepak 2014.04.07 18:17 I attest to the accuracy and integrity of this document

Uday Kumar v. State of Haryana

Case brief

What is this about?

What did the court decide?

Uday Kumar v. State of Haryana

Case brief

What is this about?

What did the court decide?

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