Supreme Court Upholds Prosecution of Public Servants Under Water Act: Noorulla Khan vs. Karnataka State Pollution Control Board (2021)

Date of the Judgment: 13 July 2021

Citation: 2021 INSC 440

Judges: Uday Umesh Lalit, J. and Ajay Rastogi, J.

Can a public servant, specifically a Chief Officer of a Gram Panchayat, be prosecuted for offenses under the Water Act without prior sanction? The Supreme Court addressed this critical question in a recent judgment, clarifying the interplay between the Water Act and the Code of Criminal Procedure. This case delves into whether the deeming provisions of the Water Act override the protection afforded to public servants under the Code of Criminal Procedure. The judgment was delivered by a two-judge bench comprising Justices Uday Umesh Lalit and Ajay Rastogi.

Case Background

The case originated from a complaint against Sandur Gram Panchayat and its Chief Officer, Mr. Noorulla Khan (the appellant), for offenses under Sections 43 and 44 of the Water Act. The Civil Judge (Junior Division) and Judicial Magistrate First Class, Sandur, found Mr. Khan guilty on 28 April 2006 and sentenced him to one year and six months of simple imprisonment and a fine of Rs. 1000 on both counts, with the sentences running concurrently. Mr. Khan appealed this decision.

Timeline:

Course of Proceedings

The II-Additional Sessions Judge, Bellary, allowed Mr. Khan’s appeal on 19 June 2010, citing that as a public servant, Mr. Khan was entitled to protection under Section 197 of the Code of Criminal Procedure, 1973, and that his prosecution was invalid without the required sanction. The Karnataka State Pollution Control Board, the original complainant, appealed this decision to the High Court of Karnataka, Dharwad Bench. The High Court, on 13 March 2020, set aside the lower appellate court’s decision, relying on a previous Division Bench decision in V.C. Chinappa Goudar v. Karnataka State Pollution Control Board. The High Court remitted the matter back to the lower appellate court for fresh consideration on merits, without the protection of Section 197 of the Code.

Legal Framework

The core legal provisions at play in this case are:

• Sections 43 and 44 of the Water (Prevention and Control of Pollution) Act, 1974: These sections outline the penalties for contravening the provisions of the Water Act.
• Section 47 of the Water (Prevention and Control of Pollution) Act, 1974: This section deals with offences by government departments.
• Section 48 of the Water (Prevention and Control of Pollution) Act, 1974: This section specifies that if an offense under the Water Act is committed by a government department, the Head of the Department is deemed guilty unless they prove the offense occurred without their knowledge or despite due diligence. The Court quoted the section as, “Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.”
• Section 197 of the Code of Criminal Procedure, 1973: This section provides protection to public servants from prosecution for acts done while acting or purporting to act in the discharge of their official duty, requiring prior sanction for such prosecution.
• Section 5 of the Code of Criminal Procedure, 1973: This section clarifies that the Code of Criminal Procedure does not affect special or local laws, unless specifically stated otherwise.
• Section 60 of the Water (Prevention and Control of Pollution) Act, 1974: This section states that the provisions of the Water Act have an overriding effect on any other enactment.

The Supreme Court considered how these provisions interact, particularly whether the deeming provision under Section 48 of the Water Act overrides the protection offered to public servants under Section 197 of the Code of Criminal Procedure.

Arguments

Appellant’s Arguments (Mr. Noorulla Khan):

• Mr. Khan argued that as a public servant, he was entitled to protection under Section 197 of the Code of Criminal Procedure, 1973, which requires prior sanction for his prosecution.
• He contended that the absence of this sanction invalidated the entire prosecution against him.

Respondent’s Arguments (Karnataka State Pollution Control Board):

• The Board argued that Section 48 of the Water Act creates a deeming fiction, making the Head of the Department guilty of an offense committed by the department.
• They submitted that the protection under Section 197 of the Code would directly conflict with this deeming fiction.
• They contended that Section 5 of the Code of Criminal Procedure clarifies that the Code does not affect special laws like the Water Act, and Section 60 of the Water Act provides an overriding effect over other enactments.
• The Board relied on the decision of the High Court in V.C. Chinappa Goudar v. Karnataka State Pollution Control Board, which held that the protection under Section 197 of the Code would not be available in cases under the Water Act due to the deeming provision under Section 48.

