Full Judgment Text
CRIMINAL APPEAL NO,. 755 OF 2010
ITEM NO.4 COURT NO.7 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No. 755/2010
V.C.CHINNAPPA GOUDAR Appellant(s)
VERSUS
KAR.STATE POLLUTION CONTROL BD.& ANR. Respondent(s)
(With office report)
WITH SLP(Crl) No. 7732/2010
[L.B. HIREMATH V. KARNATAKA STATE POLLUTION CONTROL BOARD & ANR.]
(With Office Report)
Date : 10/03/2015 These Matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
For Appellant(s) Mr. S. N. Bhat, A.O.R.
For Respondent(s) Mr. A. Mariarputham, Sr. Adv.
For RR 1 Mr. E. C. Vidya Sagar, A.O.R.
Ms. Jennifer John, Adv.
Mr. Subhash Chandra Sagar, Adv.
For RR 2 Mr. V.N. Raghupathy, A.O.R.
Mr. Parikshit P. Angadi, Adv.
Mr. Sanjay R. Hegde, A.O.R.
UPON hearing counsel the Court made the following
O R D E R
Heard learned counsel for the parties.
Leave granted in SLP(Crl) No. 7732 of 2010.
For the reasons stated in the signed reportable
judgment, the appeals fail and the same are
dismissed.
Signature Not Verified
[KALYANI GUPTA]
[SHARDA KAPOOR]
Digitally signed by
Kalyani Gupta
Date: 2015.03.19
16:30:12 IST
Reason:
COURT MASTER
COURT MASTER
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE.]
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CRIMINAL APPEAL NO,. 755 OF 2010
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 755 OF 2010
V.C. CHINNAPPA GOUDAR ….. APPELLANT
VERSUS
KARNATAKA STATE POLLUTION CONTROL
BOARD & ANR. ….. RESPONDENTS
WITH
CRIMINAL APPEAL NO. 464 OF 2015
[ARISING OUT OF S.L.P. (CRL.) NO.7732 OF 2010]
L.B. HIREMATH ….. APPELLANT
VERSUS
KARNATAKA STATE POLLUTION CONTROL
BOARD & ANR. ….. RESPONDENTS
J U D G M E N T
FAKKIR MOHAMED IBRAHIM KALIFULLA J.
Heard learned counsel for the parties.
2. Leave granted in SLP(Crl.) 7732 of 2010.
3. By the impugned judgment in these appeals, the
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CRIMINAL APPEAL NO,. 755 OF 2010
Division Bench of the High Court dismissed the
application under Articles 226 and 227 of the
Constitution of India for quashing the complaint and all
other proceedings in C.C. No.758/2005/367/08 on the file
of J.M.F.C., Nippani, Judicial Magistrate, First Class,
Sankeshwar. As the issue dealt with by the Division
Bench of the High Court is identical, both the appeals
are disposed of by this common order.
4. The appellant in Criminal Appeal No. 755 of 2010 was
holding the post of Commissioner and the appellant in
the case of Criminal Appeal arising out of SLP(Crl) No.
7732 of 2010 was in the post of Chief Officer Grade II.
The question that was posed for consideration before the
Division Bench was that both the appellants admittedly
being public servants, the prosecution as against them
could not have been lodged under Section 48 of the Water
(Prevention and control of Pollution) Act, 1974
[hereinafter called the '1974 Act']. The said
contention was raised on the footing that being public
servants, sanction under Section 197 Cr.P.C. was
required before the prosecution was launched against
them. The Division Bench held that by virtue of Section
48 read along with Section 49(1) of the 1974 Act, there
was a clear conflict with Sections 415 and 197 of the
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CRIMINAL APPEAL NO,. 755 OF 2010
Criminal Procedure Code and consequently Section 60 of
the 1974 Act would operate and, therefore, the
protection claimed by the appellants under Section 197
Cr.P.C. cannot be extended to them.
5. Mr. Bhat in his submissions after drawing our
attention to Sections 4(2)(5) and 197 of the Cr.P.C. as
well as Sections 48 and 49 of the 1974 Act contended
that the 1974 Act does not in any way conflict with
Section 197 Cr.P.C. and that and when once the
appellants are indisputably public servants, without
getting appropriate sanction from the Government they
could not have been proceeded against under the 1974
Act. Learned counsel while drawing support from Section
4(2) Cr.P.C. contended that getting a sanction under
Section 197 is not prohibited under the provisions of
the 1974 Act and that there being no other provision
under the said Act contrary to the prescription
contained in Section 197 Cr.P.C. by virtue of
application of Section 4(2) Cr.P.C., the requirement of
getting a sanction under Section 197 for prosecuting the
appellants under the 1974 Act was mandatory.
6. As far as Section 49 of the 1974 Act is concerned,
the counsel contended that though the heading of the
said provision states “Cognizance of Offences” the said
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CRIMINAL APPEAL NO,. 755 OF 2010
Section is mainly intended for the concerned authority
to file the case against the accused by placing the
complaint before the concerned Court and the
prescription contained in the said Section are intended
only for fulfilling the said requirement and, therefore,
going by the heading of the said Section it cannot be
held that the Magistrate can straight away take
cognizance of an offence de hors the non-compliance of
the requirements under Section 197 Cr.P.C.
7. As against the above submission, Mr. A.
Mariarputham, learned senior counsel for the respondent
by drawing our attention to Section 5 Cr.P.C. 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 of Cr.P.C. and consequently Section 60 of
the 1974 Act gets attracted. According to learned
senior counsel, if the application of Section 197 is
held to be attracted and in the event of the sanction
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CRIMINAL APPEAL NO,. 755 OF 2010
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 Cr.P.C. 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.
8. Having considered the respective submissions, we
find force in the submission of Mr. A. Mariparputham,
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
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CRIMINAL APPEAL NO,. 755 OF 2010
the Department of the Government Department to seek
umbrage under Section 197 Cr.P.C. 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.
9. In this context, when we refer to Section 5 Cr.P.C.,
the said Section makes it clear that in the absence of
specific provisions to the contrary, nothing contained
in the Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. that would
virtually negate the deeming fiction provided under
Section 48 by which the Head of the Department of
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 Cr.P.C. by
resorting to reliance placed by Section 4(2) Cr.P.C.
would directly conflict with Section 48 of the 1974 Act
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CRIMINAL APPEAL NO,. 755 OF 2010
and consequently Section 60 of the 1974 Act would
automatically come into play which has an over riding
effect over any other enactment other than the 1974 Act.
10. In the light of the said statutory prescription
contained in Section 48, we find that there is no scope
for invoking Section 197 Cr.P.C. even though the
appellants are stated to be public servants.
11. We, therefore, do not find any scope to interfere
with the judgment impugned in these appeals. The
appeals fail and the same are dismissed.
12. Counsel for the appellants states that the
appellants may be permitted to appear through their
counsel. If and when the appellants apply for
dispensing with their appearance by invoking Section 205
Cr.P.C. by filing special vakalat, the same shall be
considered favourably by the learned trial Judge.
…...................................J
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
…...................................J
[SHIVA KIRTI SINGH]
NEW DELHI
MARCH 10, 2015.
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