1. Rule, made returnable forthwith. The learned Government Advocate waives service on behalf of the respondents. Heard finally by consent of
parties.
2. Both these petitions arise out of the order dated 13/11/2017 passed by the learned Judicial Magistrate First Class, Mapusa in Case No.AOA/663/P
& CP Act/2017/C. The petitioners in Criminal Writ Petition No.69/2018, are accused nos. 1 and 2, while the petitioner in Criminal Writ Petition
no.68/2018, is arrayed as the accused no.3 and is said to be the 'unit representative', of the accused no.1. That is a complaint filed under the
provisions of the Air (Prevention and Control of Pollution)Â Act, 1981 (Air Act, for short) and Water (Prevention and Control of Pollution) Act, 1974
(Water Act, for short)Â
3. I have heard Shri Desai, the learned counsel for the petitioners and Shri Dangui, the learned Government Advocate for the respondents. Perused
record.
4. On behalf of the petitioners, reliance is placed on the decision of the Supreme Court in the case of Anil Kumar and others Vs. M.K. Aiyappa and
another (2013) 10 SCC 705 and Rajendra Rajoriya Vs. Jagat Narain Thapak and others, AIR 2018 SC 1229, in order to submit that at the stage of
issuance of process and taking cognizance the Magistrate is expected to apply mind and record reasons although such reasons may not be elaborate.
It is submitted that in the present case, the impugned order is totally unreasoned. He also submits that the accused no.3, who is said to be a 'unit
representative', is not at all connected with the accused no.1/Establishment and he is not even an employee. It is submitted that thus, the accused
no.3 cannot be vicariously made liable with the aid of Sections 47 of the Water Act and section 40 of the Air Act as the accused no.1 is a
proprietorship concern.Â
5. The learned Government Advocate submits that the petitioners have an alternate remedy of filing revision application before the learned Sessions
Judge. It is submitted that the 'unit representative', was present during the inspection conducted by the respondent no.1. It is submitted that the
proprietor and the 'unit representative' would both be liable. It is submitted that the unit was being operated without licence or consent of the
respondent no.1 under the Water Act and the Air Act. The learned Additional Government Advocate also points out that an order/direction under
section 33-A of the Water Act and Section 31-A of the Air  Act,  was also issued to the accused nos.1 and 2. He, therefore, submits that
the learned magistrate was justified in issuing process.
6. I have carefully considered the rival circumstances and the submissions made.
7. At the outset as held by the Hon'ble Supreme Court, in the case of Vijay and others Vs. State of Maharashtra and Others AIR 2017 SC 397, the
availability of an alternate remedy is not an absolute bar and would not limit the availability of the inherent powers under section 482 of Cr.P.C. The
question whether such a petition could be entertained, essentially would depend upon facts and circumstances of each case. Here is a case where the
impugned order lacks any reasons. It is now well settled that although the learned Magistrate is not required to record elaborate reasons at the stage
of taking cognizance/issuance of process, the impugned order must demonstrate application of mind to the contents of the complaint.  Reliance
in this regard can be placed on the Division Bench judgment of this court, in the case of Nirmal Bang Securities Private Limited and others Vs.
State of Maharashtra and others, 2017 ALLMR (Cri) 4551. It is not necessary to multiply authorities on the point.
8. Considering the overall circumstances, in my considered view it would be appropriate that the Magistrate re-considers the question of issuance of
process after affording an opportunity of hearing to the complainant. In that view of the matter, the following order is passed:
(i) The Criminal writ petitions are partly allowed.
(ii) The impugned order is hereby set aside.
(iii) The matter is remitted back to the learned Magistrate, for deciding thequestion of issuing of process, afresh after hearing the learned counsel for
the complainant.
(iv) The parties to appear before the learned Magistrate on 25/6/2018 at10.a.m.
(v) Rule is made absolute in the aforesaid terms.
