Water (Prevention and Control of Pollution) Act, 1974 – ss. 43, 44, 47 and 48 – Code of Criminal Procedure, 1973 – s. 197 – Gram Panchayat and the appellant, who at the relevant time was chief officer of said Gram Panchayat, were accused of having committed offences punishable u/ss. 43 and 44 of the 1974 Act – Civil Judge (Junior Division) and Judicial Magistrate First Class found appellant guilty of the offences – However, the Additional Session Judge held that the appellant was entitled to protection u/s.197 of Cr.P.C. and in the absence of requisite sanction, his prosecution was invalid – The High Court set aside the view taken by the lower Appellate Court and 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 – On appeal, held: 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 Karnataka State Pollution Control Board v. B. Heera Naik, the matter would not come u/s. 48 of the Water Act – But the matter would come directly u/s. 47 of the Water Act – According to said decision, even in such cases, the deeming fiction available u/s. 47 of the Water Act would dis-entitle the public servant from the protection u/s. 197 of the Code – Therefore, the High Court was right and justified in setting-aside the decision of the lower Appellate Court, which was purely based on the issue of the applicability of s.197 of the Cr.P.C. – In the circumstances, the High Court rightly remitted the matter to the lower Appellate Court to be considered afresh on merits.
Dismissing the appeal, the Court
HELD: 1. What emerges from the various decisions of the Supreme 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, 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, 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. [Para 11][248-E-H; 249-A-C]
2. If this Court considers the present matter in the light of these postulates, the case stands completely covered by the decision of this Court in B. Heera Naik. [Para 12][249-C-D]
3. 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. [Para 13][249-D-E]
V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board, (2015) 14 SCC 535; Karnataka State Pollution Control Board v. B. Heera Naik, (2020) 16 SCC 298: [2019] 17 SCR 305 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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