Defending a Criminal Complaint Under Environmental Laws

Although the Jan Vishwas Act, 2023 and the Water (Amendment) Act, 2024 replaced many environmental offences with penalties, criminal prosecution has not disappeared. Complaints filed by pollution boards before the amendments are still pending in magistrate courts across the country. In states that have not adopted the Water Act amendment, the older offences under the Water Act may still apply. Failure to comply with directions or to pay penalties, and some other serious contraventions, can still lead to prosecution under the amended Acts. And conduct that causes serious harm may attract offences under the Bharatiya Nyaya Sanhita, 2023, such as public nuisance, or, for contaminated sites, under the 2025 rules referring to the general criminal law.

A criminal complaint names not only the company but often its directors, managers and occupiers, who receive summons and must appear. For individuals, the prospect of a criminal case is serious even if the likely punishment is a fine. This page explains which environmental offences remain, how complaints are filed and tried, the defences commonly available, and how to seek discharge or quashing.

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Prosecution at a glance

Which offences remain

The amendments of 2023 and 2024 replaced imprisonment with penalties for many contraventions, such as operating without consent or breaching certain conditions, in the Air Act, the Environment (Protection) Act and, where adopted, the Water Act. But the amended Acts still provide criminal consequences for some conduct, such as failing to comply with directions or orders, failing to pay penalties imposed by adjudicating officers, and certain other serious contraventions. Where a state has not adopted the Water Act amendment, the older Water Act offences may continue to apply in that state.

Pending complaints filed before the amendments raise a further question: whether the accused can claim the benefit of the later, more lenient law. Courts have considered such arguments in various contexts, and the answer may depend on how the amendment was framed and the stage of the case. Where you face an old complaint for conduct that is now only a penalty matter, this argument should be examined carefully.

Company and director liability

Environmental laws contain provisions, such as Section 47 of the Water Act and Section 40 of the Air Act, under which, when an offence is committed by a company, every person who was in charge of and responsible to the company for the conduct of its business at the time is deemed guilty, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent it. Directors, managers and other officers with whose consent or connivance, or due to whose neglect, the offence was committed are also liable.

The Supreme Court has repeatedly held, in cases under similar provisions in other laws, that a complaint must specifically state how each accused person was in charge of and responsible for the conduct of the company's business; mere designation as a director is not enough. Many environmental complaints name all directors without any such averment. These complaints can often be challenged by the directors concerned, either by seeking discharge or by petition to the High Court to quash proceedings against them. Independent and non-executive directors in particular should take this route.

Sampling and evidence

Many prosecutions under the Water and Air Acts rest on samples of effluent or emissions. The Acts prescribe a procedure for taking samples, including notice to the occupier of the intention to have the sample analysed, dividing the sample into parts, sealing and marking them, and sending them to a recognised laboratory, with the occupier entitled to a portion. Section 21 of the Water Act sets out this procedure, and the Air Act has similar provisions. Courts have held that a sample not taken in accordance with the prescribed procedure may not be admissible as evidence in proceedings under the Act.

When defending a complaint based on a sample, check the inspection record: whether notice was served, whether the occupier or its representative was present, whether the sample was divided and sealed, whether the occupier received its portion, and whether the laboratory was recognised. Gaps in this procedure are often decisive.

How a prosecution is handled

Quashing and discharge

Where the complaint discloses no offence against a particular accused, is barred by limitation, lacks a required sanction or authorisation, or is based on conduct that is no longer an offence, the accused can seek discharge before the magistrate or approach the High Court under its inherent powers, now under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 482 of the CrPC), to quash the proceedings. High Courts have quashed environmental complaints against directors with no specific role, complaints based on defective sampling, and complaints filed after the unit had complied and the board had revoked its directions.

An early, well-founded application can save years of litigation. But not every case is suitable for quashing; where facts are disputed, courts usually leave them to be decided at trial.

Bail, appearance and practical steps

Most environmental offences are bailable or carry only fines, and accused persons usually appear before the magistrate and obtain bail on the first date, or seek exemption from personal appearance through counsel. Directors living far from the court, or abroad, can apply for exemption and permission to be represented by counsel. Keep track of every date; non-appearance without exemption can lead to warrants. Where the unit has since complied and the board is willing, the complaint may also be resolved through compounding where the law permits, or withdrawal by the board.

Time and typical cost

Our fees are agreed in writing at the start, stage by stage. They are not linked to the outcome.

Common defences and what supports them

Documents usually needed

Laws that apply

How we work

We are a litigation and advisory practice led by Advocate BK Singh, with offices in Dwarka (New Delhi) and Vaishali (Ghaziabad). This is what you can expect:

• Law checked first: what remains an offence after the amendments.
• Directors protected: with role-based defences.
• Sampling scrutinised: procedure and admissibility.
• Early exits pursued: discharge and quashing where justified.
• Written fee terms: agreed stage by stage, never linked to the outcome.

Mistakes we see in prosecutions