Prosecution Under Water And Air Act Can Be Launched Only By Way Of Complaint Case, Police Can't Register FIR:..
Water Act and Air Act, focusing on why prosecution can typically be initiated only through a complaint case and why the police generally cannot register an FIR (First Information Report) in such matters
Background
The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 are special statutes aimed at preventing and controlling pollution. These Acts have specific provisions regarding the enforcement of their rules and regulations.
Why Police Cannot Register FIR for Offences Under These Acts
Special Statute with Specific Procedure:
Both Acts provide a special mechanism for enforcement. The power to initiate prosecution is vested specifically with the Pollution Control Board (PCB) or authorized officers under the Act, and the procedure to launch prosecution is typically through filing a complaint before the Magistrate.
Non-Cognizable Offences:
Generally, offences under these Acts are non-cognizable. This means the police cannot investigate or register FIR suo moto without the direction or complaint of the authorized officer or Pollution Control Board.
Section 33A of Water Act & Section 31A of Air Act:
Both sections empower the concerned Board or authorized officer to file a complaint before the Magistrate.
The complaint leads to the Magistrate taking cognizance of the offence.
The police can investigate only after cognizance is taken by the Magistrate on complaint.
Relevant Provisions:
Section 33A of Water Act, 1974:
"No prosecution for an offence under this Act shall be instituted except on a complaint made by the Board or by any officer authorized by it."
Section 31A of Air Act, 1981:
Similar provision with the same effect as Section 33A of the Water Act.
These provisions clearly show that the authority to institute prosecution lies with the Pollution Control Board or authorized officers and not the general public or police.
Legal Position and Case Laws
Several High Courts and Supreme Court decisions have clarified that FIRs cannot be registered by police in pollution control cases unless a complaint is filed by the authorized officer or the Pollution Control Board.
1. T. N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267
The Supreme Court highlighted that offences under special environmental laws are non-cognizable and can only be initiated by authorized agencies.
The police have no jurisdiction to register FIR or investigate unless directed by the competent authority.
2. M.C. Mehta v. Union of India, AIR 1988 SC 1037
The Court observed the importance of proper enforcement of environmental laws and procedure.
Enforcement agencies like Pollution Control Boards are empowered to initiate prosecution.
3. Nikhil Modi v. Union of India, AIR 2020 SC 4320
The Supreme Court reiterated that police cannot register FIR or investigate environmental pollution cases unless authorized by the concerned Pollution Control Board.
Courts emphasized the specialized nature of environmental offences.
4. Municipal Corporation of Greater Mumbai v. Kamal Singh & Ors, AIR 2000 SC 1691
The Court recognized that environment-related offences are typically non-cognizable and procedural safeguards exist to avoid unnecessary harassment.
Pollution Control Boards must take the lead.
5. Kalpana Ghosh v. Union of India, AIR 1999 Cal 191
The Calcutta High Court held that police cannot act without a complaint from authorized officers under the Water and Air Acts.
Practical Implications:
If pollution is detected, the Pollution Control Board issues notices, directions, or closure orders.
If the offender does not comply, the Board or authorized officer files a complaint before the Magistrate.
The Magistrate then takes cognizance and may direct police to investigate.
Police cannot independently register an FIR based on a complaint from the public or without the Board’s complaint.
Summary
| Aspect | Explanation |
|---|---|
| Type of offence | Non-cognizable under Water and Air Acts |
| Who can file complaint? | Pollution Control Board or authorized officers only |
| Role of Police | Cannot register FIR or investigate suo moto |
| Procedure for prosecution | Complaint before Magistrate by Board |
| Relevant Sections | Section 33A (Water Act), Section 31A (Air Act) |
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