NOORULLA KHAN versus KARNATAKA STATE POLLUTION CONTROL BOARD & ANR. on 13 July 2021

1. Leave granted.

2. This appeal challenges the order dated 13.03.2020 passed bythe High Court of Karnataka, Dharwad Bench, in Criminal AppealNo.2637 of 2011.

3. Sandur Gram Panchayat, Sandur, District Bellary, Karnatakaand the appellant, who at the relevant time was Chief Officer of saidGram Panchayat, were accused of having committed offences punishableunder Sections 43 and 44 of The Water (Prevention and Control ofPollution) Act, 1974 (“the Water Act” for short).

4. By judgment and order dated 28.04.2006 passed by the CivilJudge (Junior Division) and Judicial Magistrate First Class, Sandur, inCC No.375 of 2002, the appellant was found guilty of the offences withwhich he was charged and was sentenced to undergo simple imprisonmentfor one year and six months and to pay fine of Rs.1000/- on both thecounts. The sentences were to run concurrently.

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A5. The appeal preferred by the appellant was allowed by the II-Additional Sessions Judge, Bellary by his order dated 19.06.2010 only onthe ground that being a public servant, the appellant was entitled to theprotection under Section 197 of the Code of Criminal Procedure, 1973(“the Code” for short) and in the absence of requisite sanction, hisprosecution was invalid.B

6. The original complainant (Karnataka State Pollution ControlBoard) being aggrieved, filed Criminal Appeal No.2637 of 2011 beforethe High Court of Karnataka, Dharwad Bench. By its judgment andorder dated 13.03.2020, the High Court set-aside the view taken by thelower Appellate Court. Since the matter was not considered by the lowerCAppellate Court on merits, the High Court remitted the matter back tothe lower Appellate Court for fresh consideration on merits.

7. During the course of its judgment, the High Court relied uponthe decision rendered by the Division Bench of the High Court in WritPetition No.30610 of 2008 (V.C. Chinappa Goudar v. Karnataka StateDPollution Control Board & Another) and came to the conclusion thatthe protection under Section 197 of the Code would not be available.

8. We heard Mr. Shailesh Madiyal, learned Advocate for theappellant, Mr. Purushottam Sharma Tripathi, learned Advocate for theoriginal Complainant and Ms. Aishwarya Bhati, learned Additional SolicitorEGeneral who ably assisted us at our request.

9. The decision relied upon by the High Court in Writ PetitionNo.30610 of 2008 was directly under challenge before this Court in V.C.Chinnappa Goudar v. Karnataka State Pollution Control Board[1]. Inthat decision, this Court considered the scope and applicability of SectionF48 of the Water Act and found that “the Head of the Department” byvirtue of deeming provision would be deemed to be guilty and, as such,the protection under Section 197 of the Code would stand excluded. Therelevant discussion on the point was:

“6. As against the above submission, Mr A. Mariarputham, learnedGSenior Counsel for the respondent by drawing our attention toSection 5 CrPC and Section 48 of the 1974 Act, contended thatunder Section 48 there is a rebuttable presumption insofar as theguilt of the offence is concerned as against the Head of theDepartment in respect of any offence said to have been committed NOORULLA KHAN v. KARNATAKA STATE POLLUTION CONTROLBOARD [UDAY UMESH LALIT, J.]

by any department of the Government and that, if Section 197sanction is held to be mandatory even for proceeding against Headof the Department of Government Department, the same woulddirectly conflict with Section 5 CrPC and consequently Section 60of the 1974 Act gets attracted. According to the learned SeniorCounsel, if the application of Section 197 is held to be attractedand in the event of the sanction being refused by prosecution thatby itself would be an impediment for the operation of the deemedfiction contained in Section 48 of the 1974 Act. The learned SeniorCounsel, therefore, contended that in such an event there wouldbe a direct conflict of Section 48 of the 1974 Act with Section 197CrPC and consequently Section 60 of the 1974 Act would comeinto play which has an overriding effect on any other enactmentother than the 1974 Act.

