Noorulla Khan vs Karnataka State Pollution Control Board & Another

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.599 OF 2021 (Arising out of SLP (Crl.) No.4658/2020)

NOORULLA KHAN …Appellant

VERSUS

KARNATAKA STATE POLLUTION CONTROL BOARD & ANR. …Respondents

J U D G M E N T

UDAY UMESH LALIT, J.

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 Signature Not Verified Digitally signed by Dr. Mukesh Nasa Date: 2021.07.17 09:52:55 IST Reason: relevant time was Chief Officer of said Gram

Panchayat, were accused of having committed offences 2

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 3

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. 4

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 5

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 6

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

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” 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

2 (2020) 16 SCC 298 : 2019 SCC OnLine SC 1528 7

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 8 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.

9

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.

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ITEM NO.20 COURT NO.3 SECTION II-C (HEARING THROUGH VIDEO CONFERENCING)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (Crl.) No.4658/2020

(Arising out of impugned final judgment and order dated 13-03-2020 in CRLA No.2637/2011 passed by the High Court of Karnataka Circuit Bench at Dharwad)

NOORULLA KHAN Petitioner(s)

VERSUS

KARNATAKA STATE POLLUTION CONTROL BOARD & ANR. Respondent(s)

Date : 13-07-2021 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE AJAY RASTOGI

Counsel for the Parties:

Mr. Shailesh Madiyal, AOR Mr. Sudhanshu Prakash, Adv. Ms. Rakhi M., Adv.

Mr. Vaibhav Sabharwal, Adv. Ms. Sruthi Iyer, Adv.

Ms. Aishwarya Bhati, ASG Ms. Archana Pathak Dave, Adv. Mr. Rajat Nair, Adv.

Mr. Arvind Kumar Sharma, AOR

Mr. Purushottam Sharma Tripathi, AOR Mr. S.J. Amith, Adv.

Mr. Vikram Hegde, AOR Ms. Brunda K L, Adv.

Mr. Shantanu Lakhotia, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

11 The appeal is dismissed, in terms of the Signed Reportable

Judgment placed on the file.

Pending applications, if any, also stand disposed of.

(MUKESH NASA) (VIRENDER SINGH) COURT MASTER BRANCH OFFICER