Protection Of Sanction U/s 197 CrPC Not Available For Public Servants Prosecuted U/s 48 Water Act: Supreme Court

In a judgment pronounced last week, the Supreme Court observed that protection of sanction under Section 197 of Code of Criminal Procedure is not available to public servants prosecuted under Section 48 the Water (Prevention and Control of Pollution) Act.

The bench comprising Justices Uday Umesh Lalit and Ajay Rastogi, referring to previous judgments in V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board and Karnataka State Pollution Control Board vs. B. Heera Naik observed:

1. 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.
2. 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.
3. 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, 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. 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.
4. 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.

In this case, Sandur Gram Panchayat, Sandur, District Bellary, Karnataka and the Chief Officer of said Gram Panchayat, were accused of having committed offences  punishable under Sections 43 and 44 of the Water Act. The Judicial Magistrate found the officer guilty of these offences and convicted him. Sessions Judge, allowing the appeal, held that he was entitled to the protection under Section 197 CrPC and in the absence of requisite sanction, his prosecution was invalid. The High Court, while allowing the appeal filed by Karnataka State Pollution Control Board  observed that the protection under Section 197 of the Code would not be available. Since the matter was not considered by the lower Appellate Court on merits, the High Court remitted the matter back it for fresh consideration on merits.

In appeal filed by the accused, the bench noted that the High Court has referred to the decision in V.C. Chinnappa Goudar case, in which it was 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. Also referring to B. Heera Naik, case, the bench upheld the High Court judgment and observed:

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.

Case: Noorulla Khan vs. Karnataka State Pollution Control Board [CrA 599 OF 2021]

Coram: Justices Uday Umesh Lalit and Ajay Rastogi

Counsel: AOR Shailesh Madiyal, AOR Purushottam Sharma Tripathi, AOR Vikram Hegde, ASG Aishwarya Bhati 

Citation: LL 2021 SC 305

Click here to Read/Download Judgment

Read Judgment