2015 (3) TMI 1409 - SC - Indian Laws

Requirement of sanction u/s 197 Code of Criminal Procedure before launching the prosecution - rebuttable presumption insofar as the guilt of the offence is concerned - HELD THAT - 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 Code of Criminal Procedure 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. 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure by resorting to reliance placed by Section 4(2) Code of Criminal Procedure 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 over riding effect over any other enactment other than the 1974 Act. There is no scope for invoking Section 197 Code of Criminal Procedure even though the Appellants are stated to be public servants - Appeal dismissed.

Summary

Issues:
Interpretation of Section 48 and Section 49 of the Water (Prevention and Control of Pollution) Act, 1974 in relation to the requirement of sanction under Section 197 of the Code of Criminal Procedure for prosecuting public servants.

Analysis:
The judgment dealt with the issue of whether public servants could be prosecuted under the Water (Prevention and Control of Pollution) Act, 1974 without obtaining the necessary sanction under Section 197 of the Code of Criminal Procedure. The Division Bench of the High Court dismissed the application to quash the complaint and proceedings against the appellants, who were public servants. The contention raised was that as public servants, sanction under Section 197 was required before prosecution. The Division Bench held that there was a conflict between the provisions of the 1974 Act and the Code of Criminal Procedure, and the protection under Section 197 could not be extended to the appellants.

The appellant's counsel argued that there was no conflict between the 1974 Act and Section 197 of the Code of Criminal Procedure. They contended that obtaining sanction under Section 197 was mandatory for prosecuting public servants under the 1974 Act. The counsel also highlighted that Section 49 of the 1974 Act was intended for the concerned authority to file a case against the accused, emphasizing the necessity of complying with Section 197 requirements.

On the other hand, the respondent's senior counsel argued that requiring sanction under Section 197 for prosecuting the Head of the Department would conflict with Section 5 of the Code of Criminal Procedure and Section 48 of the 1974 Act. They contended that if the sanction was refused, it would impede the operation of the deemed fiction under Section 48 of the 1974 Act, leading to a direct conflict with Section 197.

The court, after considering the submissions, agreed with the respondent's senior counsel. It was noted that under Section 48 of the 1974 Act, guilt was deemed to be committed when an offense was alleged against the Head of the Department, and the provision allowed for a rebuttable presumption. The court emphasized that allowing public servants to seek protection under Section 197 would conflict with the deemed fiction power created under the 1974 Act.

In conclusion, the court found that there was no scope for invoking Section 197 of the Code of Criminal Procedure for prosecuting public servants under the 1974 Act. The appeals were dismissed, and the judgment of the Division Bench was upheld. The court also permitted the appellants to appear through their counsel and stated that any application for dispensing with their appearance would be considered favorably by the trial judge.