What emerges from these decisions of this Court
is:
a. If the violation of the provisions of the Water Act
was at the hands of a Department, subject to the
satisfaction of the requirements under Section 48
of the Water Act, “the Head of the Department” would
be deemed to be guilty. This would of course be
subject to the defences which are available to him
to establish whether the offence in question was
committed without his knowledge or that he had
exercised all due diligence to prevent the
commission of such offence.
b. By virtue of the decision of this Court in V.C.
Chinnappa Goudar (Supra), because of deeming fiction
under Section 48 of the Water Act, the protection
under Section 197 of the Code would not be available
and the matter ought to be considered de hors such
protection.
c. If the concerned public servant happens to be a
Chief Officer or Commissioner of a Municipal Council
or Town Panchayat, he cannot strictly be called “the
Head of the Department of the Government”.
Therefore, in terms of decision of this Court in B.
Heera Naik (Supra), the matter would not come under
Section 48 of the Water Act. But the matter would
come directly under Section 47 of the Water Act.
According to said decision, even in such cases, the
deeming fiction available under Section 47 of the
Water Act would dis-entitle the public servant from
the protection under Section 197 of the Code.{Para 17}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.599 OF 2021
NOORULLA KHAN Vs KARNATAKA STATE POLLUTION
CONTROL BOARD
Author: UDAY UMESH LALIT, J
Dated: JULY 13,2021.
.
1. Leave granted.
2. This appeal challenges the order dated
13.03.2020 passed by the High Court of Karnataka,
Dharwad Bench, in Criminal Appeal No.2637 of 2011.
3. Sandur Gram Panchayat, Sandur, District
Bellary, Karnataka and the appellant, who at the
relevant time was Chief Officer of said Gram
Panchayat, were accused of having committed offences
punishable under Sections 43 and 44 of The Water
(Prevention and Control of Pollution) Act, 1974
(“the Water Act” for short).
4. By judgment and order dated 28.04.2006 passed
by the Civil Judge (Junior Division) and Judicial
Magistrate First Class, Sandur, in CC No.375 of
2002, the appellant was found guilty of the offences
with which he was charged and was sentenced to
undergo simple imprisonment for one year and six
months and to pay fine of Rs.1000/- on both the
counts. The sentences were to run concurrently.
5. The appeal preferred by the appellant was
allowed by the II-Additional Sessions Judge, Bellary
by his order dated 19.06.2010 only on the ground
that being a public servant, the appellant was
entitled to the protection under Section 197 of the
Code of Criminal Procedure, 1973 (“the Code” for
short) and in the absence of requisite sanction, his
prosecution was invalid.
6. The original complainant (Karnataka State
Pollution Control Board) being aggrieved, filed
Criminal Appeal No.2637 of 2011 before the High
Court of Karnataka, Dharwad Bench. By its judgment
and order dated 13.03.2020, the High Court set-aside
the view taken by the lower Appellate Court. Since
the matter was not considered by the lower Appellate
Court on merits, the High Court remitted the matter
back to the lower Appellate Court for fresh
consideration on merits.
7. During the course of its judgment, the High
Court relied upon the decision rendered by the
Division Bench of the High Court in Writ Petition
No.30610 of 2008 (V.C. Chinappa Goudar v. Karnataka
State Pollution Control Board & Another) and came to
the conclusion that the protection under Section 197
of the Code would not be available.
8. We heard Mr. Shailesh Madiyal, learned Advocate
for the appellant, Mr. Purushottam Sharma Tripathi,
learned Advocate for the original Complainant and
Ms. Aishwarya Bhati, learned Additional Solicitor
General who ably assisted us at our request.
9. The decision relied upon by the High Court in
Writ Petition No.30610 of 2008 was directly under
challenge before this Court in V.C. Chinnappa Goudar
v. Karnataka State Pollution Control Board1. In
that decision, this Court considered the scope and
applicability of Section 48 of the Water Act and
found that “the Head of the Department” by virtue
of deeming provision would be deemed to be guilty
and, as such, the protection under Section 197 of
the Code would stand excluded. The relevant
discussion on the point was:
“6. As against the above submission, Mr A.
Mariarputham, learned Senior Counsel for the
respondent by drawing our attention to
Section 5 CrPC and Section 48 of the 1974
Act, contended that under Section 48 there is
a rebuttable presumption insofar as the guilt
of the offence is concerned as against the
Head of the Department in respect of any
offence said to have been committed by any
department of the Government and that, if
Section 197 sanction is held to be mandatory
even for proceeding against Head of the
Department of Government Department, the same
would directly conflict with Section 5
CrPC and consequently Section 60 of the 1974
Act gets attracted. According to the learned
Senior Counsel, if the application of Section
197 is held to be attracted and in the event
of the sanction being refused by prosecution
that by itself would be an impediment for the
operation of the deemed fiction contained in
Section 48 of the 1974 Act. The learned
Senior Counsel, therefore, contended that in
1 (2015) 14 SCC 535
such an event there would be a direct
conflict of Section 48 of the 1974 Act with
Section 197 CrPC and consequently Section 60
of the 1974 Act would come into play which
has an overriding effect on any other
enactment other than the 1974 Act.
