F.M Ibrahim Kalifulla, J.— Heard the learned counsel for the parties. Leave granted in SLP (Crl.) No. 7732 of 2010.
2. By the impugned judgment1 in these appeals, the 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 CC No. 758/2005/367/08 on the file of JMFC, 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.
3. 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 CrPC was required before the prosecution was launched against them. The Division Bench held2 that by virtue of Section 48 read along with Section 49(1) of the 1974 Act, there was a clear conflict with Sections 4, 5 and 197 of the Criminal Procedure Code and consequently Section 60 of the 1974 Act would operate and, therefore, the protection claimed by the appellants under Section 197 CrPC cannot be extended to them.
4. Mr Bhat in his submissions after drawing our attention to Sections 4(2), 5 and 197 CrPC 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 CrPC and that 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. The learned counsel while drawing support from Section 4(2) CrPC 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 CrPC by virtue of application of Section 4(2) CrPC, the requirement of getting a sanction under Section 197 for prosecuting the appellants under the 1974 Act was mandatory.
5. 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 section is mainly intended for the authority concerned to file the case against the accused by placing the complaint before the court concerned 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 straightaway take cognizance of an offence dehors the non-compliance with the requirements under Section 197 CrPC.
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 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 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.
9. In the light of the said statutory prescription contained in Section 48, we find that there is no scope for invoking Section 197 CrPC even though the appellants are stated to be public servants.
10. We, therefore, do not find any scope to interfere with the judgment impugned in these appeals. The appeals fail and the same are dismissed.
11. The 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 CrPC by filing special vakalat, the same shall be considered favourably by the learned trial Judge.