7. Having considered the respective submissions, we find force inthe submission of Mr A. Mariarputham, learned Senior Counselfor the respondents. As rightly pointed out by the learned SeniorCounsel under Section 48, the guilt is deemed to be committed themoment the offence under the 1974 Act is alleged against theHead of the Department of a government department. It is arebuttable presumption and under the proviso to Section 48, theHead of the Department will get an opportunity to demonstratethat the offence was committed without his knowledge or that inspite of due diligence to prevent the commission of such an offence,the same came to be committed. It is far different from sayingthat the safeguard provided under the proviso to Section 48 of the1974 Act would in any manner enable the Head of the Departmentof the government department to seek umbrage under Section197 CrPC and such a course if permitted to be made that wouldcertainly conflict with the deemed fiction power created underSection 48 of the 1974 Act.

8. In this context, when we refer to Section 5 CrPC, the saidsection makes it clear that in the absence of specific provisions tothe contrary, nothing contained in the Criminal Procedure Codewould affect any special or local laws providing for any specialform or procedure prescribed to be made applicable. There is nospecific provision providing for any sanction to be secured forproceeding against a public servant under the 1974 Act. If one AB

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Acan visualise a situation where Section 197 CrPC is made applicablein respect of any prosecution under the 1974 Act and in that processthe sanction is refused by the State by invoking Section 197 CrPCthat would virtually negate the deeming fiction provided underSection 48 by which the Head of the Department of a governmentdepartment would otherwise be deemed guilty of the offence underBthe 1974 Act. In such a situation the outcome of application ofSection 197 CrPC by resorting to reliance placed by Section 4(2)CrPC would directly conflict with Section 48 of the 1974 Act andconsequently Section 60 of the 1974 Act would automatically comeinto play which has an overriding effect over any other enactmentCother than the 1974 Act.”

10. In a subsequent decision of this Court, Karnataka StatePollution Control Board v. B. Heera Naik[2], it was observed that theCommissioner of City Municipal Council and Chief Officers of the CityMunicipal Council would not strictly be called “Heads of the Departments”Dfor the purposes of Section 48 of the Water Act. It was however heldthat such officials would still come under the provisions of Section 47 ofthe Water Act. The decision of the High Court quashing the complaintwas thus set-aside and the concerned Magistrate was directed to proceedwith the complaint.

E11. What emerges from these decisions of this Court is:

a.If the violation of the provisions of the Water Act was atthe hands of a Department, subject to the satisfaction of therequirements under Section 48 of the Water Act, “the Headof the Department” would be deemed to be guilty. This wouldFof course be subject to the defences which are available tohim to establish whether the offence in question wascommitted without his knowledge or that he had exercisedall due diligence to prevent the commission of such offence.

b.By virtue of the decision of this Court in V.C. ChinnappaGGoudar (Supra), because of deeming fiction under Section48 of the Water Act, the protection under Section 197 of theCode would not be available and the matter ought to beconsidered de hors such protection.

c.If the concerned public servant happens to be a Chief Officeror Commissioner of a Municipal Council or Town Panchayat,he cannot strictly be called “the Head of the Department ofthe Government”. Therefore, in terms of decision of this Courtin B. Heera Naik (Supra), the matter would not come underSection 48 of the Water Act. But the matter would comedirectly under Section 47 of the Water Act. According tosaid decision, even in such cases, the deeming fiction availableunder Section 47 of the Water Act would dis-entitle the publicservant from the protection under Section 197 of the Code.

d.If the offenders are other than public servants or where theprincipal offenders are corporate entities in private sectors,the question of protection under Section 197 would not arise.

12. If we consider the present matter in the light of these postulates,the case stands completely covered by the decision of this Court inB. Heera Naik (Supra).

13. The High Court was, therefore, right and justified in setting-aside the decision of the lower Appellate Court, which was purely basedon the issue of the applicability of Section 197 of the Code. In thecircumstances, the High Court rightly remitted the matter to the lowerAppellate Court to be considered afresh on merits.

14. We, therefore, affirm the view taken by the High Court anddismiss this appeal.

15. Needless to say that the instant matter was dealt with by theHigh Court and this Court from the standpoint of the applicability ofSection 197 of the Code and the matter, after remission, shall be consideredpurely on its own merits.

Ankit Gyan

Appeal dismissed.

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