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The Supreme Court in its Judgement dated July 13, 2021 has observed that protection of sanction under section 197 of the Code of Criminal Procedure, 1973 is not available to a public servant prosecuted under section 48 of the Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”). 

Bench of Justice UU Lalit and Justice Ajay Rastogi while upholding the decision of the Karnataka High Court dated March 13, 2020 observed that,

“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 present matter, Norulla Khan, Chief Officer of Sandur Gram Panchayat, Sandur, District Bellary, Karnataka was accused of having committed offences punishable under Sections 43 and 44 of The Water Act, 1974.

On April 28, 2006, Civil Judge (Junior Division) and Judicial Magistrate First Class found Khan 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 a fine of Rs.1000/- on both the counts. In an appeal against the Civil Judge order, the Additional Sessions Judge on June 19, 2010 allowed Khan’s appeal on the ground that being a public servant he was entitled under section 197 of CrPC, 1973 and thereafter his prosecution was invalid in the absence of requisite sanction.

Assailing the order passed by Additional Sessions Judge Karnataka State Pollution Control Board approached the High Court. 

The High Court while relying on its decision rendered in VC Chinappa Goudar v. Karnataka State Pollution Control Board & Another set aside the lower court’s view and held that protection under section 197 of CrPC, 1973 was not available. Since the matter was not considered by the lower Appellate Court on merits, the High Court remitted the matter back to the Appellate Court for fresh consideration on merits.

The Top Court to reaffirm the view taken by the High Court relied on the postulates of its judgement in Karnataka State Pollution Control Board v. B. Heera Naik (2020) 16 SCC 298 in which it was observed that:

• 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.
• 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.
• 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 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.
• 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.

Case Title: Noorulla Khan V. Karnataka State Pollution Control Board & Anr.| Criminal Appeal No.599 Of 2021