In the instant case, the appeal has been filed against the order passed by the high court of Karnataka. The former Chief Officer of the Gram Panchayat, Karnataka (appellant) was accused of having committed offenses punishable under Sections 43 and 44 of The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as “Water Act, 1974”).
At the outset, the appellant was found guilty of the offences by the trial court. Herein, challenged the verdict passed by the trial court before the Sessions Court and II-Additional Sessions Judge, Bellary, on the ground that the appellant is a public servant was entitled to the protection under Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr. P.C, 1973”)
Being aggrieved by the order passed thru the Session Court and II-Additional Session Judge, the complainant filed an appeal before the high court of Karnataka. Subsequently, the order passed by the lower appellate court was set aside stating that the instant case was not decided on merits and the protection under Section 197 of the Cr. P.C, 1973 is not entitled.
In the instant appeal, the bench referred to the supreme court judgements in the V.C. Chinnappa Goudar versus. Karnataka State Pollution Control Board and Karnataka State Pollution Control Board versus. B. Heera Naik.
Furthermore, the High court bench made certain observations:
- The head of the department will be deemed to be guilty subject to satisfaction of the requirement under section 48 of the Water Act, 1974 and if there is a violation of provisions of the Water Act, 1974. The defense against the charges will be available to the head of the department to prove that there is due diligence on part of to prevent such commission of the offense.
- Protection under Section 197 Cr. P.C, 1973 is not available because of the deeming fiction under section 47 of Water Act, 1974.
- A Chief Officer or Commissioner of a Municipal Councilor Town Panchayat cannot be strictly called “the Head of the Department of the Government”. accordingly, the matter would come directly under Section 47 of the Water Act, 1974 and not under section 48 of the Water Act, 1974 even in such case deeming fiction available under section 47 of the Water Act, 1974 would not entitle public servants from protection under Section 197 of the Cr. P.C, 1973.
- The question of section 197 of Cr. P.C, 1973 will not arise If the offenders are other than public servants or where the principal offenders are corporate entities in private sectors.