7. Having considered the respective
submissions, we find force in the submission
of Mr A. Mariarputham, learned Senior Counsel
for the respondents. As rightly pointed out
by the learned Senior Counsel under Section
48, the guilt is deemed to be committed the
moment the offence under the 1974 Act is
alleged against the Head of the Department
of a government department. It is a
rebuttable presumption and under the proviso
to Section 48, the Head of the Department
will get an opportunity to demonstrate that
the offence was committed without his
knowledge or that in spite of due diligence
to prevent the commission of such an offence,
the same came to be committed. It is far
different from saying that the safeguard
provided under the proviso to Section 48 of
the 1974 Act would in any manner enable the
Head of the Department of the government
department to seek umbrage under Section 197
CrPC and such a course if permitted to be
made that would certainly conflict with the
deemed fiction power created under Section
48 of the 1974 Act.
8. In this context, when we refer to Section
5 CrPC, the said section makes it clear that
in the absence of specific provisions to the
contrary, nothing contained in the Criminal
Procedure Code would affect any special or
local laws providing for any special form or
procedure prescribed to be made applicable.
There is no specific provision providing for
any sanction to be secured for proceeding
against a public servant under the 1974 Act.
If one can visualise a situation where
Section 197 CrPC is made applicable in
respect of any prosecution under the 1974 Act
and in that process the sanction is refused
by the State by invoking Section 197 CrPC
that would virtually negate the deeming
fiction provided under Section 48 by which
the Head of the Department of a government
department would otherwise be deemed guilty
of the offence under the 1974 Act. In such a
situation the outcome of application of
Section 197 CrPC by resorting to reliance
placed by Section 4(2) CrPC would directly
conflict with Section 48 of the 1974 Act and
consequently Section 60 of the 1974 Act would
automatically come into play which has an
overriding effect over any other enactment
other than the 1974 Act.”
10. In a subsequent decision of this Court,
Karnataka State Pollution Control Board v. B. Heera
Naik (2020) 16 SCC 298 : 2019 SCC OnLine SC 1528, it was observed that the Commissioner of City
Municipal Council and Chief Officers of the City
Municipal Council would not strictly be called
“Heads of the Departments” for the purposes of
Section 48 of the Water Act. It was however held
that such officials would still come under the
provisions of Section 47 of the Water Act. The
decision of the High Court quashing the complaint
was thus set-aside and the concerned Magistrate was
directed to proceed with the complaint.
11. What emerges from these decisions of this Court
is:
a. If the violation of the provisions of the Water Act
was at the hands of a Department, subject to the
satisfaction of the requirements under Section 48
of the Water Act, “the Head of the Department” would
be deemed to be guilty. This would of course be
subject to the defences which are available to him
to establish whether the offence in question was
committed without his knowledge or that he had
exercised all due diligence to prevent the
commission of such offence.
b. By virtue of the decision of this Court in V.C.
Chinnappa Goudar (Supra), because of deeming fiction
under Section 48 of the Water Act, the protection
under Section 197 of the Code would not be available
and the matter ought to be considered de hors such
protection.
c. If the concerned public servant happens to be a
Chief Officer or Commissioner of a Municipal Council
or Town Panchayat, he cannot strictly be called “the
Head of the Department of the Government”.
Therefore, in terms of decision of this Court in B.
Heera Naik (Supra), the matter would not come under
Section 48 of the Water Act. But the matter would
come directly under Section 47 of the Water Act.
According to said decision, even in such cases, the
deeming fiction available under Section 47 of the
Water Act would dis-entitle the public servant from
the protection under Section 197 of the Code.
d. If the offenders are other than public servants or
where the principal 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 in B. 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 based on the issue
of the applicability of Section 197 of the Code.
In the circumstances, the High Court rightly
remitted the matter to the lower Appellate Court to
be considered afresh on merits.
14. We, therefore, affirm the view taken by the
High Court and dismiss this appeal.
15. Needless to say that the instant matter was
dealt with by the High Court and this Court from the
standpoint of the applicability of Section 197 of
the Code and the matter, after remission, shall be
considered purely on its own merits.
......................J.
[UDAY UMESH LALIT]
......................J.
[AJAY RASTOGI]
NEW DELHI;
JULY 13,2021.
No comments:
Post a Comment