Additional Solicitor General’s Assistance:

• The Additional Solicitor General supported the arguments of the Karnataka State Pollution Control Board.

Innovativeness of the argument: The argument that Section 48 of the Water Act creates a deeming fiction that overrides the protection under Section 197 of the Code of Criminal Procedure was innovative as it highlighted the conflict between the two provisions and the overriding effect of the Water Act.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue addressed by the court was:

• Whether the protection under Section 197 of the Code of Criminal Procedure, 1973, is available to a public servant prosecuted for offenses under the Water (Prevention and Control of Pollution) Act, 1974, considering the deeming provision under Section 48 of the Water Act.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issue:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court upheld the High Court’s decision, dismissing Mr. Khan’s appeal. The Court affirmed that the protection under Section 197 of the Code of Criminal Procedure is not available to public servants in cases involving offenses under the Water Act, due to the deeming fiction under Sections 47 and 48 of the Water Act.

How each authority was viewed by the Court:

• V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board [(2015) 14 SCC 535]*: The Court relied on this precedent, stating that the deeming fiction under Section 48 of the Water Act excludes the protection of Section 197 of the Code.
• Karnataka State Pollution Control Board v. B. Heera Naik [(2020) 16 SCC 298]*: The Court applied the principles of this case, noting that even if a public servant is not strictly a “Head of Department,” the deeming fiction under Section 47 of the Water Act still dis-entitles them from the protection under Section 197 of the Code.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to ensure the effective implementation of the Water Act and to hold accountable those responsible for environmental pollution. The Court emphasized the deeming fiction under Sections 47 and 48 of the Water Act, which places a responsibility on the heads of departments and other officials to prevent pollution. The Court also considered that the Water Act is a special law with an overriding effect, as per Section 60 of the Water Act, and that the general protection under Section 197 of the Code of Criminal Procedure cannot impede the operation of the Water Act.

The Court’s reasoning was primarily based on legal interpretations and the application of statutory provisions, with a lesser emphasis on the factual aspects of the case. The legal considerations, particularly the interpretation of the Water Act and its overriding effect, played a dominant role in the decision.

The Court’s decision was based on the interpretation of the legal provisions and the precedents set by previous judgments. The Court emphasized the importance of the deeming provisions under the Water Act and the need to ensure that those responsible for environmental offenses are held accountable.

The Supreme Court quoted the following from the judgment:

• “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 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.”
• “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.”

There were no dissenting opinions in this case. The bench comprised two judges, both of whom agreed with the decision.

Key Takeaways

• Public servants, including Chief Officers of Gram Panchayats and Municipal Councils, cannot claim protection under Section 197 of the Code of Criminal Procedure for offenses under the Water Act.
• The deeming provisions under Sections 47 and 48 of the Water Act override the protection afforded to public servants under Section 197 of the Code.
• The Water Act is a special law with an overriding effect, as per Section 60 of the Water Act, and its implementation cannot be hindered by general protections under the Code of Criminal Procedure.
• Heads of Departments and other officials are responsible for preventing environmental pollution and can be held accountable for offenses under the Water Act.

Directions

The Supreme Court did not issue any specific directions, but it remitted the matter back to the lower appellate court for fresh consideration on merits, without the protection of Section 197 of the Code of Criminal Procedure.

Development of Law

The ratio decidendi of this case is that the deeming provisions under Sections 47 and 48 of the Water Act override the protection afforded to public servants under Section 197 of the Code of Criminal Procedure. This judgment reinforces the position that public servants cannot evade prosecution for offenses under the Water Act by claiming protection under Section 197 of the Code. This decision clarifies and reaffirms the legal position established in previous cases like V.C. Chinnappa Goudar and B. Heera Naik.

Conclusion

The Supreme Court’s judgment in Noorulla Khan vs. Karnataka State Pollution Control Board clarifies that public servants cannot claim protection under Section 197 of the Code of Criminal Procedure for offenses under the Water Act, due to the deeming provisions of Sections 47 and 48 of the Water Act. This decision reinforces the importance of environmental protection and ensures that those responsible for pollution are held accountable.