NOORULLA KHANversusKARNATAKA STATE POLLUTION CONTROL BOARD & ANR.

                         [2021] 7 S.C.R. 243                               243


                        NOORULLA KHAN                                      A
                                   v.
KARNATAKA STATE POLLUTION CONTROL BOARD & ANR.
                  (Criminal Appeal No.599 Of 2021)
                              JULY 13, 2021                                B
       [UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]
       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               C
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          D
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            E
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        F
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        G
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:                                                          H
                                  243
244            SUPREME COURT REPORTS                     [2021] 7 S.C.R.


A           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
B
      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
C     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
D     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
E     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
F     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
G     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]
H
 NOORULLA KHAN v. KARNATAKA STATE POLLUTION CONTROL                       245
                       BOARD

      V.C. Chinnappa Goudar v. Karnataka State Pollution                  A
      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.
                       Case Law Reference
                                                                          B
      (2015) 14 SCC 535         relied on                Para 9
      [2019] 17 SCR 305         relied on                Para 10
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.599 of 2021
                                                                          C
      From the Judgment and Order dated 13.03.2020 of the High Court
of Karnataka, Dharwad Bench in Criminal Appeal No.2637 of 2011.
       Ms. Aishwarya Bhati, ASG, Shailesh Madiyal, Sudhanshu Prakash,
Ms. Rakhi M., Vaibhav Sabharwal, Ms. Sruthi Iyer, Ms. Archana Pathak
Dave, Rajat Nair, Arvind Kumar Sharma, Purushottam Sharma Tripathi,       D
S. J. Amith, Vikram Hegde, Ms. Brunda K. L., Shantanu Lakhotia, Advs.
for the appearing parties.
      The Judgment of the Court was delivered by
      UDAY UMESH LALIT, J.
                                                                          E
      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      F
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       G
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.                           H
246                SUPREME COURT REPORTS                       [2021] 7 S.C.R.


A            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.
B
            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
C     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
D     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
E     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 Board 1. In
      that decision, this Court considered the scope and applicability of Section
F     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
G              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
H     1
          (2015) 14 SCC 535
NOORULLA KHAN v. KARNATAKA STATE POLLUTION CONTROL                        247
           BOARD [UDAY UMESH LALIT, J.]

   by any department of the Government and that, if Section 197           A
   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
                                                                          B
   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 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            C
   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      D
   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        E
   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             F
   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   G
   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
                                                                          H
248                 SUPREME COURT REPORTS                         [2021] 7 S.C.R.


A              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
B
               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
C              other than the 1974 Act.”
             10. In a subsequent decision of this Court, Karnataka State
      Pollution Control Board v. B. Heera Naik2, 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”
D     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.
E              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
F                    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
G                    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.

      2
H         (2020) 16 SCC 298
 NOORULLA KHAN v. KARNATAKA STATE POLLUTION CONTROL                               249
            BOARD [UDAY UMESH LALIT, J.]

      c.     If the concerned public servant happens to be a Chief Officer        A
             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
                                                                                  B
             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,       C
             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).
                                                                                  D
       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.
                                                                                  E
      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      F
purely on its own merits.


Ankit Gyan                                                    Appeal dismissed.


                                                                                  G




                                                                                  H